Mary JasmineW/o.J.D. Soloman v. The Secretary to the Government

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16-08-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MRS. JUSTICE R. BANUMATHIHABEAS CORPUS PETITION NO.118 OF 2007Mary JasmineW/o.J.D. Soloman.. PetitionerVs.1. The Secretary to the Government, Prohibition & Excise Department, Secretariat, Chennai 600 009.2. The Commissioner of Police, Greater Chennai, Egmore, Chennai 8... RespondentsPetition filed under Article 226 of the Constitution of India for theissuance of writ of Habeas Corpus to call for the records in connectionwith the order of detention passed by the second respondent dated18.11.2006 in Memo No.285/BDFGISSV/2006, against the petitioner's husband,J.D. Soloman, son of Jesudoss, aged about 65 years, who is confined atCentral Prison, Chennai, and set aside the same and direct the respondentsto produce the detenu before this Court and set him at liberty.For Petitioner: Mr. V.Parthiban For Respondents: Mr.M. Babu Muthu Meeran Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ O R D E RP.K. MISRA, JWife of the detenu has filed this Habeas Corpus Petition forquashing the order of detention dated 18.11.2006 passed by theCommissioner of Police, Chennai under Section 3(1) read with 3(2) of theTamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of1982) on the allegation that the detenu is a Goonda within the meaning ofthe said Act. 2. The order of detention dated 18.11.2006 was executed on19.11.2006. Subsequently, copy of the grounds of detention was served on23.11.2006. In the grounds of detention it is indicated that four personsincluding the detenu had formed a Trust in the name of "Alleluiah FullGospel Ministries Mission India and Weaker Section Development ServiceTrust of India with the aim of constructing dwelling houses for the poorpublic by getting foreign aid. It is further stated that the detenu was amember of the Trust. In the grounds of detention reference has been madeto several incidents wherein the President, Secretary and Members of theTrust are alleged to have cheated several contractors by requiring them tomake deposits as Earnest Money Deposit. It is further stated that whenthe persons came to know of the fraud, they had asked for refund of theamount deposited, but such persons were threatened. In the grounds ofdetention reference has been made to several cases registered underSections 406, 420, 341, 323, 506(2) read with 34 IPC and it is furtherindicated that investigation was going on. In the above background, thedetaining authority concluded :-"3. ... Hence, I am satisfied that Thiru J.D. Solomon ishabitually committing crimes and has cheated about 560 personsunder the guise of offering construction work by abusing andmisusing religious position as Rev. Father and collected hugemoney to the tune of Rs.6.5 Crores as Earnest Money Deposit.Further there was total commotion among the members of theChristian community an they were mentally disturbed very muchbecause of the nefarious activities of Thiru. Joseph Solomon,Thiru. Issac Samuel and Thiru.J.D. Solomon holding responsibleposition in the community made them to bow their head sincecaused serious hurt to the community. Having regard to theamplitude of the gravity of the offence, perpetrate in anorganized and systematic manner not only against the victims, butalso against the civilized society at large will amount todisturbance of pubic order and thus he has acted in a mannerprejudicial to the maintenance of public order and as such he isa Goonda as contemplated under Section 2(f) of the Tamil Nadu 14 https://hcservices.ecourts.gov.in/hcservices/ of 1982. By committing the above described grave crime he hascheated a number of persons under the guise of offeringconstruction work and collected huge money to the tune of Rs.6.5Crores as Earnest Money Deposit has created alarm and a feelingof insecurity in the minds of the people of the area and therebyacted in a manner prejudicial to the maintenance of public order.4. I am aware that Thiru. J.D. Solomon is in remand inCentral Crime Branch "X" Crime Nos.775/2006, 789/2006, 790/2006,791/2006, 792/2006, 795/2006 and 796/2006 and has moved bailapplications before the Additional Chief Metropolitan MagistrateCourt, Egmore, Chennai, in Crl.M.P.No.1300/2006 in "X" CrimeNo.775/2006 and the same was dismissed. Another bail applicationwas filed before the Additional Chief Metropolitan MagistrateCourt, Egmore, Chennai in "X" Crime No.775/2006 and the same ispending. I am also aware that it is very likely of his comingout on bail since in similar cases bails are granted by the sameCourt. I am also aware that there is real possibility of hiscoming out on bail by filing another bail application before theAdditional Chief Metropolitan Magistrate Court, Egmore, Chennaiin "X" Crime Nos.789/2006, 790/2006, 791/2006, 792/2006, 795/2006and 796/2006 since in similar cases bail orders are granted bythe same Court. If he comes out on bail, he will indulge infurther activities, which will be prejudicial to the maintenanceof public order. Further the recourse to normal criminal lawwould not have the desired effect of effectively preventing himfrom indulging in such activities, which are prejudicial to themaintenance of public order. On the materials placed before me,I am fully satisfied that the said Thiru.J.D. Solomon is a Goondaand that there is a compelling necessity to detain him in orderto prevent him from indulging in such further activities infuture which are prejudicial to the maintenance of public orderunder the provisions of the Tamil Nadu Act 14 of 1982."3. Learned counsel appearing for the petitioner has challengedthe above order of detention by raising the following grounds :-(1) The conclusion of the detaining authority that the detenu, whowas in custody, likely to be released on bail is based on incorrectparticulars and there has been non-application of mind on the above aspect.