SAROJA Vs. STATE

JUDGEMENT

(1.) THE petitioner is the mother of one Vinayagam alias Selva Vinayagam who was detained in pursuance of the impugned order of detention dated 26.4.2001 passed by the second respondent, branding him as "Goonda" under the Tamil Nadu Act 14 of 1982. Since the impugned order of detention is being challenged on two technical grounds, we do not propose to deal with the facts elaborately.

(2.) THE first ground is that the detenu had been charged for the offence under Sec. 302, I.P.C. and the Detaining Authority has merely stated that by filing bail application there is possibility of the detenu coming out on bail. THE Detaining Authority has totally failed to consider that for the offence under Sec. 302, I.P.C. the Courts below are very reluctant in granting bail and it is not a matter of course for the detenu being released on bail. Hence, the opinion or the subjective satisfaction of the Detaining Authority that there is imminent possibility that the detenu may come out on bail is not based upon the application of mind and as such the impugned order of detention is vitiated.

(3.) SO far as the second ground urged by the learned counsel for the petitioner is concerned, it is true that the detenu made a written representation before the Advisory Board, seeking permission to have the assistance of a friend and to examine a witness. However, the proceedings of the Advisory Board refers to the request made by the detenu in respect of one alone which was conceded. In this case, the hearing of the representation of the detenu's friend was permitted at the request of the detenu. When the Advisory Board had recorded such pleadings, we have to hold that before the Advisory Board the detenu might have confined for the only request of hearing the representation of his friend.