Of Tamil Nadu & Anr Vs. Alagar  Insc
378 (6 July 2006)
Pasayat & Lokeshwar Singh Panta Arijit Pasayat, J.
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').
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.
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
is no appearance on behalf of the respondent- detenu in spite of notice.
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 :
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." 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.
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.
order of the High Court is accordingly set aside.
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 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.