SUBHASH BABU Vs. STATE

JUDGEMENT

(1.) THIS writ petition is filed by one Subash Babu the friend of the detenu Vadivelu, under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus quashing the order of detention passed against the said Vadivelu dated 19.10.1990 and setting him at liberty. The detenu come to the adverse notice as a habitual forest offender in view of the six cases referred to in the preamble to the grounds of detention and he was detained on the basis of the ground case. The Collector and District Magistrate, Periyar District at Erode the second Respondent herein in exercise of the powers conferred by Sub -section (1) of Section 3 of the Tamil Nadu prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act 1982 (Tamil Nadu Act 14 of 1982), hereinafter referred to the Act, read with O.C.Ko.Do. 949, Home, Prohibition and Excise Department dated 15.10.90 under Sub -section (2) of Section 3 of the pain Act, passed the impugned order on 19.10.1990 against the detenu on reaching the requisite subjective satisfaction on a consideration of the materials placed before him that it has become necessary to pass the detention order with a view to preventing him from setting in any manner prejudicial to the maintenance of public order. The salient and material facts which necessitated the detaining authority to pass the impugned order as set out in the grounds of detention are briefly as follows: On 30.9.1990. M. Nagarajan, Forest Manager, Andhiyur Range, along with his subordinates proceeded to Chellampalayam beat for inspection as a special party. During the course of the surveillance at about 12.10.P.M. they noticed two persons with head loads coming from the Res(Sic) forest at a distance of 5 chains. They surrounded and stopped both of them who were found carrying on sandalwood billets illicitly cut from the Reserve forest. Of the two, the detenu was one. The total weight of the sandal wood billets brought by the detenu was 42.5 Kg. worth Rs. 8,400/ - while the sandalwood billets brought by the other person, namely Palaniappan was 23.5. Kg. worth Rs. 4.600/ -. They were seized, measured, numbered, weighed and entered in 'H' Form No. 07547 dated 30.9.90. Later, they were produced before the Judicial Magistrate, Bavani. On the basis of the said act. The impugned order was passed on 19.10.90.

(2.) THE impugned order was challenged on three grounds. (1) The second Respondent has no authority to pass an order of detention as delegation of power under Section 3(2) of the Act is only to a limited period of three months. The State Government can delegate the power only in extraordinary circumstances prevailing in an area under Section 3(2) of the Act and that the mere extension of delegation to all the District Magistrates without specific circumstances is unconstitutional. Since the delegation to the second Respondent was mechanical and no specific circumstances was designed for the delegation, the order is bad. (2) There was no compelling necessity to pass the order of detention and detain the detenu. The sponsoring authority did not place the records relating to move of bail by the detenu which was dismissed. Since the bail (Sic) application was dismissed, there was no possibility of the detenu coming out on bail while he was on remand. Since there was no compelling necessity to detain him, there was non -application of mind by the detaining authority and this vitiates the impugned order; and (3) The second Respondent has alleged from page 10 in Paragraph 3(i), (ii), (iii) and (vi) that the Government spends more money to curb the nefarious activities of the forest offenders, that the unlawful activities of the detenu are highly dangerous to ecological system, that he made the poor and innocent tribals anti -social and he misled them in illicit cutting of the trees and that because of his activities the bat population which survives by the edible succulent fruits of sandal is drastically reduced and increases the pest population. The second Respondent has taken 2 1/2 pages to explain the same in the grounds of detention. But the documents given to him along with the grounds of detention does not substantiate the same. The detenu was also given the affidavit of the Forest Manager, Anthiyur Range, which runs to two pages and it also does not mention about this, allegation. So in the circumstances, it is not known how the second Respondent arrived at the subjective satisfaction without any document and hence the order is bad. The extraneous consideration about the failure of ecological system and the drastic reduction of bat population violates Article 22(5) of the Constitution, as no documents were furnished to the detenu to make effective representation.

(3.) AS regards the third contention, the Petitioner raised it in ground Nos. (d) and (e). It is submitted by the Petitioner that in paras 3(i) (ii) (iii) and (vi) of the grounds of detention the second Respondent alleged that the detenu spends money for nefarious activities that his unlawful activities are highly dangerous to the ecological system, that he made poor and innocent tribals to anti -social elements, that because of his activities, the bat population which survives by the suitable succulent fruits of second is drastically reduced and increases the pest population, that the second Respondent has taken 2 1/2 pages to explain this is the grounds of detention and that the documents given to him along with the grounds of detention do not substantiate the same. It is further stated that the detenu has also been served with the affidavit of the Forest Manager, Anthiyur, and it also does not mentioned those allegations. It is stated that in such circumstances, it is not known how the second Respondent arrived at the subjective satisfaction without any document. The extraneous consideration about the failure of the ecological system and the drastic reduction of bat population violates Article 22(5) of the Constitution as no document has been given to the detenu to make effective representation. In paras 7 and 8 of the counter it is specifically stated that the impact of ruthless cutting and removal of sandalwood trees and the effect of the ecological systems and how it affects the public order was elaborately discussed in the grounds of detention. But, no documentary evidence could be given on this. Engaging of tribals for cutting and removal Sandalwood trees by the detenu was admitted by the detenu himself in his statement dated 30.9.90 and hence the nefarious activities were proved. Further, the failure of ecological system and the drastic reduction of bat population and increase of pest population could not be supported by documentary evidence and that it is only knowledge and experience.