Radhakrishnan @ Dayalan v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 06.01.2009Coram :The Hon’ble Mr. Justice ELIPE DHARMA RAOandThe Hon’ble Mr. Justice S.TAMILVANANH.C.P.Nos.1439, 1441, 1443, 1444 1445 and 1446 of 2008 Senthil @ Senthilkumar … Petitioner in H.C.P.No.1439 of 2008Radhakrishnan @ Dayalan … Petitioner in H.C.P.No.1441 of 2008Jayaraj @Kullan … Petitioner in H.C.P.No.1443 of 2008Muthu @ Dimikki Muthu … Petitioner in H.C.P.No.1444 of 2008Prathap … Petitioner in H.C.P.No.1445 of 2008Selvam @ Periya Selvam … Petitioner in H.C.P.No.1446 of 2008vs.1. State of Tamil Nadu, represented by The Secretary to Government Department of Prohibition and Excise, Secretariat, Chennai – 9.2. The Commissioner of Police, Greater Chennai, Officer of the Commissioner of Police, Egmore, Chennai.3. The Inspector of Police, F-5, Choolaimdeu Police Station, Chennai. ..Respondents 1 to 3 in HCP.No.1439, 1441, 1443, 1445 and 1446/08 and Respondents 1 and 2 in HCP.1444/08The Inspector of Police,E4 Madhuravoil Police Station, Chennai ..3rd Respondent in HCP.1444/08Petitions filed under Article 226 of the Constitution of India toissue a Writ of Habeas Corpus for the relief stated therein. For Petitioners : Mr.B.Kumar, Senior Counsel for Mr.R.Diwakaran For Respondents : Mr.N.R.Elango Addl. Public ProsecutorCOMMON O R D E RS.TAMILVANAN, JAll the Habeas Corpus Petitions are filed against the detentionorder, dated 25.07.2008 passed by the second respondent herein,detaining them as "Goondas" as per Section 2 (f) of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Prevention of Dangerous Activities of Bootleggers, Drug Offenders,Goondas, Immoral Traffic Offenders, Forest Offenders and Slum-GrabbersAct, 1982 (Tamil Nadu Act 14 of 1982), praying to quash the detentionorder and set each one of the detenu at liberty.2. The detenus in all the cases are arrayed as accused in the casein Cr.No.759 of 2008 on the file of the F.5, Choolaimedu Police Station,registered under Section 302 and other provisions of IPC, apart from theground case. Against the petitioner / detenu in H.C.P.No.1444 of 2008,one more case in Cr.No.439 of 2002 on the file of the E.4, MadhuravoyalPolice Station under Section 302 and other sections of IPC is alsopending as adverse case.3. As per the ground case, on 26.06.2008, when the Sub Inspector ofPolice attached to F.5 Choolaimedu Police Station was proceeding withhis police party on the 100 feet road, searching the accused personsinvolved in the case in Cr.No.759 of 2008, on reliable information,Muthu @ Dimikki Muthu, detenu in H.C.P.No.1444 of 2008, Prathap, detenuin H.C.P.No.1445 of 2008, Senthil @ Senthilkumar, detenu inH.C.P.No.1439 of 2008, Selvam @ Periya Selvam, detenu in H.C.P.No. 1446of 2008 , Jayaraj @ Kullan, detenu in H.C.P.No.1443 of 2008 andRadhakrishnan @ Dayalan, detenu in H.C.P.No.1441 of 2008 were standingin front of the TASMAC shop within the jurisdiction of the ChoolaimeduPolice Station. Having noticed the same, police party surrounded them.While so, the detenu, Muthu @ Dimikki Muthu who was armed with pattaknife threatened the police party by uttering "nghyP!; ghLgr';fsh v';fisgpof;f te;jhy; new;W ele;j bfhiy khjphpna ,';nfa[k; bfhiy tpGk;lh. khpahijahfXo tpL';flh" and the other detenus picked up stones from the road sideand pelted the same against the police party and the public, wherebydamaged the public property, due to which, the public who were at thespot on noticing the attack ran out of the place due to fear and dangerto their lives and properties. 4. All the detenus herein created terror and panic in the minds ofthe public, at the spot. Muthu @ Dimikki Muthu by uttering, "ehd;Vw;fdnt ,uz;L bfhiy bra;jtd;. vt;tst[ ijhpak; ,Ue;jh v';fisna gpof;ftUt. caph; nky; cdf;F Mir ,y;iyah " rushed to stab Gr.I PoliceConstable 16586 Thiru.Ebenazer over his chest, but he tactfully escapedfrom the attack. The knife fell over his left hand and caused bleedinginjury, however the police party surrounded and apprehended Muthu @Dimikki Muthu, Prathap, Senthil @ Senthilkumar, Selvam @ Periya Selvam,Jeyaraj @ Kullan and Radhakrishnan @ Dayalan at the spot. Later on, thepolice party retrieved the knives from them and they were taken to F.5Choolaimedu Police Station and the Special Report lodged by SubInspector, Inspector of Police, Law and Order, F.5, Choolaimedu PoliceStation and registered a case in Cr.No.761 of 2008 under Sections 147,148, 336, 332, 307 and 506 (ii) IPC. The detenus are accused in the said https://hcservices.ecourts.gov.in/hcservices/ ground case and the case property recovered from them was producedbefore the XVII Metropolitan Magistrate, Saidapet, Chennai, who remandedthem till 11.07.2008. 