@JUDGMENTTAG-ORDER
M. Chockalingam, J.@mdashThe wife of the detenu has filed this habeas corpus petition under Article 226 of the Constitution for quashing the detention order dated 21.02.2010, whereby, in exercise of power u/s 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, the 1st respondent on the allegation that the detenu is a ''Goonda'' within the meaning of the said Act, has detained the husband of the petitioner.
2. The affidavit and the materials filed in support of the petition, in particular the order under challenge, are looked into. The Court heard the learned Counsel for the petitioner.
3. It is not in controversy that pursuant to the recommendations made by the Sponsoring Authority that the said Navaneethakrihnan was involved in one adverse case in Kadayam Police Station Crime No. 134/2009 Under Sections 294(b), 452, 353, 324, 506(ii) IPC and also in the ground case in Crime No. 35/2010, registered under Sections 294(b) and 307 IPC on the file of Ambasamudram Police Station for a crime that had taken place on 10.02.2010, in which he was arrested on the very next day and remanded to judicial custody, on scrutiny of the materials placed before him, the detaining authority, the 1st respondent herein, after recording his subjective satisfaction that the alleged detenu was so acting in a manner prejudicial to the maintenance of public order, branded him as a "Goonda" and ordered him to be detained under Tamil Nadu Act 14 of 1982, which is the subject matter of challenge before the Court.
4. Advancing arguments on behalf of the petitioner, the learned Counsel Mr. V. Kathirvelu would submit that in the instant case, the order of detention impugned in this writ petition, has got to be set aside on two reasons. According to him, firstly, the detenu was involved in one adverse case and one ground case and the detaining authority, before recording his subjective satisfaction as to the necessity of detaining the detenu under preventive detention, should apply his mind to record so and in the instant case the admitted position is that the detenu has not moved any bail application before any court of criminal law but, the detaining authority, while recording his subjective satisfaction, has not even stated that there was any likelihood or real possibility or imminent possibility of the detenu coming out on bail and this would be indicative of the fact that the authority could not have arrived at the subjective satisfaction proper. Secondly, there was delay in the consideration and disposal of the representation made by the detenu. According to the counsel for the petitioner, the representation, dated 02.03.2010, was received by the Government on 05.03.2010 and though remarks were called for from the detaining authority on 08.03.2010, such remarks were received by the Government only on 17.03.2010, after a delay of nine days and the said delay remains explained and this unexplained delay of nine days has caused prejudice to the interest of the detenu. Therefore, according to the learned Counsel, on the above two grounds the order of detention has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor for the State on the submissions made by the counsel for the petitioner.
6. After looking into the materials available on record and considering the submissions made on either side, the Court is of the considered opinion that the order under challenge is infirm and hence it has got to be set aside on the grounds urged by the learned Counsel for the petitioner.
7. Admittedly, the detenu was ordered to be detained by invoking the provisions of Tamil Nadu Act 14/1982 on the ground that he was involved in one adverse case and in one ground case as referred to above. The detaining authority has also stated that the there was no bail application filed by the detenu and this fact is evident from paragraph 6 of the grounds of detention. However, the detaining authority has observed in the above paragraph as follows:
6. I am aware that Thiru. Navaneethakrishnan is in remand in Ambasamudram Police Station crime number 35/2010 and he has not moved any bail application so far in this case. To restrict him from indulging activities in future, which will be prejudicial to the maintenance of the public order, it is necessary that he has to be kept in Judicial custody....
8. A reading of the above observation would make it clear that the detaining authority even without forming any opinion as to the likelihood or real possibility or imminent possibility of the detenu coming out on bail has recorded his satisfaiction as to the necessity of detaining the detenu under the Tamil Nadu Act 14 of 1982. So long as the detenu did not come out on bail, there is no possibility of the detenu indulging in such kind of activities which would be prejudicial to the maintenance of public order and therefore this would go to show non-application of mind on the part of the detaining authority. In such circumstances, it cannot be stated that subjective satisfaction has been recorded by the detaining authority after applying his mind.
9. Equally, the second ground of delay has also got to be applied in this case. As could be seen from the material supplied by the learned Additional Public Prosecutor appearing for the State, the representation dated 02.03.2010 had been received by the Government on 05.03.2010 and though remarks were called for from the detaining authority on 08.03.2010, such remarks were received by the Government only on 17.03.2010, after a delay of nine days. Learned Additional Public Prosecutor brought to the notice of the Court that in between 08.03.2010 and 17.03.2010, there were three holidays. Even assuming to be so, there were six clear working days which remain unexplained. Such unexplained delay, in the considered opinion of the Court, has caused prejudice to the interest of the detenu and, therefore, the order of detention impugned in this petition is liable to be quashed on both the grounds.
10. Accordingly, the habeas corpus petition is allowed and the impugned order of detention in M.H.S. Confdl No. 14/2010, dated 21.02.2010, passed by the 1st respondent is quashed. The detenu Navaneethakrishnan, S/o. Ponnaiahthevar, is directed to be set at liberty forthwith, unless his presence, in accordance with law, is required in connection with any other case.