(2) There has been delay in disposal of the representation and thecommunication of the result thereof.(3) The conclusion that the detenu has cheated about 560 persons isnot based on any material and at any rate materials in support of suchconclusion has not been furnished to the detenu.(4) The conclusion of the detaining authority that it is necessary todetain the detenu to prevent him from acting in a manner prejudicial tothe maintenance of public order is vitiated as the incidents relied uponby the detaining authority can only give rise to law and order situationand the question of affecting public order did not arise keeping in viewthe nature of the alleged offences committed. https://hcservices.ecourts.gov.in/hcservices/

4. So far as the first contention is concerned, it appears thatthe detaining authority was labouring under the impression that afterrejection of Crl.M.P.No.1300 of 2006 in Cr.No.775 of 2006, another bailapplication was filed before the Additional Chief Metropolitan Magistrateand the same was pending. Learned counsel for the petitioner has invitedour attention to Page No.141 of the booklet which indicates that suchsubsequent bail application had been rejected. A specific assertion tothat effect has also been made in the affidavit in Ground No.5. It isalso further contended that conclusion of the detaining authority "thatthere is real possibility of the detenu coming out on bail by filinganother bail application before the Additional Chief MetropolitanMagistrate Court, Egmore, Chennai, in "X" Crime Nos.789/2006, 790/2006,791/2006, 792/2006, 795/2006 and 796/2006" discloses non-application ofmind on the part of the detaining authority. The question of filinganother bail application in those cases could not have arisen as the firstapplication for bail has not been filed.5. Learned counsel for the petitioner has contended thatconclusion recorded in para 4 of the grounds of detention, which hasalready been extracted by us, clearly indicates that the order ofdetention has been passed in a mechanical manner without even bothering tonotice that bail application was not pending as erroneously assumed by thedetaining authority. In support of such contention, learned counsel forthe petitioner has placed reliance upon the decision of this Courtreported in (2003)M.L.J. (Crl.) 214 (N. KUMARESAN v. STATE REPRESENTED BYSECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT, CHENNAI ANDANOTHER), wherein it was observed :-"5. ... Though it is true that all the bail applicationswhich are ultimately rejected need not be put before thedetaining authority and their copy need not be supplied to thedetenu later on, it is unthinkable that the detaining authoritydoes not even take note of that fact and on the other hand makesa completely incorrect factual statement that no bail applicationwas filed till the order was passed. This suggests the casualapproach on the part of the detaining authority. We are,therefore, convinced that this incorrect statement depicts thecasual approach with which the matters were dealt with, firstlyby the sponsoring authority and secondly by the detainingauthority. In that view, the detention order itself would be badas it was passed casually and on the basis of incorrectstatements made in the grounds. However, the matter does notstop here." 6. In several decisions of the Supreme Court, noticed by theFull Bench of this Court reported in 2005(4) CTC 497 (K. THIRUPATHI v.DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, TIRUCHIRAPALLI DISTRICT ATTIRUCHIRAPALLI AND ANOTHER), it has been observed that even where a personis in custody an order of preventive detention can be passed, if thedetaining authority on cogent materials on record comes to the conclusion https://hcservices.ecourts.gov.in/hcservices/ that there is imminent possibility of the detenu being released on bail.It is obvious that while arriving at such a conclusion the detainingauthority is required to keep in view the correct factual position.7. In the present case, even though the subsequent bailapplication in Cr.No.775 of 2006 had been rejected, the detainingauthority was labouring under the impression that such bail applicationwas still pending. If the detaining authority would have taken note ofthe fact that the subsequent application also had been rejected, it isquite possible that the detaining authority in its subjective satisfactionmight have come to a different conclusion that there was no imminentpossibility of the detenu being released on bail. At any rate, since theconclusion of the detaining authority is her subjective satisfaction it isnot possible for us to fathom as to what would have been the conclusion ofthe detaining authority if she would have taken note of the correctfactual position relating to rejection of bail application at the timewhen the detention order was passed. In our considered opinion, the wrongassumption of the detaining authority on such vital aspect has the effectof vitiating the ultimate conclusion of the detaining authority. On thisground the detention order is liable to be quashed.8. The second ground raised by the petitioner is unexplaineddelay in dealing with the representation and communicating the resultthereof. Learned counsel appearing for the State has produced before us achart indicating the manner in which the representation dated 11.12.2006,which was received on 12.12.2006, has been dealt with. It appears thateven though remarks were called for on 13.12.2006 such remarks werereceived on 27.12.2006. It appears that in the office of theCollectorate, even though remarks were received from the sponsoringauthority on 20.12.2006 such report was sent to the Government on25.12.2006. There is no explanation forthcoming as to why remarks couldnot have been sent to the Government soonafter such remarks were receivedfrom the sponsoring authority. Similarly, it seems the rejection letter,even though sent to the detenu on 29.12.2006, was served on the detenu on5.1.2007, for which no explanation is forthcoming. 