5. According to the Detaining Authority, the detenus are habituatedin committing crimes and they have acted in a manner prejudicial to themaintenance of the public order and as such, each one of the detenus isa "Goonda", as contemplated under Section 2 (f) of the Tamil Nadu Act 14of 1982, hence, on the materials placed before him, having subjectivesatisfaction, passed separate detention orders against each of thedetenus on 25.07.2008.6. Mr.B.Kumar, learned Senior Counsel appearing for the petitionerssubmitted that the detention orders have been passed by the DetainingAuthority in a routine and casual manner at the instance of the thirdrespondent, which is violative of Articles 14, 21 and 22 of theConstitution of India. The grounds of detention of the detenus have notbeen intimated to the respective family members of the detenus. Thoughthe detention order was passed on 25.07.2008, grounds were served on thedetenues only on 21.07.2008. According to the learned Senior Counsel,the alleged offence could be construed only as a law and order problemand not an act, prejudicial to the maintenance of the public order. Thepetitioners have stated that the order of detention is liable to bequashed, since the arrest report states that the accused were remandedand sent to Judicial custody on 26.06.2008, whereas the grounds ofdetention denotes that the accused were remanded and sent to Judicialcustody on 27.06.2008. The translated copy would reveal that the injurysustained by the said Ebenazer, Head Constable was only a scratchinjury, whereas the Accident Register mentions the injury as an incisedone. With the above grounds, he pleaded for allowing the Habeas CorpusPetitions and to set aside the impugned orders of detention.7. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutorsubmitted that it has been established that the detenus are habituatedin committing heinous crimes and their activities are prejudicial to themaintenance of public order. As per the adverse case, on 25.06.2008 atabout 15 hrs, the detenus / accused, formed themselves into an unlawfulassembly, armed with deadly weapons surrounded one Rajesh and committedhis brutal murder. On the complaint given by one Siva, an eye witness tothe occurrence, this case was registered against the detenus underSection 302 and other Sections of IPC. The case is under investigation.Muthu @ Dimikki Muthu, the detenu in H.C.P.No.1444 of 2008 had alreadyinvolved in one more similar case in Cr.No.439 of 2002 on the file ofthe E.4, Madhuravoyal Police Station, under Section 302 and othersections of IPC, for the alleged occurrence that had taken place on11.06.2008 at 10.15 hrs. Both are stated to be brutal murder cases.According to the learned Additional Public Prosecutor, the detentionorders have been passed as per law and as such, legally sustainable. https://hcservices.ecourts.gov.in/hcservices/

8. As per the ground case, on 26.06.2008, when the Sub Inspector ofPolice attached to F.5 Choolaimedu Police Station was proceeding withhis police party on the 100 feet road, searching for the accused personsinvolved in the ground case in Cr.No.759 of 2008, on reliableinformation, to the said 100 feet road, Senthil Nagar at 7.30 hrs, allthe detenus who are accused in the said murder case were standing infront of a TASMAC shop. When the police party surrounded them and triedto apprehend them, detenu Muthu @ Dimikki Muthu, who was armed withpatta knife threatened the police party along with other detenus. Muthu@ Dimikki Muthu attempted to attack Ebenezer, Gr.I Police Constable overhis chest by patta knife. However, he tactfully escaped from the attack,but received a bleeding injury on his left hand. The other detenuspicked up stones from the road side and hurled against the policeofficials and the public and subsequently, they were apprehended bypolice parties. The material objects, including the patta knife wererecovered from them under a mahazar. In support of the police case,Observation Mahazar, confession statement, 161 statements given byvarious witnesses, rough sketch prepared at the scene of crime and otherdocuments were prepared, as per procedure. After they were arrested,they were produced before the XVII Metropolitan Magistrate, Saidapet,Chennai, who remanded them to judicial custody.9. Mr.B.Kumar, learned Senior Counsel relied on the unreporteddecision of this Court made in H.C.P.No.539 of 2008, dated 30.09.2008,the referred case had been registered under the Prevention of ImmoralTraffic Act and the vital contradiction regarding the alleged time ofoccurrence, non-production of co-accused involved in the case registeredunder Section 8 (b) of the Prevention of Immoral Traffic Act before theJudicial Magistrate, either for remand or to any home, run by the State,created serious suspicion. In the instant case, the supporting materialsplaced before the Detaining Authority expose the gravity of the offenceand the compelling necessity to invoke Tamil Nadu Act 14 of 1982.Therefore, we are of the view that the unreported Judgment of thisCourt, referred to above, is not applicable to the facts andcircumstances of this case.10. The Detaining Authority, considering the materials placedbefore him, having satisfied has passed the order of detention, dated25.07.2008. The Detaining Authority has specifically stated that thereis compelling necessity to detain each one of the detenus, in order toprevent them from indulging in such further activities, which areprejudicial to the maintenance of the public order under the provisionsof Tamil Nadu Act 14 of 1982.11. It is seen from the impugned order that there is no delay inpassing the orders of detention. Similarly, copies of all relied ondocuments were furnished to the detenus, so as to provide an opportunityfor them make effective representation. The translated copies in thelanguage known to