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CASE NO.: Appeal (crl.) 1047 2000

PETITIONER: STATE OF TAMIL NADU & ANOTHER

       Vs.

RESPONDENT: KADAL KANI

DATE OF JUDGMENT:       01/12/2000

BENCH: M.B.Shah, S.N.Variava

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     O  R  D E R Leave granted.  Heard the learned  counsel for  the  parties.  The High Court by the impugned  judgment and  order  dated 7.4.2000 has quashed the  detention  order dated 16.10.1999 on the ground that there is non-application of  mind  on  the part of the detaining  authority  and  has mechanically  signed  the same because it is stated  in  the detention   order   that   it    be   served   through   the Superintendent,  Central Prison, Thiruchirapalli which would mean  that the detaining authority was not aware of the fact that  the detenu was released on bail.  The learned  counsel for   the   appellants  submitted   that  there   is   total non-application  of mind by the High Court to the  detention order.   Detention order specifically mentions in the ground No.6  that  he  was aware that detenu has been  released  on conditional  bail by order dated 17.9.1999 in Cr.  M.P.  No. 2138  of 1999 by the Judicial Magistrate-II, Mayiladuthurai. In  this set of circumstances, it cannot be said that  there is non-application of mind by the detaining authority merely by  mentioning  that  detention   order  be  served  through Superintendent,  Central  Prison, Thiruchirapalli.   In  our view,  it  appears  that  the   learned  Judge  has  lightly interfered  with the detention order without reading  ground No.6  which specifically recites that detenu was released on bail  by  order  dated  17th September  1999.   Further  the detention  order  is addressed to the detenu mentioning  his residential  address.   Therefore, there was no question  of serving  the detention order through Superintendent, Central Prison.   By  sending  copy to the  Superintendent,  Central Prison  would not make the detention order illegal.   Hence, the  impugned order passed by the High Court requires to  be quashed  and  set  aside  and  is  accordingly,  set  aside. Learned  counsel for the appellant submitted that the detenu should  be  ordered  to surrender to undergo  the  remaining period  of detention.  For this purpose, he placed  reliance on  the  directions issued by this Court in  Sunil  Fulchand Shah  v.  Union of India & Ors.  [(2000) 3 SCC 409] which is reproduced  hereunder:   - 6.  The quashing of an order  of detention  by the High Court brings to an end such an  order and  if  an appeal is allowed against the order of the  High Court, the question whether or not the detenu should be made

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to  surrender to undergo the remaining period of  detention, would  depend upon a variety of factors and in particular on the question of lapse of time between the date of detention, the  order  of the High Court, and the order of this  Court, setting aside the order of the High Court.

     A  detenu  need  not  be  sent  back  to  undergo  the remaining  period of detention, after a long lapse of  time, when  even  the  maximum prescribed period intended  in  the order  of detention has expired, unless 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 appellate order and the State  is able  to  satisfy  the  court   about  the  desirability  of further or continued detention.

     Applying the aforesaid ratio, in our view, this is not a  fit case for directing the detenu to surrender to undergo the  remaining  period  of detention.  Detention  order  was passed  on 6th October, 1999 and hence, detention period  is over.  In the result, the appeal is allowed to the aforesaid extent.