G CHINNAKARIKOLRAJ Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This writ petition is filed by the detenu himself under Article 226 of the Constitution of India seeking for the issuance of a Writ of Habeas Corpus quashing the detention order passed on 14.9.1991 and set him at liberty. The detenu came to the adverse notice as goonda in view of the three cases referred to in the preamble of the grounds of detention and was detained on the basis of the ground case. The impugned order of detention was passed by the District Magistrate and Collector, Kamarajar District, Virudhunagar, the second respondent herein, in exercise of the powers conferred by 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) with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The details of the ground case which led to the passing of the impugned order were set out in the grounds of detention which was duly served on the detenu. Hence, we do not propose to reiterate them once again in this order especially in view of the limited plea taken by the learned counsel for the petitioner. Though various grounds are mentioned in the affidavit, Mr. P. Venkatasubramaniam, learned counsel for the petitioner confined his argument to ground (c) wherein it is stated: The failure to consider the delay in execution of detention order vitiates the order of detention. There is no explanation for the delay in executing the order and they have not taken any steps under Section 7 of the Act. The detenu did not abscond. The order of detention was passed on 14.9.1991. He himself surrendered on 17.1.1992. So there is unexplained delay of 4 months and 3 days in executing the impugned order of detention.

(2.) The writ petition was admitted on 24.2.1992. Though the learned Additional Public Prosecutor took time for filing counter from 6.4.1992, till this day no counter-affidavit has been filed on behalf of the respondent. The learned counsel for the petitioner drew our attention to the bail order, a copy of which has been given to the detenu. It shows that the petitioner was released on bail in connection with the ground case even on 7.9.199 1 with a condition that he should appear before the concerned police every day at 10.00 a.m. and 6.00 p.m. The sponsoring authority sent an affidavit even on 11.09.1991 wherein also it has not been stated that the petitioner was not complying with the condition as per the conditions in the bail order. Further, he would submit that the detenu himself surrendered on 17.1.1992 and he never absconded. The delay of 4 months and 3 days in executing the impugned order of detention remains unexplained and that the delay alone is sufficient to vitiate the order of detention. Even though the counter has been filed, no affidavit was filed from the concerned police officer who was entrusted with the work of execution of the impugned order of detention, to explain the delay, till this date. In this connection, the learned counsel drew the attention of this Court to various decisions of the apex Court. In K.P.M. Basheer v. State of Karnataka it was held: 8 Of course, this contention has not been specifically taken in the memorandum of appeal, but there can be no bar to advance a legal argument in a case of this nature and especially when such a contention has been raised before the High Court. We went through the explanation given in para 9 of the Counter affidavit filed on behalf of the first respondent by the then Commissioner and Secretary to Government, Home Department. It is not denied that the detention order was executed after a period of 5 months and 11 days. What the first respondent states is that various efforts were taken to trace the detenu at Tellicherry at the address given in the grounds of detention as well as in Bombay address, but he could not be secured. Further, it has been stated that though the arresting officers attempted to secure him at the Court of Chief Judicial Magistrate at Balgaum on March 6, 1991, March 28, 1991 and May 14, 1991 on which dates the criminal case as against him stood posted before that court, the officers could not do so as the appellant did not appear before the Court for hearing. Further, it is mentioned that though COFEPOSA section in the office of the Collectorate of Customs requested the State Government on April 19, 1991, to initiate action under Section 7 (1) (b) of the Act it was not done so because the seizing unit was asked to make one more attempt to trace out and detain the appellant. This explanation is not a satisfactory and reasonable one for the following reasons: (1) No sufficient cause is shown for not taking any action under Section 7 of the Act. (2) It appears from the paragraph 9 of the counter that the officers came to know of the correct address of the appellant at Bombay, but they could not trace him. It may be pointed out that the Bombay address at which place the appellant detenu was attempted to be secured is not given in the counter. Had it been given, the Court would have been in a position to verify the averments made in the grounds of detention stating that the address at Bombay given by the appellant was fictitious one.

(3.) In paragraph 17 of the writ petition filed before the High Court, the appellant has asserted that he appeared before the Assistant Collector of Customs, Marine Lines, Bombay, on February 6, 1991 and February 20, 1991 but no attempt was made to arrest and detain him. This specific averment is not at all denied in the counter. This indicates that the arresting officers did not make any real and genuine effort to secure and detain the appellant. The explanation now offered stating that the appellant was fugitive, eluding the dragnet of the detention order cannot be accepted, because during the alleged period of search he has appeared before the Assistant Collector of Customs, Bombay on two occasions during February, 1991, that is after passing of he detention order.