the detenus were also furnished to the detenus, https://hcservices.ecourts.gov.in/hcservices/ without causing unreasonable delay. As per the special report, it isseen that all the detenus were produced before the XVII MetropolitanMagistrate, Saidapet, Chennai on 11.07.2008 by video conferencing andthe remand has been extended till 25.07.2008. The detention order hasbeen passed only on 25.07.2008 and therefore, on the date of passing thedetention order, there was valid remand order against the detenus. Weare of the considered view that the alleged trivial contradictions donot vitiate the detention order, as the offence is serious in nature andhas been prejudicial to the maintenance of public order.12. The Hon'ble Supreme Court has ruled in the decision, State ofMaharashtra vs. Bhaurao Punjabrao Gawande, reported in 2008 (2) SCC(Cri) 128, that subjective satisfaction, being a condition precedent forthe exercise of the power of preventive detention conferred on theexecutive, the court can always examine whether the requisitesatisfaction is arrived at by the authority; it is not, the conditionprecedent to the exercise of the power would not be fulfilled and theexercise of the power would be bad. However, the court cannot go intocorrectness or otherwise of the facts stated or allegations levelled inthe grounds in support of detention. The Hon'ble Apex Court has giventhe following Grounds of challenge, relating to detention orders :"An order of detention can be challenged on certaingrounds, such as, the order is not passed by thecompetent authority; condition precedent for theexercise of power does not exist; subjectivesatisfaction arrived at by the detaining authorityis irrational; the order is mala fide; there is non-application of mind on the part of the detainingauthority in passing the order; the grounds are, orone of the grounds is, vague, indefinite,irrelevant, extraneous, non-existent or stale; theorder is belated; the person against whom an orderis passed is already in jail; the order is punitivein nature; the order is not approved by the State /Central Government as required by law; failure torefer the case of the detenu to the Boardconstituted under the statute; the order was quashed/ revoked and again a fresh order of detention wasmade without new facts, etc."13. The Hon'ble Apex Court in the decision, Union of India vs. RanuBhandari, reported in 2008 (6) SCC 601, having relied on its variousearlier decisions regarding the compliance of Article 22 (5) of theConstitution held that although the State is empowered to issue ordersof preventive detention, since the liberty of an individual was inquestion, such power should be exercised by the Detaining Authority onconsideration of relevant material, both against and in favour of theindividual concerned, to arrive at a just conclusion that his detentionwas necessary in the interest of the pubic and to prevent him from https://hcservices.ecourts.gov.in/hcservices/ continuing to indulge in activities which are against the publicinterest and the interest of the State.14. In the instant case, copies of all the relied on documents weresupplied to the detenus. The materials placed before the DetainingAuthority would show that two brutal murder cases are pending againstMuthu @ Dimikki Muthu, detenu in H.C.P.No.1444 of 2008 and one suchmurder case is pending against the other detenus. On a perusal of theimpugned orders, we are of the considered view that the DetainingAuthority has considered all the relevant materials placed before himand held that the activities of the detenus were prejudicial to themaintenance of the public order and that there was a compellingnecessity to detain them under Tamil Nadu Act 14 of 1982. In the lightof the decisions referred to above, we are of the view that there is noprocedural violation in the impugned orders passed by the DetainingAuthority, so as to warrant the interference of this court and we are ofthe considered view that the alleged grounds raised by the detenus donot vitiate the detention order, so as to quash the same.15. As there are prima facie materials placed before the DetainingAuthority to have subjective satisfaction and the detaining authority,considering the same has held that the activities of the detenus areprejudicial to the maintenance of public order and there was compellingnecessity to detain them under Tamil Nadu Act 14 of 1982. All themandatory provisions have been complied with by the authoritiesconcerned. Hence, we are of the view that all these Habeas CorpusPetitions fail and as such are liable to be dismissed.16. In the result, the Habeas Corpus Petitions in H.C.P.Nos. 1439,1441, 1443, 1444, 1445 and 1446 of 2008 are dismissed. No costs. TsvnSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government Department of Prohibition and Excise, Secretariat, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/

2. The Commissioner of Police Greater Chennai, Officer of the Commissioner of Police Egmore, Chennai.3. The Inspector of Police F-5, Choolaimdeu Police Station, Chennai. 4. The Public Prosecutor, High Court of Madras, Chennai.5. The Inspector of Police, E4 Madhuravoil Police Station, Chennai KM(CO)SR/19.1.2009 Common Order in H.C.P.Nos.1439, 1441, 1443 1444, 1445 and 1446 of 2008