K P MURUGESAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The brother-in-law of the petitioner herein has been detained 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 (Tamil Nadu Act 14 of 1982). The order of detention was passed on 17-8-1990 and pursuant to that the petitionerTs brother-in-law Varadhan was taken into custody on 18-8-1990.

(2.) We do not intend in this case to go into the grounds of detention or to examine whether there was any valid reason to detain the detenu under section 3(1) of the Act or not. It has transpired in course of hearing of this petition that the Government order under section 12(1) of the Act has been issued only on 19-11-1990 in G.O. (d) No. 255 Home, (Prohibition and Excise (XIII) Department, Section 10 of the Act states: In every case where a detention order has been made under this Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under section 9 the grounds on which the order has been made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under Sub-section (3) of section 3. Section 11 provides for the procedure to be adopted by the Advisory Board and the submission of the opinion of the Board or its majority in the shape of a report to the State Government. Section 12 of the Act however states: * In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in section 13 as they think fit. * * In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, ,he State Government shall revoke the detention order and cause the person to be released forthwith. Article 22 of the Constitution of India, which besides Article 21 provides for the rights that any person may have been subjected to any detention or custody states that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest nor shall be denied the right to consult and to be defended by a legal practitioner of his choice and that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Exception to that however has been enumerated in clauses 3 and 4 thereof in which it is said that the rights aforementioned shall not be available to any person Who is for the time being is an enemy alien or to any person who is arrested or detained under any law providing for preventive detention.

(3.) Coming to the preventive detention article 22 (4) provides. Now law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless: (a) An Advisory Board consisting of persons who are or have been or are qualified to be appointed as, judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. Provided that nothing in this Sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament/under Sub clause (B) of clause (7) or. b. Such person is detained in accordance with the provisions of any law made by Parliament under Sub clauses (a) and (b) of clause (7).