Ganapathy @ Kila @ Prabhakaran v. The Secretary to the Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 92

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.02.2012C O R A MTHE HONOURABLE MR.JUSTICE K.MOHAN RAMANDTHE HONOURABLE MR.JUSTICE G.M.AKBAR ALIHabeas Corpus Petition No.1690 of 2011Ganapathy @ Kila @ Prabhakaran... Petitioner / detenu-Vs.-1. The Secretary to the Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 92. The Commissioner of Police, Greater Chennai, Egmore, Chennai - 8... RespondentsPrayer:- Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Habeas Corpus to callfor the records in connection with the order of detention passed bythe second respondent, dated 10.10.2011, in BDFGISSV No.414/2011against the petitioner / detenu, Ganapathi @ Kila @ Prabhakaran,S/o.Vijayakumar, who is confined at Central Prison, Puzhal, and toset-aside the same and to direct the respondents to produce thedetenu before this Court and to set him at liberty.For Petitioner : Mr. V.Paarthiban, for, Mr. A.Nirmal KumarFor Respondents : Mr. A.N.Thambi Durai, A.P.P., (Crl. Side) O R D E R(Order of the Court was made by K.Mohan Ram, J.,)The detenu himself is the petitioner in the above HabeasCorpus Petition. The detenu came to the adverse notice of thepolice authorities in the following two adverse cases, namely, in(i) Crime No.397 of 2010 on the file of the T-11 ThirunindravurPolice Station for the offence under Sections 147, 148, 341 and 302IPC @ 120(b), 341, 302 read with 109 IPC and (ii) Crime No.506 of2011 on the file of the T-11 Thirunindravur Police Station for theoffence under Sections 341 and 392 IPC. https://hcservices.ecourts.gov.in/hcservices/

2. Subsequently in respect of an occurrence that took placeat about 12.00 noon on 15.09.2011, the detenu was arrested at 14.30hours on 15.09.2011 and he was produced before the Court ofJudicial Magistrate, Thiruvallur, and he was remanded to judicialcustody till 29.09.2011 and his custody was extended till13.10.2011. 3. The Sponsoring Authority, by furnishing the relevantmaterials before the Detaining Authority, sought for the detentionof the detenu as a 'Goonda' under Section 2 (f) of The Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil NaduAct 14 of 1982) (hereinafter referred to as "the Act"). TheDetaining Authority, after perusing the materials before him andafter forming the subjective satisfaction that the detenu has actedin a manner prejudicial to the maintenance of the public order assuch he is a Goonda as contemplated under Section 2 (f) of theTamil Nadu Act 14 of 1982, passed the detention order and the sameis being challenged in the above Habeas Corpus Petition.4. Heard the learned counsel on either side.5. Learned counsel for the petitioner submitted that thedetenu sent a post detention representation dated 11.11.2011 butthe same has been rejected only on 02.12.2011 and the rejectionorder was served on 08.12.2011 and hence there is an unexplaineddelay in the disposal of the representation, dated 11.11.2011,which vitiates the order of detention. He further submitted thatin the English version of the grounds of detention, the DetainingAuthority in several places has referred the name of the detenu as'Thiru.Ganapathy @ Kila @ Prabhakaran' and has also at severalplaces referred the name of the detenu as 'Tvl.Ganesan @ Kila @Prabhakaran'. He further submitted that the said error committedby the detaining authority, in wrongly stating the name of thedetenu in the English version of the grounds of detention, showsclear non application of mind on the part of the DetainingAuthority and the casual manner in which the order of detention hasbeen passed. He further submitted that when the personal libertyof the detenu is sought to be curtailed by passing an order ofpreventive detention, the Detaining Authority is expected to applyhis mind carefully to each and every material placed before him andhad the Detaining Authority perused the materials placed before himand applied his mind on those materials, the aforesaid mistakerelating to the name of the detenu would not have occurred andtherefore, the learned counsel submitted that the detention orderhas been passed in a very casual manner and therefore, thedetention order cannot be sustained. In support of his saidcontentions, the learned counsel based reliance on a Division Benchdecision of this Court reported in 1994-2-L.W. (Crl.) 552 (Sathi @ https://hcservices.ecourts.gov.in/hcservices/ Muthuswamy v. Secretary to Government of Tamil Nadu) and a DivisionBench decision of Gujarat High Court reported in 1994 CRI.L.J. 365(Maheshbhai H. Parekh v. District Magistrate, Bhavnagar andOthers). Learned counsel submitted that except the aforesaidsubmissions, there are no other submissions to be made.6. Countering