9. It is well settled that the representation made by the detenushould be considered as expeditiously as possible without any unavoidabledelay and proper explanation should be furnished for any delay. In thefacts of the present case, we are convinced that there has beenunexplained delay in dealing with the representation as well assubsequently communicating the result of such representation. On thisground also the order of detention is liable to be quashed.10. It is no doubt true that the allegations against the detenuand other co-accused persons are quite serious in nature. However, it iswell settled that in matters relating to preventive detention, theprocedural safeguards are to be strictly adhered to and any infractioninevitably results in quashing of the order of detention. In this https://hcservices.ecourts.gov.in/hcservices/ connection, the sentiments expressed by Bhagwati, J in AIR 1980 SC 1183(SMT. ICCHU DEVI CHORARIA v. UNION OF INDIA AND OTHERS) are worthrecalling. It was observed in that case :-"3. . . . We may point out straightaway that we are not atall happy at the thought that our order may have resulted insetting free a possible smuggler. We are not unmindful of thefact that the COFEPOSA Act has been enacted for the purpose oferadicating the evil of smuggling which is eating into the vitalsof the nation like a cancerous growth and eroding the economicstability of the country and when an order is made by the Courtreleasing a person detained under this Act, it is quite possiblethat the effect of the order may be to let loose on the society,a smuggler who might in all probability, resume his nefariousactivities causing incalculable mischief and harm to the economyof the nation. But at the same time we cannot forget that thepower of preventive detention is a draconian power justified onlyin the interest of public security and order and it is toleratedin a free society only as a necessary evil. The power to detainwithout trial is an extraordinary power constituting encroachmenton personal liberty and it is the solemn duty of the Courts toensure that this power is exercised strictly in accordance withthe requirements of the Constitution and the law. The courtsshould always lean in favour of upholding personal liberty, forit is one of the most cherished values of mankind. Without itlife would not be worth living. It is one of the pillars of freedemocratic society. Men have rightly laid down their lives atits altar in order to secure it, protect it and preserve it. TheConstitution has therefore, while conceding the power ofpreventive detention, provided procedural safeguards with a viewto protecting the citizen against arbitrary and unjustifiedinvasion of personal liberty and the courts have always zealouslytried to uphold and enforce these safeguards. This Court hasalso through its judicial pronouncements created various legalbulworks and breakwaters into the vast powers conferred on theexecutive by the laws of preventive detention prevalent atdifferent points of time. It is true that sometimes even asmuggler may be able to secure his release from detention if oneof the safeguards or requirements laid down by the Constitutionor the law has not been observed by the detaining authority butthat can be no reason for whittling down or diluting thesafeguards provided by the Constitution and the law. If thedetaining authority wants to preventively detain a smuggler, itcan certainly do so, but only in accordance with the provisionsof the Constitution and the law and if there is a breach of anysuch provision, the rule of law requires that the detenu must beset at liberty, however wicked or mischievous he may be. The lawcannot be subverted, particularly in the area of personalliberty, in order to prevent a smuggler from securing his releasefrom detention, because whatever is the law laid down by thecourts in the case of a smuggler would be equally applicable in https://hcservices.ecourts.gov.in/hcservices/ the case of preventive detention under any other law. This courtwould be laying down a dangerous precedent if it allows a hardcase to make bad law. We must, therefore, interpret theprovisions of the Constitution and the law in regard topreventive detention without being in any manner trammeled by thefact that this is a case where a possible smuggler is seeking his release from detention."(Emphasis added)11. In such view of the matter, we are constrained to quash theorder of detention notwithstanding the seriousness of the allegations. Itis not necessary to consider other contentions raised by the petitioner asthe detention order is being quashed.12. The Habeas Corpus Petition is accordingly allowed and theimpugned order is set aside. The detenu is set at liberty forthwithunless his presence is required in connection with any other case.dpkSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Secretary to the Government, Prohibition & Excise Department, Secretariat, Chennai 600 009.2. The Commissioner of Police, Greater Chennai, Egmore, Chennai 8.3. The Public Prosecutor, High Court, Madras.4. The Superintendent, Central Prison,puzhal, Chennai.5. The Joint Secretary to Government, Public (Law & Order) Fort St.George, Chennai-9.KLT(CO)dcp/23.8 HCP.NO.118/2007