(Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the order of detention, dated 12.12.2008, made by the 1st respondent, terming the detenu by name S.Sankaralingam alias Sankar, the son of the petitioner's brother, as a 'Goonda'.
2.Pursuant to the recommendations made by the sponsoring authority that the detenu is involved in two adverse cases and in one ground case in Crime No.1026/2008 registered under Sections 341, 307 and 506(ii) on the file of Melapalayam Police Station, the detaining authority, the 1st respondent, after looking into the materials available, formed an opinion that the activities of the detenu were prejudicial to the maintenance of public order and hence he has got to be detained under the provisions of the Tamil Nadu Act 14/1982 terming him as a 'Goonda'. Accordingly, the detention order, which is under challenge in this petition, came to be passed by the 1st respondent on 12.12.2008.
3.Advancing arguments on behalf of the petitioner, the paternal uncle of the detenu, the learned counsel urged two grounds before this Court in his attempt to assail the order of detention. Firstly, he would submit that pursuant to the registration of the ground case, the detenu surrendered before the Judicial Magistrate, Tenkasi, on 31.10.2008 and he was remanded to judicial custody; that while he was in judicial custody, he made an application in Cr.M.P.No.4486/2008 before the Sessions Court, Tirunelveli, but the same was dismissed on 10.12.2008 and thereafter no application was filed; that while the matter stood thus, the detaining authority has stated in the grounds of that there was real possibility of the detenu coming out on bail, which is nothing but mere apprehension of the detaining authority, without any basis or specific material and, therefore, there is non-application of mind on the part of the detaining authority, which would vitiate the order of detention.
4.Secondly, the learned counsel for the petitioner submitted that there is inordinate delay in the consideration and disposal of the representation made on behalf of the detenu. He would submit that the representation was received by the Government on 28.12.2008, remarks were called from the detaining authority on 29.12.2008 and though such remarks were received on 30.12.2008 and the file was finally dealt with by the Hon'ble Minister for Law on 02.01.2009 and rejected the representation, such rejection letter came to be prepared only on 13.01.2009, after a gap of nine days and this delay remains unexplained and on this ground also the order of detention is liable to be quashed.
5.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made by the counsel on either side.
6.After considering the submissions made and perusing the materials on record, including the order of detention, the Court agrees with the contentions raised by the counsel for the petitioner. Insofar as the first contention that there is non-application of mind on the part of the detaining authority in forming an opinion that there was real possibility of the detenu coming out on bail is concerned, it is an admitted fact that the bail applications filed by the detenu in one adverse case in Crime No.1049/2008 in Crl.M.P.No.4316/2008 and also in the ground case in Crime No.1026/2008 in Crl.M.P.No.4486/2008 were dismissed by the Sessions Court on 04.12.2008 and 10.12.2008, respectively and thereafter the detenu has not filed any bail application in both the cases and as such, on the date of passing the order of detention, no bail applications were pending consideration. In such circumstances, the subjective satisfaction of the detaining authority that there was real possibility of the detenu coming out of bail is without any basis and not based on any specific material. Therefore, the Court is of the considered opinion that on this ground the order of detention has got to be quashed.
7.Insofar as the delay in consideration and disposal of the representation is concerned, it is seen from the proforma furnished by the learned Additional Public prosecutor that though there was no delay in obtaining the remarks from the detaining authority and dealing with the file by the concerned Minister, there was undue delay in preparing the rejection letter and communicating the same to the detenu. The proforma shows that the Minister had dealt with the file on 02.01.2009. However, the rejection letter has been prepared only on 13.01.2009, after a delay of eleven days. Learned Additional Public Prosecutor would submit that there were four declared holidays in between 02.01.2009 and 13.01.2009. Even then, there was a delay of seven days in preparing the rejection letter, which is only a ministerial act. Since the liberty of a person was concerned, the authorities should have been careful and there should not have been any unexplained delay. On this ground also, the detention order is liable to be quashed.
8.Accordingly, the habeas corpus petition is allowed and the order of detention in No.48/BDFGISSV/2008, dated 12.12.2008, passed by the 1st respondent is quashed. The detenu S.Sankaralingam alias Sankar is directed to be released forthwith, unless his presence, in accordance with law, is required in connection with any other case.
gb To:
1.The Commissioner of Police, Tirunelveli City, Tirunelveli-District.
2.The Secretary.
Government of Tamilnadu, Prohibition and Excise Department, Fort St.George, Chennai-9.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.