the said submissions, the learned AdditionalPublic Prosecutor for the respondents submitted that though thereare some errors in the English version of the grounds of detentionrelating to the name of the detenu, no such error is found in theTamil version of the grounds of detention. He further submittedthat when admittedly the language known to the detenu is Tamil andthe error pointed out by the learned counsel for the petitioner isin English, therefore, the same will not in any manner prejudicethe right of the detenu and the said errors cannot be said to bemajor errors which would vitiate the order of detention. Hefurther submitted that the detenu has signed his name only asPrabhakaran while receiving the order of detention as well as thegrounds of detention and also in the affidavit filed before thisCourt, thus, the detenu has not been prejudiced by the wrongmentioning of his name in the English version of the grounds ofdetention as "Tvl.Ganesan @ Kila @ Prabhakaran" instead of"Thiru.Ganapathy @ Kila @ Prabhakaran". He further submitted thatthis is not a case of mistaken identity of the detenu and it isalso not the contention of the petitioner. In support of his saidcontention, the learned Additional Public Prosecutor based relianceon a decision of the Division Bench of this Court, dated05.08.2003, rendered in HCP No.2330 of 2002 (Mrs. Sudha v. TheSecretary to Government, Chennai and another) and another decisionof a Division Bench of this Court, dated 18.01.2006, rendered inHCP No.851 of 2005 (R.Kalavathi v. The State of Tamil nadu and twoothers). As far as the contention of the learned counsel for thepetitioner relating to delay in disposal of the post detentionrepresentation of the petitioner's counsel is concerned, thelearned Additional Public Prosecutor submitted that there isabsolutely no delay in the disposal of the representation and hasfurnished the details relating to the file movement of therepresentation.7. We have considered the aforesaid submissions made by thelearned counsel on either side and perused the materials availableon record.8. A perusal of paragraph 3 of the English version of thegrounds of detention shows that the Detaining Authority startsdescribing / referring the detenu as "Thiru.Ganapathy @ Kila @Prabhakaran" and thereafter, has mentioned the name of the detenuas "Tvl.Ganesan @ Kila @ Prabhakaran" and again at the end of page4 onwards he once-again has stated the name of the detenu as"Thiru.Ganapathy @ Kila @ Prabhakaran". Thus, admittedly, an errorhas been committed by the Detaining Authority while stating the https://hcservices.ecourts.gov.in/hcservices/ name of the detenu, but, admittedly, no such error is found in theTamil version of the grounds of detention.9. According to the learned counsel for the petitioner, thesaid errors not only will amount to non application of mind on thepart of the Detaining Authority, but it will reflect the casualmanner in which the order of detention has been passed by theDetaining Authority. In support of his contention, he relied upontwo decisions referred to supra.10. In the decision reported in 1994-2-L.W.(Crl.) 552(referred to supra) a Division Bench of this Court had an occasionto consider the cumulative effect of discrepancies found in thegrounds of detention. In that case, the contention put forth bythe detenu was that though the detenu was arrested on 03.08.1993,the affidavit filed by the Inspector before the Detaining Authorityindicates that the detenu was in detention from 18.06.1993 to27.08.1993; if this affidavit was to be true, there would be nojustification for any incident on 03.08.1993; this, according tothe learned counsel for the detenu, needed attention of theDetaining Authority and indicates that he has not seriously andcarefully applied his mind to the facts on record; it was furthercontended that with reference to the papers supplied to the detenuthat though the offence was committed on 03.08.1993, the FirstInformation Report in relation to that offence was sent to theMagistrate on 03.07.1993; it was contended that, that was a majordiscrepancy clearly indicating non-application of mind; furtherthere was a discrepancy relating to the jail in which the detenuwas confined and therefore it was contended that there was totalnon application of mind on the part of the Detaining Authority andthe Detaining Authority has not been cautious and careful in hisapproach in passing the detention order. The Division Bench, afterconsidering the aforesaid discrepancies came to the conclusion thatthese discrepancies are sufficient to infer that the DetainingAuthority has not taken any interest in the matter and signed theimpugned order on the dotted line. The Division Bench has furtherheld as follows:-"5. ... The minimum that we would