9911796707
TMI Blog2011 (12) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... 506(H) IPC (ii) Crime No. 109 of 2010, on the file of K.K. Nagar Police Station for the offences under Sections 147,323 and 506(i) IPC (iii) Crime No. 727 of 2010, on the file of Airport police station, for the offences under Sections 147, 341, 294(b), 427, 323, 324 IPC and Section 3 of TNPPDL Act, 1992. The detaining authority also relied on the ground case concerned in Crime No. 361 of 2011 on the file of the K.K. Nagar Police Station for the offences under Sections 147, 148, 447, 448, 427, 294(b), 323, 506(H) IPC and Section 3 of PPD Act. On the basis of the aforementioned cases, the detaining authority concluded that the detenu was habitually committing crimes and he is a Goonda and also observed that he was acting in the manner prejudicial to the maintenance of public order. 2. Mr. N.R. Ilango, learned Senior Counsel assailed the validity of the detention order on various grounds and submitted that the observation made by the detaining authority is contrary to the records, and there was non-application of mind on the part of the detaining authority. The detenu was prevented from making effective representation and further the representation made by the detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al offence under Section 3 of TNPPDL Act. The final report being filed, the learned Magistrate granting bail to the detenu subsequently, the detaining authority ought to have applied his mind with regard to this variation and called for an explanation. The failure on the part of the detaining authority shows his non-application of mind. 4. The learned Senior Counsel appearing for the petitioner relying on the decision of the Honourable Supreme Court in Kamalesh Kumar Ishwardas Patel v. Union of India and Others (1995) SCC (Cr) 643 submitted that detenu sent a representation to the detaining authority on 24.7.2011 and it was received by him on 28.7.2011 within 12 days of the detention order. But the detaining authority has failed to consider the representation which violated the fundamental right guaranteed to the detenu under Article 22(5) of the Constitution of India. 5. I. Subramaniam, learned Public Prosecutor vehemently replied to the contentions raised by the learned senior counsel appearing for the petitioner stating that the detention order passed by the detaining authority is valid and it cannot be assailed on any ground. The learned Public Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sponsoring authority. But in the mean time, the detention order was approved by the government on 29.8.2011 itself. The representation sent to the government was considered and it was disposed of. 9. We considered the rival submission made by both parties and perused the materials available on record. 10. With regard to the first contention, it is to be seen whether the three adverse cases shown against the accused are stale and the observation of the detaining authority that the detenu was habitual offender is without materials. The first adverse case relates to the occurrence dated 27.8.2008, the second adverse case relates to the occurrence dated 8.2.2010 and the third adverse case relates to occurrence dated 18.7.2011. The ground case relates to an incident occurred on 18.7.2011. The detenu was indulged in one case in the year 2008 and had two cases in the year 2010 and the ground case in the year 2011. In the year 2010, the detenu had indulged in two cases within a short span of six months and again he had indulged in the ground case in the year 2011. Therefore the incident Nos. 2 and 3 cannot be said to be stale and the occurrence in ground ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On a perusal of the records, we find that some of the witnesses had referred to the acts of the detenu. It is improper for the Court to observe that one witness had given such statement to the police and another witness had not given such statement to the police. It is not a matter of appreciation by the Court and it is purely for the subjective satisfaction of the detaining authority. Therefore, on reading paragraph-3 of the grounds of detention, the observation made by the detaining authority in paragraph-4 of the grounds of detention that the detenu was acting in a manner prejudicial to the maintenance of public order cannot be assailed. The second contention of the learned senior counsel for the petitioner is also rejected. 14. Thirdly, it is to be analyzed that how far the observation made by the detaining authority relating to Crime No. 727 of 2010 on the file of Airport Police station (third adverse case) that the detenu got anticipatory, bail order wherein, the detenu got bail from the concerned Magistrate affects the detention order. First of all, it is very clear that the detenu was in remand only in connection with Crime No. 361 of 2011 on the file of K.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been disposed of by the detaining authority. Of course the Honourable Supreme Court has held in the decision in Kamalesh Kumar Ishwardas Patel v. Union of India and Others (supra), as follows: 14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding; obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation. 31. Construing the provisions of Article 22(5) we have explained that the right of the person detained to make a representatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
