The Sec.To Govt. Public(L.&O.;)D.S. & ... vs Nabila & Anr

3. The respondent-writ petitioner, being the wife of the detenu, by way of Habeas Corpus Petition before the High Court, challenged the detention order mainly on the ground that the detenu was detained on the solitary ground case and the sponsoring authority has failed to place any material before the detaining authority to show that either the detenu himself or his relatives have taken any step to file bail application in a solitary ground case. The High Court held that the satisfaction arrived at by the detaining authority that there is real or imminent possibility of the detenu being enlarged on bail is vitiated in law.

11. The Habeas Corpus Writ Petition under Article 226 of the Constitution of India was filed by the respondent No.1, the wife of the detenu. The order of detention was primarily based on the information received by the Sub-Inspector of Police Q. Branch, CID, Trichy, who went to TVS toll gate, Trichy along with his force and detenu was arrested and confessional statement was recorded which lead to seizure of incriminating articles containing official secrets relating to Indian Defence Forces and other articles. The Inspector of Police 'Q' Branch CID, Karur received those incriminating and other articles along with the special report and registered a case in Crime No.1 of 2012 under Sections 3,4, and 9 of Official Secrets Act, 1923 read with Section 120(B) IPC. Later on the detenu was produced before the Court of Judicial Magistrate No.2, Trichy and was remanded to judicial custody and his remand was periodically extended. The Detaining Authority being satisfied with the material placed by the Sponsoring Authority that the activities of the detenu are prejudicial to the security of the State, passed the order of detention on 5.12.2012.

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 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.

[pic]6. A reading of the above quoted paragraphs would reveal that when an order of a court quashing the detention is set aside, the remittance of the detenu to jail to serve out the balance period of detention does not automatically follow and it is open to the detaining authority to go into the various factors delineated in the judgments aforequoted so as to find out as to whether it would be appropriate to send the detenu back to serve out the balance period of detention. In this view of the matter, we are of the opinion that the detaining authority must be permitted to re-examine the matter and to take a decision thereon within a period of 3 months from the date of the supply of the copy of this order. We further direct that during this period the interim order in favour of the appellant given by us on 30-4-2007 will continue to operate."

21. As noticed above, the detenu was taken into custody in September, 2012, and the order of detention was passed in December, 2012. The said order of detention was finally quashed by the High Court in terms of Order dated 26.4.2013. Apparently, therefore, a long time has lapsed inasmuch as the period of detention fixed in the order of detention has already expired in April, 2014. Even if the impugned order passed by the High Court is set aside, the detenu cannot and shall not be taken into custody for serving the remaining period of detention unless there still exist materials to the satisfaction of the detaining authority for putting him under detention. In other words, initial detention order having been expired long back, it is for the detaining authority to take a decision in accordance with law.

22. In the facts and circumstances of the case and after giving out anxious consideration in the matter, we are of the considered opinion that the impugned order passed by the High Court cannot be sustained. Therefore, this appeal is allowed and the impugned order passed by the High Court, quashing the order of detention, is hereby set aside with the direction and observations made hereinabove.