expect from theDetaining Authority is to pass the order in a manner soas to indicate that he has applied his mind to the factsand circumstance of the case and recorded hissatisfaction as contained therein. This approach is acareful and cautious approach to be adopted in thecontext of Article 22 (5) of the Constitution of Indiaand the provisions of Tamil Nadu Act 14 of 1982. It mustbe regretted that the Detaining Authority, in the presentcase, has not been as careful and cautious as expected ofhim and has adopted a casual and careless approach indealing with a matter involving constitutionallyguaranteed liberty of a citizen. We are therefore, https://hcservices.ecourts.gov.in/hcservices/ satisfied that it is a fit case for issue of a writ ofHabeas Corpus to quash the impugned order of detention."11. In the decision reported in 1994 CRI.L.J.365 (referred tosupra) a Division Bench of the Gujarat High Court had an occasionto consider a similar contention, namely," (1) That despite the fact that though the DetainingAuthority himself by his own duly signed committal order,dated 26-8-1992, had directed the detenu to be detained atthe District Jail, Bhuj at Kachchh, still however,surprisingly enough in the first three lines of even datedGrounds of Detention, he informed the detenu to makerepresentation through the Superintendent, Sub-Jail,Bharuch? This patent infirmity on face of it clearlydemonstrates the casual and mechanical exercise of powersby just blindly signing the grounds of detention, thedetention order and the committal order, which indeed inturn adversely reflects upon the genuineness of thesubjective satisfaction of the Detaining Authority soarrived at while passing the detention order, whichincidentally and sufficiently enough vitiates thesubjective satisfaction rendering the detention of thedetenu illegal and unconstitutional."and after considering the said contention, the Division Bench hasheld as follows:-"5. The fact remains that while signing the groundsof detention, detention order and the committal order,the Detaining Authority apparently has not exhibited hispersonal awareness taking unavoidable, absolute and muchneeded requisite care to see as to what has been statedin first three lines of para 6 of the grounds ofdetention and committal order. This inference ismanifestly unavoidable because had indeed the papers beenpersonally and carefully perused, the above patentinconsistencies would not have crept in, as the samecould have been immediately detected and avoided, Ratherto be more exact, the said inconsistencies would not havecrept in at all. This situation in a way clearlydemonstrates the total remissness on the part of theDetaining Authority in mechanically and casuallyexercising the extraordinary powers of the preventivedetention, sadly reflecting upon the very genuineness andcredibility of the subjective satisfaction and the orderspassed pursuant to the same. ......... Unless thematerial on the basis of which Order is passed reflectsthe total application of mind and awareness of theDetaining Authority, indicative enough of personally andcarefully considered the entire material placed beforehim, coupled with further imperative care to be takenregarding the statutory and constitutional procedural https://hcservices.ecourts.gov.in/hcservices/ safe-guards, the same is liable to be quashed and set-aside."12. But countering the said submission of the learned counselfor the petitioner, it is contended by the learned AdditionalPublic Prosecutor that errors pointed out by the learned counselfor the petitioner in the English version of the grounds ofdetention are not vital errors, which will affect the subjectivesatisfaction, but are only minor errors and when admittedly thesaid errors found in the English version of the grounds ofdetention are not found in the Tamil version of the grounds ofdetention it will not vitiate the order of detention. In supportof the said contention, the learned counsel based reliance on thetwo decisions referred to supra.13. A Division Bench of this Court, by the order dated05.08.2003, rendered in HCP No.2330 of 2002 (referred to supra), inparagraph 2, has narrated the grounds of detention of that case,which reads as follows:- "2. .... The offence under Sections 307, 395, 397,419 and 506 (2) I.P.C. Relate to attempt to murder,dacoity, robbery and criminal intimidation as suchpunishable under chapters 16, 17 and 22 of the said Code.Hence, I am satisfied that Tr.Soundar @ Soundararajan ishabitually committing crimes and has acted in a mannerprejudicial to the maintenance of public order and assuch punishable under Section 2 (f) of the Tamil Nadu Act14 of 1982. By committing the above described gravecrime in the public, in a busy residential cum businessarea, in the busy