(Order of the Court was made by P.MURGESEN, J.) The petitioner is the father of the detenu, who was detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug- offenders, Forest-offenders, Goondas, Immoral Traffic offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), by order of the first respondent in Order No. C.P.O/T.C/I.S/D.O.No.05/2009 dated 04.02.2009 by branding him as a 'GOONDA'.
2. There are two adverse cases and one ground case as against the detenu. The details of the adverse cases are as under:-
The ground case was registered under
Section 397 IPC in Crime No.742 of 2008 on the file of Woraiyur Police Station, Tiruchirapalli. In the ground case, the detenu was arrested on 27.12.2008 and sent to judicial custody on the same day and he was remanded till 09.01.2009. Thereafter, his remand period was extended upto 06.02.2009. The detention order was passed on 04.02.2009.
3. Learned counsel for the petitioner challenges the impugned order of detention on three grounds; firstly, the remand report was not furnished to the detenu; secondly, the Detaining Authority had not satisfied itself as to the real possibility of the detenu coming out on bail; thirdly, there was a delay in considering the representation of the detenu.
4. The first ground of the learned counsel for the petitioner is that the remand report was not furnished to the detenu in the first adverse case. In the first adverse case, in Crime No.618 of 2008, the detenu was remanded on 27.12.2008 and later the remand period was extended till 06.02.2009, for which the remand orders were not furnished to the detenu. It is submitted by the learned Additional Public Prosecutor that the remand reports were furnished in the booklet. On a perusal of the booklet, we find no remand report for Crime No.618 of 2008 is available. Learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court reported in 1999 Supreme Court Cases (Cri) 231 (Powanammal v. State of T.N. and Another). In that case, it was pointed out by the Hon'ble Supreme Court that the relied-on documents must be furnished to the detenu and non-supply of the same would be fatal. Since the remand report pertaining to Crime No.618 of 2008, which was relied upon by the Detaining Authority was not furnished to the detenu, the order of detention is liable to be set aside on this ground.
5. In the grounds of detention, it is stated that the detenu filed bail applications in Crl.M.P. Nos.106/09 and 105/09 for Woraiyur Police Station Crime Nos.742 of 2008 and 618 of 2008 respectively before the District and Sessions Court, Tiruchirapalli and the same were dismissed on 22.01.2009 and therefore, there was a real possibility of the detenu coming out on bail. For this, the learned counsel for the petitioner relied on a decision of the Hon'ble Supreme Court in the case of T.V.Sravanan v. State, reported in (2006) 1 Supreme Court Cases (Cri) 593. In that case the bail applications moved by the appellant had been rejected by the courts and there was no material whatsoever to apprehend that the detenu was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. Therefore, in that case, it was held that the "imminent" possibility of the appellant coming out on bail was merely the ipsi dixit of the detaining authority unsupported by any material whatsoever; there was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail; the inference has to be drawn from the available material on record; in the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention; there was, therefore, no sufficient compliance with the requirements as laid down by the Supreme Court. Relying on the above judgment of the Hon'ble Supreme Court, the learned counsel for the petitioner has submitted that the order of detention is vitiated on the ground that the detaining authority had passed the order without its subjective satisfaction as regards the imminent possibility of the detenu coming out on bail.
6. Applying the principles enunciated in the Sravanan's case (cited supra) to the facts of the present case, we are of the considered view that the impugned order of detention is vitiated also on the ground that the Detaining Authority had not satisfied itself as regards the imminent possibility of the detenu coming out on bail.
7. The third ground relied on by the counsel for the petitioner is that there was delay in considering the representation of the detenu. In the proforma submitted by the learned Additional Public Prosecutor, with regard to the first representation of the detenu, it is stated that the file was submitted on 26.02.2009; Under Secretary dealt with on 26.02.2009; Joint Secretary dealt with on 26.02.2009; Minister for PWD and Law dealt with the representation on 27.02.2009; rejection letter prepared on 04.03.2009; rejection letter sent to the detenu on 05.03.2009 and rejection letter served to the detenu on 06.03.2009. 21.02.2009, 22.02.2009 and 01.03.2009 were public holidays. Even though the Minister for PWD and Law dealt with the representation on 27.02.2009, the rejection letter was sent to the detenu only on 05.03.2009. A perusal of the columns 13 to 16 of the proforma would show that there was delay in considering the representation of the detenu. The delay was also not explained properly with reason. Therefore, we are of the view that on this ground also, the detention order is liable to be set aside.
8. For all the above reasons, we are of the considered view this H.C.P is liable to be allowed and accordingly it is allowed and the order of detention in Order No.C.P.O/T.C/I.S/D.O.No.05/2009 dated 04.02.2009 passed by the first respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.
KM To
1.The Commissioner of Police, Tirunelveli City.
2.The Secretary to the Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009.
3.The Inspector of Police, Wooraiyur Police Station, Trichy District.