Breather for officials invoking Goondas Act

Order detaining a person under the law would not stand vitiated on the ground that the ‘sponsoring authority’ acted with predetermination, rules HC

Published: 23rd April 2013 07:56 AM  |   Last Updated: 23rd April 2013 07:56 AM   |  A+A-

In a judgment having far-reaching consequences, a full bench of the Madras High Court on Monday held that an order detaining a person under the Goondas Act would not stand vitiated on the ground that the ‘Sponsoring Authority’ (SA) had contemplated invoking the law in advance and acted with predetermination. The full bench comprising Justices K N Basha, S Nagamuthu and S Palanivelu gave the ruling while answering a question referred to it on the issue. Hitherto, the High Court had set aside detention orders on umpteen number of cases, holding that predetermination could vitiate the detention order.

In most of the cases, the sponsoring authority would be the law enforcing officers and the detaining authority the head of administration.

In this case, Mariammal of Virudhunagar questioned the orders of the District Collector dated May, 2008, detaining her daughter under the Goondas Act after holding that she was a drug offender. As there were conflicting judgments, the case was referred to the bench.

The bench observed that the court was required to examine as to whether there was application of mind on the part of the Detaining Authority (DA) and whether the subjective satisfaction arrived at by the DA was based on materials and on sound reasons. The word ‘determination’ meant a ‘final decision’; pre-determination meant a decision arrived at sometime before.

“The DA for the first time looks into the materials placed before him, applies his independent mind into the same, arrives at a subjective satisfaction that detention is absolutely necessary and then for the first and last time takes a final decision (determination) to pass the detention order. There is no pre-determination (pre-decision) on the part of the DA at all. The determination of the sponsoring authority (SA) is one thing which means decision to sponsor the case to the DA. There is no pre-determination on the part of the SA as well. There is only one determination on the part of the SA — determining to sponsor the case to the DA.

“Similarly, there is only one determination on the part of the DA — to detain the detainee. Thus, neither in the case of the DA nor in the case of the SA, there is any pre-determination. The determination (final decision) of the SA is recommendatory in nature, which has got nothing to do with the determination (final decision) of the DA as the DA is not bound by such determination of the SA. The final outcome of passing the detention order is construed to be the independent decision of the DA on the basis of the perusal of the materials placed before him and application of his independent mind,” the bench observed.

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