evening time, in the heart of ChennaiCity has created an alarm and a feeling of insecurity inthe minds of the people of the area and thereby acted ina manner prejudicial to the maintenance of public order."and it was contended on behalf of the detenu that there was totalnon application of mind on the part of the Detaining Authority.While considering such a contention, the Division Bench has held asfollows:-"3. The order of detention in the tamil language wasalso served on the detenu and in that order the referenceto Section 2 (f) is preceded by the statement that thedetenu is a "Goonda" as defined in under Section 2 (f).Counsel contends that the discrepancy in the two versionis sufficient to establish the non application of mind onthe part of the detaining authority and, therefore, thedetention order should be held to be invalid.4. It is not in dispute that what is said in tamilis correct. The fact that in the english version whilereferring to "Goonda" under Section 2 (f) instead ofstating 'as defined under that section' it has beenstated that 'as such punishable under Section 2(f) of theTamil Nadu Act 14 of 1982'. This mistake is not of such https://hcservices.ecourts.gov.in/hcservices/ character to warrant an inference that there has been nonapplication of mind on the part of the detainingauthority. In this State, tamil is the official languageof the State and it is submitted by the prosecutor thatthe orders of detention are drawn up in both the languageviz. English as also in tamil. When the tamil versioncorrectly sets out the content of the order, tamil beingthe language known to the detenu, the fact that theEnglish version has a minor error while referring to thestatutory provision, would not be sufficient to warrantthe inference of non application of mind on the part ofthe detaining authority.5. It is not every minor error in the order thatwould justify the inference of non application of mind.Venial mistakes and trivial errors, typographical andclerical mistakes which do not impinge on the substanceof the matter as also the minor translation errors whichdo not affect the substance cannot be regarded asconstituted sufficient basis to support an inference ofnon application of mind on the part of the detainingauthority to the material which he was required toconsider before forming his subjective satisfactionregarding the need for detention."14. Another Division Bench of this Court, in its order, dated18.01.2006, rendered in HCP No.851 of 2005 (referred to supra) hasfollowed the aforesaid decision while rejecting the contention thatthe discrepancies in the crime numbers mentioned in the grounds ofdetention would indicate non application of mind on the part of theDetaining Authority and the same would vitiate the order ofdetention and has ultimately held as follows:-"7. Coming to defective translation, we verified thedocuments, wherein, according to the petitioner, certainwords / phrases were not correctly translated. We aresatisfied that there is no major error in thetranslation, which would justify the inference of nonapplication of mind. It is useful to refer that inHCP.No.2330 of 2002 dated 05.08.2003 (Sudha vs. Secretaryto Government and another), a Division Bench of thisCourt considering certain discrepancies in thetranslation copies supplied to the detenu held that,"5. It is not every minor error in the order thatwould justify the inference of non application ofmind. Venial mistakes and trivial errors,typographical and clerical mistakes which do notimpinge on the substance of the matter as also theminor translation errors which do not affect thesubstance cannot be regarded as constitutedsufficient basis to support an inference of nonapplication of mind on the part of the detainingauthority to the material which he was required to https://hcservices.ecourts.gov.in/hcservices/ consider before forming his subjective satisfactionregarding the need for detention."15. At the outset, it has to be pointed out that the said twodecisions relied upon by the learned Additional Public Prosecutorare binding on us. Whereas, the Division Bench decision of theGujarat High Court reported in 1994 CRI.L.J. 365 (referred tosupra) is not binding on us. However, we would like to point outthat in the decision rendered by the Gujarat High Court, the errorcommitted by the Detaining Authority was that while the DetainingAuthority had directed the detenu to be detained at the DistrictJail, Bhuj at Kachchh, still however, in the grounds of detention,the Detaining Authority informed the detenu to make representationthrough the Superintendent, Sub-Jail, Bharuch. This error wasconsidered as a material error, which according to the DivisionBench, adversely reflected upon the genuineness of the subjectivesatisfaction of the Detaining