Arunachalam v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.06.2008 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUH.C.P.NO.125 OF 2008Arunachalam.. PetitionerVs.1.State of Tamil Nadu, represented by its Secretary, Department of Prohibition and Excise, Fort St. George, Chennai-600 009.2.The District Collector and District Magistrate, Cuddalore District at Cuddalore.. Respondents This habeas corpus petition has been preferred under Article 226of the Constitution of India praying for the issue of a writ ofhabeas corpus to call for the records in C4/DOI/2008, dated13.01.2008 on the file of the second respondent herein and to quashthe same as illegal and to direct the respondents to produce thedetenu Senthil Kumar @ Senthil @ Kunjan, son of Jayapal, now confinedat Central Prison, Cuddalore, before the court and set him atliberty. For Petitioner : Mr.R.SankarsubbuFor Respondents: Mr.Babu Muthu Meeran, APP- - - - ORDER(The order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of the second respondent dated13.01.2008 made in C4/D.O/1/2008, whereby an order of detention underthe Tamil Nadu Act 14 of 1982 was made against Senthil Kumar @ Senthi@ Kunjan, branding him as Goonda as defined under the provisions ofthat Act.2.The affidavit filed in support of the petition is perused alongwith the grounds of attack and also the order under challenge. TheCourt heard the learned counsel for the petitioner and also thelearned counsel for the respondents State. https://hcservices.ecourts.gov.in/hcservices/

3.Consequent upon the recommendations made by the SponsoringAuthority along with the materials in 5 adverse cases in CrimeNos.436/2001, 12/2002, 75/2004, 202/2006 and 123/2007 registered byBhuvanagiri Police Station under the provisions of the Indian PenalCode and also a ground case in Crime No.2/2008 registered by the samepolice station, the Detaining Authority recorded its finding that hehas arrived at subjective satisfaction that the activities of thedetenu were prejudicial to the maintenance of public order and peaceand hence he was to be termed as Goonda as defined under the Act andfurther, a necessity arose to pass an order of detention under theprovisions of the Act in order to prevent him from indulging in suchactivities in future and accordingly, he made an order of detention,which is the subject matter of challenge before this court.4.Advancing arguments on behalf of the petitioner, in his sincereattempt of assailing the order under challenge, the learned counselwould submit that the order of detention was passed on 13.01.2008 onthe materials made available pertaining to 5 adverse cases and oneground case. In the instant case, no one of the adverse cases or theground case was likely to cause disturbance of peace or tranquilityof public or would tell upon any disturbance to the maintenance ofpublic order, which were all against individuals and also against theproperty and under these circumstances, he would not be termed ashabitually committing the same kind of offences and therefore, therewas no necessity to invoke the provisions to pass an order ofpreventive detention. There was no nexus between the adverse casesand the ground case and under these circumstances, the order has gotto be quashed. 5.Added further the learned counsel that there was an order ofdetention passed by the same Authority against the detenu and it wasalso the subject matter of habeas corpus petition before this courtand this Court had an occasion to consider and to set aside theorder. Now, all the 5 adverse cases, which were placed by theSponsoring Authority before the Detaining Authority, were taken intoconsideration and the Authority has passed the order of detentionpresent. Placing reliance upon the decision of the Supreme Courtreported in 1989 SCC (Cri) 367 (CHHAGAN BHAGWAN KAHAR VS. N.L.KALNAAND OTHERS) and 1989 SCC (Cri) 716 (RAMESH VS. STATE OF GUJARAT ANDOTHERS), the learned counsel would contend that the contention isfortified and hence so long as fresh materials were not placed by theSponsoring Authority before the Detaining Authority, the DetainingAuthority should not have passed the order and hence it has got to beset aside. Thirdly, the detenu was arrested on 4.1.2008 and the orderof detention came to be passed on 13.01.2008. In the meanwhile, noapplication for bail was filed by the detenu in Crime No.2 of 2008before any court of criminal jurisdiction, but the DetainingAuthority has pointed out that he was aware of the fact that no bailapplication was filed and even then, there was possibility of thedetenu coming out on bail; that it is only a mere statement madewithout reasonable basis and that on that ground also, the order ofdetention has got to be quashed. https://hcservices.ecourts.gov.in/hcservices/

