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CASE NO.: Appeal (crl.)  1067 of 1999

PETITIONER: State of Tamil Nadu & Anr.

RESPONDENT: Alagar

DATE OF JUDGMENT: 06/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

                Challenge in this Appeal is to the judgment rendered by a  Division Bench of the Madras High Court quashing the order  of detention passed by the District Magistrate and Collector,  Virudhunagar, Tamil Nadu 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 (in short the ’Act’).

The order of detention was passed as the respondent was  identified as a "Goonda" as defined in the Act.  It was indicated  in the order of detention that it had come to the notice of the  detaining authority that a large number of cases were  registered against him and on 27.4.1998 he acted in a manner  prejudicial to the maintenance of public order.  The order of  detention was challenged before the High Court by filing a  petition under Article 226 of the Constitution of India, 1950 (in  short the ’Constitution’).  The only plea taken was that the  sponsoring authority had sworn to an affidavit dated  15.6.1998 and had forwarded the same to the detaining  authority with the material for consideration of the detaining  authority. In the said affidavit there could not have been any  mention of the order of remand dated 24.6.1998.  But in the  order of detention reference was made to the said fact.  The  Detaining Authority produced the records to show that in fact  the Sponsoring Authority had appeared before the Detaining  Authority on 26.6.1998 and the file clearly indicated that the  order of remand was brought to the notice of the Detaining  Authority before he passed the order of detention on  26.6.1998.  The High Court perused the original file but was of  the view that the Detaining Authority should have sent the  document in question i.e. order relating to the remand along  with a forwarding letter and in any event an additional  affidavit was required to be filed.  Therefore, it was held that  the order of detention was not sustainable.

Mr. V.G. Pragasam, learned counsel for the appellants  submitted that the order of remand had been brought to the  notice of the detaining authority by the Sponsoring Authority  before the order of detention was passed. On a hypo-technical  ground that, though the same was brought to the notice of the  Detaining Authority, there should have been a forwarding  letter to the Detaining Authority or at least an additional  affidavit should have been filed the order of detention should

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not have been quashed.  The order, therefore, is clearly  unsustainable.  

       There is no appearance on behalf of the respondent- detenu in spite of notice.

We find that there is no dispute regarding the production  of the order of remand dated 24.6.1998 when the sponsoring  authority appeared before the detaining authority who passed  the order of detention on 26/6/1998.  As a matter of fact in  the grounds of detention it have been clearly noted as follows :

"The accused was remanded to judicial  custody in Central Prison, Madurai for a period  of 15 days upto 12.5.1998 and the remand has  been extended upto 30.06.1998 and the  accused is in Central Prison, Madurai."   

This clearly establishes, that as has been noted in the file  which was produced before the High Court, the order of  remand was placed by the Sponsoring Authority before the  Detaining Authority.  The High Court’s view that there should  have been a forwarding letter or an additional affidavit is  clearly without any basis.

There is no dispute that the sponsoring authority had  placed the material before the Detaining Authority.  That being  so the High Court should not have quashed the order of  detention.  

The order of the High Court is accordingly set aside.

The residual question is whether it would be appropriate  to direct the respondent to surrender for serving remaining  period of detention in view of passage of time.  As was noticed  in Sunil Fulchand Shah v. Union of India and Ors. (2000 (3)  SCC 409), and State of T.N. and Another v. Kethiyan Perumal  (2004 (8) SCC 780), it is for the appropriate State to consider  whether the impact of the acts, which led to the order of  detention still survives and whether it would be desirable to  send back the detenu for serving remainder  period of  detention. Necessary order in this regard shall be passed  within two months by the appellant \026 State.  Passage of time in  all cases cannot be a ground not to send the detenu to serve  remainder of the period of detention. It all depends on the  facts of the act and the continuance or otherwise of the effect  of the objectionable acts. The State shall consider whether  there still exists a proximate temporal nexus between the  period of detention indicated in the order by which the detenu  was required to be detained and the date when the detenu is  required to be detained pursuant to the present order.   

Appeal is allowed.