(Order of the Court was made by M.CHOCKALINGAM, J) This Writ Application challenges the order of the second respondent in No.53/BDFGISSV/2008 dated 16.6.2008 whereby the son of the petitioner was ordered to be detained under the provisions of the provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) terming him as a "Goonda".
2. The Court heard Mr.R.Alagumani, learned counsel appearing for the petitioner and looked into the materials available including the order under challenge.
3. It is not in controversy that the petitioner's son by name Rafeek @ Vahzikai Rafeek was involved in two adverse cases viz., in Crime No.892/2007 under
Sections 387 and
506(ii) IPC registered in B1 Vilakkuthoon Police Station and Crime No.528/2008 under Sections 307 and 506 (ii) IPC registered in B1 Vilakkuthoon Police Station and in one ground case in Crime No.544/2008 under
Sections 397 and
506(ii) IPC was registered in B1.Vilakkuthoon Police Station. The sponsoring authority placed all the materials pertaining to all the three cases. On scrutiny of the materials, the detaining authority, recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and he should be detained under the Tamilnadu Act 14/1982 terming him as a "Goonda" and accordingly, made the order, which is the subject matter of challenge before this Court.
4. Advancing his arguments on behalf of the petitioner, learned counsel appearing for the petitioner would submit as follows:-
(i) The order of detention came to be passed on 16.6.2008 and that two bail applications were filed in respect of the second adverse case in Crime No.528/2008 and both of them were dismissed on 20.5.2008 and 11.6.2008 respectively. Insofar as the ground case is concerned, no bail application was filed at all but the detaining authority has not stated that no bail application was filed in respect of the ground case. On the contrary, it is recorded that there was imminent possibility of the detenu coming out on bail. Once no bail application was filed by the detenu in respect of the ground case, there is no question of any possibility of the detenu coming out on bail and thus, the detaining authority has actually prejudged the circumstances. Hence, the order suffers from that point of view.
(ii) According to him, the second adverse case was registered on 15.5.2008 and the ground case was registered on 27.5.2008. Insofar as the ground case is concerned, it was registered for the occurrence that took place on 15.5.2008. According to the sponsoring authority, the detenu was produced one our before the Court of Criminal jurisdiction on 15.5.2008 itself. Thus, it would be quite clear that the ground case itself was a false introduction by the sponsoring authority with a view to place materials before the detaining authority to invoke the provisions of the Act 14/1982.
(iii) The learned counsel would add further that insofar as the remand extension is concerned, he was involved in two adverse cases and in one ground case in Crime No.544/2008. Insofar as the remand extension requisition is concerned, there was a reference as to Crime No.544/2008 but it is found in the course of the detention order as Crime No.528 of 2008. If to be so, when such discrepancy was noticed, the detaining authority should have called for clarification in that regard but not done so. It is highly doubtful whether such an extension of remand was made in the ground case at all.
(iv) Added further the learned counsel that there was delay in consideration of the representation made by the detenu. Thus, on all those grounds, the order has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
6. It is not in controversy that the detenu was involved in two adverse cases and one ground case as referred to above. It is also pointed that he filed two bail applications in the adverse cases and both the bail applications were dismissed on 20.5.2008 and 11.6.2008 respectively. In the ground case, he had not even filed any bail application at all but the sponsoring authority has stated in his order that there was an imminent possibility of the detenu coming out on bail even though when there was no bail application pending and it is too early for the detaining authority to come to the conclusion that there was a likelihood of the detenu coming out on bail. Hence, the order of detention suffers from that point of view.
7. Insofar as the contention that the second adverse case was registered on 15.5.2008 but the ground case was registered on 27.5.2008, it has got to be taken as false and the contention cannot be countenanced. Hence, it has got to be rejected. As could be seen from the materials, he was surrendered on 15.5.2008 in the ground case. Insofar as the extension is concerned, it was in Crime No.528 of 2008 but not in the ground case in Crime No.544/2008. It is true that there was a reference in the requisition made by the police for remand extension in crime No.544/2008 but the order was passed in the case in Crime No.528 of 2008 and not in Crime No.544/20078. Thus, it would be quite clear that when such a discrepancy was found, the detaining authority should have called for clarification but failed to do so.
8. Insofar as the delay in consideration of the representation made by the detenu is concerned, the Court is unable to agree that there was a delay of two days. In the considered opinion of the Court, it cannot be considered as a delay.
9. In view of the grounds 1 and 3 as stated above, the order has got to be set aside. Accordingly, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case in accordance with law. The Habeas Corpus Petition is allowed.
asvm To
1.The Secretary, Home, Prohibition and Excise (XVI) Department, Fort St.George, Chennai - 600 009.
2.The Commissioner of Police, Madurai City.
3.The Superintendent of Prison, Madurai Central Prison, Madurai.
4.The Secretary, Advisory Board, Coovam House, Omandurar Government Estate, Swami Sivanandha Salai, Chennai - 600 002.