6.Added further the learned counsel that fourthly, as per thelegal mandate, an intimation should have been given to one of theclose relatives of the detenu immediately after his arrest, but itwas not given and hence the order of detention has got to be quashedon that ground also. 7.The Court heard the learned Additional Public Prosecutor on theabove contentions and has paid its anxious consideration on thesubmissions made.8.Concededly, the order under challenge came to be passed by theDetaining Authority on 13.01.2008 on the strength of 5 adverse casesand one ground case, as referred to above. The first contention putforth by the learned counsel for the petitioner is that there was nonexus between the adverse cases and also the ground case and that hecould not be termed as habitual offender; that the cases registeredagainst him would indicate that they were all the crimes alleged tohave been committed against the persons or the property of theindividuals and under these circumstances, the order has got to bequashed, which in the opinion of the Court cannot be countenanced.In the instant case, it is true, there were 5 adverse cases and alsoone ground case. The Court has also noted all the particulars givenin respect of the relevant facts, which were placed before theDetaining Authority, as could be seen from the available materials.It is true, though the offences were alleged to have been committedagainst the property and the individuals, the Detaining Authority haspointed out, while describing the fact in respect of the Crime No.2of 2008, the ground case, that "On seeing his illegal activities thepublic got fear and ran hither and there, entire traffic came tostand still, the shop vendors closed their shops and thereby hecaused breach of peace and tranquility. Later, he left the scene withhis weapon". Thus, looking from the point of view of the narration ofthe commission of offence, it would be quite clear that at the timewhen the offence was committed, he has caused breach of peace andtranquility. Apart from that, all the offences are sufficient and inparticular the ground case to record such a finding and hence thefirst contention put forth by the learned counsel for the petitioner,though attractive at the first instance, does not stand the scrutinyof law. Accordingly, it is rejected. 9.So far as the other contention is concerned, originally, therewas habeas corpus petition filed before this court, challenging theorder of detention passed earlier against the very same detenu andthe same was also quashed. At this juncture, it is pertinent to pointout that all these 5 adverse cases, which were referred to in theoriginal order of detention, which was the subject matter before thiscourt and subsequently, it was quashed, were exactly the cases whichwere referred to in the present order. The contention put forth bythe learned counsel for the respondents is that in the ground case,all the materials are afresh and therefore what was placed by theSponsoring Authority before the Detaining Authority was a freshmaterial and under these circumstances, now the present order came tobe passed and hence that contention has got to be rejected. Thiscourt is unable to agree with the contention put forth by the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the respondents in view of the decisions of the SupremeCourt, which were relied on by the learned counsel for thepetitioner, as referred to above. It would be more apt andappropriate to reproduce paragraph 12 of the decision of the SupremeCourt reported in 1989 SCC (Cri) 367, which reads as follows:"12.It emerges from the above authoritative judicialpronouncements that even if the order of detention comes toan end either by revocation or by expiry of the period ofdetention there must be fresh facts for passing asubsequent order. A fortiori when a detention order isquashed by the court issuing a high prerogative writ likehabeas corpus or certiorari the grounds of the said ordershould not be taken into consideration either as a whole orin part even along with the fresh grounds of detention fordrawing the requisite subjective satisfaction to pass afresh order because once the court strikes down an earlierorder by issuing rule it nullifies the entire order."Paragraph 10 of the decision of the Supreme Court reported in 1989SCC (Cri) 716 reads as follows:"On a careful scrutiny of the grounds of detention, weunreservedly hold that the detaining authority has takeninto consideration the two criminal cases mentioned underS. Nos.1 and 2 of the table which were the materials in theearlier order of detention that had been quashed and thatit cannot be said that those two cases are mentioned onlyfor a limited purpose of showing the antecedents of thedetenu."From a very reading of the decisions cited above, it would be quiteclear that a fresh material would mean that all the materials, whichwere placed before the Detaining Authority, should not have been one,which were already considered by the Detaining Authority whilepassing the earlier order. In a given case like this, when theDetaining Authority has passed the order of detention, the materialsmust be in entirety afresh and all the adverse cases, which were thesubject matter of the earlier detention order and the Authority hasalso recorded subjective satisfaction on the facts and circumstancesof those adverse cases and subsequently, it came to be the subjectmatter of habeas corpus petition before this court and was alsoquashed and now, by no stretch of imagination, could be considered asa fresh material placed. The materials, which were placed originallyand considered, cannot be the fresh materials now placed. Henceapplying the decisions of the Apex Court, as referred to above, theCourt, without any hesitation, must state that the materials were notafresh and hence this would be the strong ground to set aside theorder. 10.The added circumstance was that the detenu was arrested on04.01.2008 and the detention order came to be passed on 13.01.2008.Admittedly, no bail application was made. In paragraph 5 of the orderof detention, the Detaining Authority has stated as follows: https://hcservices.ecourts.gov.in/hcservices/ "I am aware that Thiru. Senthilkumar @ Senthil @Kunjan, is under judicial custody up to 18.01.2008 inconnection with Bhuvanagiri Police Station Cr.No.2/2008 andlodged at Central Prison, Cuddalore. There is realpossibility of his coming out on bail by filing bailapplication for the above case since in similar cases bailsare granted by the concerned Court or Higher Courts afterlapse of time."A reading of the above would reveal that there was no bailapplication filed. The date of arrest was 04.01.2008 and the ordercame to be passed on 13.01.2008 and no application for bail was filedand all the cases were grave in nature and it passed in the mind ofthe Detaining Authority that there is likelihood of his coming out onbail, which in the opinion of the court is without any basiswhatsoever. Under these circumstances, it is a mere statement made inorder to make such an order under challenge. 11.Lastly, the learned counsel for the petitioner would submitthat there was no intimation at all to the close relatives of thedetenu about the arrest. The learned counsel for the State brought tothe notice of the court that there was an intimation given and it wasalso received by his brother and hence in view of the same, the samehas got to be accepted. The other grounds, which are referred toabove, in the opinion of the Court, would be sufficient to set asidethe order of detention.12.Accordingly, the detention order is set aside. This HabeasCorpus Petition is allowed. The detenu is directed to be set atliberty forthwith unless his presence is required in connection withany other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vvkTo1.THE SECRETARY STATE OF TAMIL NADUREPRESENTED BY ITS SECRETARYDEPARTMENT OF PROHIBITION AND EXCISE FORT ST GEORGE CHENNAI2. THE DISTRICT COLLECTOR OFDISTRICT MAGISTRATECUDDALORE DISTRICTCUDDALORE https://hcservices.ecourts.gov.in/hcservices/

3. THE SUPERINTENDENTCENTRAL PRISONCUDDALORE4. THE JOINT SECRETRY TOGOVERNMENTPUBLIC (LAW AND ORDER)FORT ST.GEORGE,CHENNAI - 95. THE ADDITIONAL PUBLICPROSECUTOR,HIGH COURT MADRASH.C.P.NO.125 OF 2008ssm(co)sra(07/07/2008)