(Order of the Court was made by M.CHOCKALINGAM,J) Challenge is made to an order of the second respondent made in reference No.48/BDFGISSV/2008, dated 15.05.2008 whereby, Tr.Chandru @ Chandrasekaran, was ordered to be detained under 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) (hereinafter referred as the Act) terming him as a 'Goonda' as defined under the provisions of the Act.
2. The Court heard the learned counsel for the petitioner and looked into all the materials available in particular the order under challenge and also the grounds of attack.
3. The Court heard the learned Additional Public Prosecutor on the submissions made.
4. It is not in controversy that pursuant to the recommendations made by the sponsoring authority, that the petitioner is involved in a case registered in Cr.No.637/2007 on the file of B.6, Jaihindpuram Police Station for the offence under
Section 332 IPC and 3(I) of TNPPDL Act; in Cr.No.41/2008 on the file of B.6, Jaihindpuram Police Station for the offence under
Sections 341,307,109 and
506(ii) IPC which were shown as two adverse cases and apart from the same, he is also involved in a case registered in Cr.No.447/2008 on the file of B.6 Jaihindpuram Police Station for the offence under
Sections 341, 392, r/w 397 and
506(ii) IPC shown as a ground case, the detaining authority after looking into the materials available recorded his subjective satisfaction that the activities of the petitioner were prejudicial to the maintenance of the Public Order and hence he was to be detained under the Act by terming his as 'Goonda' and accordingly made the order, which is the subject matter of challenge before this Court.
5. Advancing his arguments, the learned counsel for the petitioner, made the following submissions;
Firstly, pursuant to the registration of the case in Cr.No.447/2008 for the offence under Sections 341, 392 r/w 397 and 506(ii) IPC on 26.04.2008, which was shown as ground case, the petitioner was arrested on 27.04.2008. The order under challenge came to be passed on 15.05.2008. But, in the interregnum period no bail application was filed by the petitioner before any Court of criminal law. Though the detaining authority has pointed out in its order that he was aware that no bail application was filed in the cases and the petitioner was making efforts to file bail applications and hence there was a possibility of his coming out on bail by filing applications, this observation, which was not based on any materials whatsoever, was only an impression that was passing in the minds of the authority concerned. Under such circumstance, even without any material, he has taken a view that bail application could be filed and orders in his favour could be passed is only prejudging the matter. Added further, the learned counsel for the petitioner would submit that immediately after the arrest, the said factum of arrest should be informed to one of the close relatives of the detenu. But, in the instant case, it is stated that the arrest of the detenu was brought to notice of his friend at Jaihindpuram, Madurai. However, no such friend of the detenu was residing in the said address. Moreover, the petitioner belongs to Alandur in Tirunelveli District. Thus, the arrest of the petitioner was not informed to a relative much less a close relative. Under such circumstance, the mandate of law of preventive detention was also violated and on those grounds the detention order has got to be set aside.
6. The Court heard the learned Additional Public Prosecutor and paid its anxious consideration on the submissions made.
7. As stated above, it is not in controversy that the petitioner is involved in three cases i.e. two adverse cases and one ground case in Cr.No.447/2008 as stated above. It is also an admitted position, that the petitioner was arrested in the ground case on 27.04.2008 and he was remanded to judicial custody. The order under challenge came to be passed on 15.05.2008. During the interregnum period, no bail application was filed at all. Even this fact that no bail application was filed or pending is made mention by the detained authority concerned, but he has added further that the detenu was taking steps to file bail application in future and there was a likelihood of passing any order in his favour. It is quite clear that the impression what was formed by the authority concerned was one of the main reason for passing the order of detention and now it has been pointed out that this apprehension of the authority that the bail application might be filed and orders might be passed in his favour granting bail are all actually apprehension without any reason. Under such circumstance, it could be well settled that it was actually prejudging the filing of bail application and that an order could be passed in future. Added circumstance was that whenever a person is arrested the factum of arrest should be brought to notice of one of the close relatives. But, in the instant case, it is not done so. Even a perusal of the arrest card would clearly indicate that it was informed to one Chellapandi S/o Narayanan, residing at No.80, Jaihindapuram, I Street, Madurai. It is also shown as his friend. Now, it is quite clear that the residence of the alleged friend of the detenu was shown as Jaihindpuram, Madurai. As it could be seen from the materials available the detenu belongs to Alandur, which is in Tirunelveli District and thus two facts are clear. Firstly, to one of the relative the factum of arrest was not at all informed. Secondly, there is nothing to show that whether the petitioner has got a friend as shown in the arrest card and thus without strictly following the mandate of law of preventive detention and in order to satisfy the law that they have mentioned as if it was informed to the friend. Under such circumstance it would not satisfy the mandate of the law. Thus, the above grounds, in the considered opinion of this Court, would be suffice to set aside the order under challenge. Hence, this Court has made undone by upsetting the order under challenge.
8. Accordingly, the Habeas Corpus Petition is allowed and the detention order in Ref.No.48/BDFGISSV/2008 dated 15.05.2008 passed by the second respondent is quashed. The detenu is directed to be set at liberty forthwith unless his presence, in accordance with law, is required in connection with any other case.
jikr/sj To:
1.The Secretary to Government of Tamil Nadu Prohibition and Excise Department, (Home) Fort St. George, Chennai-600 009.
2.The Commissioner of Police, Madurai City, Madurai.