Article 226 Constitution of India
2006 ALL SCR (Cri) 336
SUPREME COURT OF INDIA
Madras High Court
Appeal (Crl.) 1067 of 1999
6th July, 2006
ARIJIT PASAYAT, J.
LOKESHWAR SINGH PANTA, J.
State of Tamil Nadu & Anr.
Tamil Nadu Prevention of Dangerous Activities of bootleggers, Drug offenders, Forest Offenders, Goondas, Immoral Traffic offenders and Slum Grabbers Act (1982)
Constitution of India
Section 3(1) Tamil Nadu Prevention of Dangerous Activities of bootleggers, Drug offenders, Forest Offenders, Goondas, Immoral Traffic offenders and Slum Grabbers Act (1982)
Article 226 Constitution of India
Accused, Affidavit, Magistrate, Reference, State
Para 9: Sunil Fulchand Shah Vs. Union of India and Ors. (2000 (3) SCC 409)
Para 9: State of T.N. and Another Vs. Kethiyan Perumal (2004 (8) SCC 780)
ARIJIT PASAYAT, J.:- Challenge in this Appeal is to the judgment rendered by a Division Bench of the Madras High Court quashing the order of detention passed by the District Magistrate and Collector, Virudhunagar, Tamil Nadu under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of bootleggers, Drug offenders, Forest Offenders, Goondas, Immoral Traffic offenders and Slum Grabbers Act, 1982 (in short the ’Act’).
2. The order of detention was passed as the respondent was identified as a "Goonda" as defined in the Act. It was indicated in the order of detention that it had come to the notice of the detaining authority that a large number of cases were registered against him and on 27.4.1998 he acted in a manner prejudicial to the maintenance of public order. The order of detention was challenged before the High Court by filing a petition under Article 226 of the Constitution of India, 1950 (in short the ’Constitution’). The only plea taken was that the sponsoring authority had sworn to an affidavit dated 15.6.1998 and had forwarded the same to the detaining authority with the material for consideration of the detaining authority. In the said affidavit there could not have been any mention of the order of remand dated 24.6.1998. But in the order of detention reference was made to the said fact. The Detaining Authority produced the records to show that in fact the Sponsoring Authority had appeared before the Detaining Authority on 26.6.1998 and the file clearly indicated that the order of remand was brought to the notice of the Detaining Authority before he passed the order of detention on 26.6.1998. The High Court perused the original file but was of the view that the Detaining Authority should have sent the document in question i.e. order relating to the remand along with a forwarding letter and in any event an additional affidavit was required to be filed. Therefore, it was held that the order of detention was not sustainable.
3. Mr. V.G. Pragasam, learned counsel for the appellants submitted that the order of remand had been brought to the notice of the detaining authority by the Sponsoring Authority before the order of detention was passed. On a hypo-technical ground that, though the same was brought to the notice of the Detaining Authority, there should have been a forwarding letter to the Detaining Authority or at least an additional affidavit should have been filed the order of detention should not have been quashed. The order, therefore, is clearly unsustainable.
4. There is no appearance on behalf of the respondentdetenu in spite of notice.
5. We find that there is no dispute regarding the production of the order of remand dated 24.6.1998 when the sponsoring authority appeared before the detaining authority who passed the order of detention on 26/6/1998. As a matter of fact in the grounds of detention it have been clearly noted as follows :
"The accused was remanded to judicial custody in Central Prison, Madurai for a period of 15 days upto 12.5.1998 and the remand has been extended upto 30.06.1998 and the accused is in Central Prison, Madurai."
6. This clearly establishes, that as has been noted in the file which was produced before the High Court, the order of remand was placed by the Sponsoring Authority before the Detaining Authority. The High Court’s view that there should have been a forwarding letter or an additional affidavit is clearly without any basis.
7. There is no dispute that the sponsoring authority had placed the material before the Detaining Authority. That being so the High Court should not have quashed the order of detention.
8. The order of the High Court is accordingly set aside.
9. The residual question is whether it would be appropriate to direct the respondent to surrender for serving remaining period of detention in view of passage of time. As was noticed in Sunil Fulchand Shah v. Union of India and Ors. (2000 (3) SCC 409), and State of T.N. and Another v. Kethiyan Perumal (2004 (8) SCC 780), it is for the appropriate State to consider whether the impact of the acts, which led to the order of detention still survives and whether it would be desirable to send back the detenu for serving remainder period of detention. Necessary order in this regard shall be passed within two months by the appellant \026 State. Passage of time in all cases cannot be a ground not to send the detenu to serve remainder of the period of detention. It all depends on the facts of the act and the continuance or otherwise of the effect of the objectionable acts. The State shall consider whether there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the present order.
10. Appeal is allowed.