Authority so arrived at, whilepassing the order of detention.16. Under the relevant provisions of the detention laws, it isincumbent upon the Detaining Authority to inform the detenu abouthis right to make a representation against the order of detentionand it should be specifically stated in the grounds of detention asto whom he should make such a representation. In that case, it wasinformed to the detenu that while the Detaining Authority haddirected the detenu to be detained at District Jail, Bhuj atKachchh, the Detaining Authority had informed the detenu that thedetenu can make representation to the Superintendent, Sub-Jail,Bharuch, which is a material mistake, which had affected the rightof the detenu to make an effective representation and therefore itwas a material mistake and in that context only, the Gujarat HighCourt has held that the order of detention had been passed in avery casual manner without proper application of mind to thematerials placed before it and therefore, the subjectivesatisfaction is distinguishable on facts also.17. In the decision reported in 1994-2-L.W. (Crl.) 552(referred to supra), relied upon by the learned counsel for thepetitioner, as pointed out above, the error was committed by theDetaining Authority relating to the very date of arrest. In thatcase it was contended that the detenu was arrested on 03.08.1993,whereas in the affidavit filed by the Inspector before theDetaining Authority it was stated that the detenu was in detentionfrom 18.06.1993 to 27.08.1993 and therefore, the Division Benchobserved that there would be no justification for any incident on03.08.1993. Further, the First Information Report, was stated tohave been sent to the Judicial Magistrate on 03.07.1993. Further,there was a contradiction as to in which jail the detenu was kept.While actually in that case the detenu was kept in Sub Jail,Sivaganga, the detention order mentions that he was in CentralPrison, Madurai and while considering the aforesaid contradictions, https://hcservices.ecourts.gov.in/hcservices/ the Division Bench came to the aforesaid conclusion. The saidcontradictions pointed out by the Division Bench in the decisionare vital and material contradictions affecting the very subjectivesatisfaction of the Detaining Authority. 18. We are of the considered view that the said decisions arenot applicable to the facts of this case as in this case theaforesaid material contradictions are not found. The contradictionpointed out, in this case, is only relating to alias name of thedetenu and no such error is found in the Tamil version of thegrounds of detention and therefore, it cannot be said that theerror is a material error or it would amount to non application ofmind on the part of the Detaining Authority or the detention orderhas been passed in a very casual manner. As held in HCP No.2330 of2002 by the Division Bench decision, referred to supra, it is notthat every minor error in the order that would justify theinference of non application of mind. Venial mistakes or trivialerrors, typographical and clerical mistakes which do not impinge onthe substance of the matter as also the minor translation errorswhich do not affect the substance cannot be regarded asconstituting sufficient basis to support an inference of nonapplication of mind on the part of the Detaining Authority to thematerial which he was required to consider before forming hissubjective satisfaction regarding the need for detention.19. In our considered view, as rightly contended by thelearned Additional Public Prosecutor, there is no mistaken identityof the detenu. The said errors pointed out by the learned counselfor the petitioner cannot be considered to be a material errorwhich will affect the subjective satisfaction arrived at by theDetaining Authority. We do not find any casualness in the passingof the order of detention. Moreover, the Tamil version of thegrounds of detention correctly states the name of the detenu in allthe places and therefore, the contentions of the learned counselfor the petitioner cannot be countenanced. 20. We do not find any reason, whatsoever, to interfere withthe order of detention passed by the Detaining Authority andaccordingly, the above Habeas Corpus Petition fails and the same isdismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.srk https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to the Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 92. The Commissioner of Police, Greater Chennai, Egmore, Chennai - 83. The SuperintendentCentral Prison,Puzhal, Chennai(In duplicate for communication to detenue)4. The Joint Secretary to GovernmentPublic (Law and order)Fort St. George, Chennai-95. The Additional Public Prosecutor,High Court, Madras -104H.C.P.No.1690 of 2011MSM (CO)kk 19/3