Kamala v. State by The Secretary to Government Home, Prohibition and Excise Department & Ors.

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.No.1565 of 2008 Kamala ...Petitionervs.1. State by The Secretary to Government Home, Prohibition and Excise Department, Fort St. George, Chennai – 600 009.2. The Commissioner of Police Greater Chennai, Egmore, Chennai – 600 008. ...RespondentsPetition filed under Article 226 of the Constitution of Indiato issue a Writ of Habeas Corpus, to call for the records pertainingto Memo No.244/BDFGISSV/2008, dated 08.08.2008 passed by the secondrespondent and quash the same and consequently, direct therespondents herein to produce the detenu by name Suresh @ KarukkaSuresh before this Court and set him at liberty.For Petitioner : Mr.T.K.Sampath for M/s. T.K.Sampath AssociatesFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E RS.TAMILVANAN, JThe Habeas Corpus Petition has been filed, challenging theorder of detention, dated 08.08.2008 passed by the second respondentherein, detaining the husband of the petitioner a "Goonda" as perSection 2 (f) of the Tamil Nadu Act 14 of 1982. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner is the wife of the detenu, Suresh @ KarukkaSuresh, who was arrested and detained under Tamil Nadu Act 14 of1982. As per the impugned order, five adverse cases have beenregistered against the detenu, apart from the ground case,registered on 30.07.2008.3. As per the ground case, on 30.07.2008, at about 8.45 p.m,the detenu had gone to the canteen run by the defacto complainant,Subbaya at No.20, Thayar Sahbi Street, Ellis Road, Chennai – 2 andafter taking tiffin, he did not pay money for the tiffin he ate.While the defacto complainant demanded money payable for the tiffin,the detenu threatened him, then strangulated the neck of the defactocomplainant and also voluntarily took away cash of Rs.200/- and acellphone from his shirt pocket. Based on the complaint given by thedefacto complainant, a case in Cr.No.555 of 2008, on the file of theD1 Triplicane Police Station under Sections 341, 323, 427, 392, 397and 506 (ii) IPC was registered. As per the detention order, it isstated that the detenu, during the occurrence brandishing a knifeand threatened the defacto complainant and the public. Policepersonnel, who were on beat duty have noticed the occurrence andsurrounded the detenu at the spot with the help of public availablethere and also retrieved the knife from the detenu. Then, he wasproduced before the XIII Metropolitan Magistrate, Saidapet, Chennaiand was remanded to prison till 12.08.2008. 4. The Detaining Authority, considering the materials placedbefore him, having satisfied that the detenu is habituallycommitting crimes and also acted in a manner prejudicial to themaintenance of the public order, branded him as a "Goonda", ascontemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, andaccordingly, passed the impugned detention order, which is underchallenge before this Court, by way of this Habeas Corpus Petition.5. Mr.T.K.Sampath, learned counsel appearing for the petitionersubmitted that the case has been foisted against the detenu for thepurpose of detaining him under Act 14 of 1982 and the learnedcounsel attacked the impugned order on various grounds.6. The learned counsel for the petitioner drew the attention ofthis court to the FIR, wherein the time of occurrence is stated as20 hrs on 30.07.2008 and the FIR was registered at 20.45 hrs on thesaid date. But in the detention order, the time of occurrence isstated as 20.45 hrs, however, the same was not considered by theDetaining Authority, which amounts to non-application of mind inpassing the detention order. According to him, the pre-detentionrepresentation made by the petitioner, wife of the detenu, was notconsidered till date, though it is a Constitutional mandate. Thelearned counsel appearing for the petitioner further submits thatthough the detention order was passed on 08.08.2008, the grounds ofdetention and the copies of the materials relied on by the Detaining https://hcservices.ecourts.gov.in/hcservices/ Authority were supplied to the detenu only on 14.08.2008, after theperiod of 5 days and in fact, it was served only after a lapse ofseven days.7. As per the seizure mahazar available at page number 82 ofthe booklet, only an amount of Rs.200/- was said to have beenrecovered from the detenu Suresh @ Karukka Suresh and otherincriminating material was said to have been recovered from himunder the seizure mahazar. But in the statement given under Section161 of Cr.P.C, the defacto complainant has stated that during theoccurrence, the detenu had strangulated him and taken his cellphoneand Rs.200/- from his shirt pocket and also threatened him andothers by showing a knife. But, as contended by the learned counselappearing for the petitioner, neither the alleged cellphone said tohave been taken from the defacto complainant by the detenu, nor theknife, said to have been used by him to threaten the public wererecovered from him, though as per the prosecution case, the detenuand others were caught red handed by the police officials, who wereon beat duty, with the help of the public. As per the arrest memo,the detenu was arrested at 21 hrs at D1 Police Station on30.07.2008, but as per the seizure mahazar, the amount of Rs.200/-alone was recovered from the detenu on 30/31.07.2008 at 01.10 hrs.8. As per the prosecution case and the available materials, thedetenu was apprehended at the scene of occurrence itself. There isno acceptable reason from the prosecution, as to why the allegedknife and the cellphone, said to have been taken away by him fromthe defacto-complainant were not recovered from the detenu at thescene of crime or afterwards. Though, as per the arrest memo, he wasbrought to the police station and arrested at 21 hrs, even the cashof Rs.200/- was not recovered from him, either at the scene of crimeor when he was brought to the police station, at 21 hrs on30.07.2008. But strangely, the amount of Rs.200/- alone was said tohave been recovered at 01.10 hrs on 30/31.07.2008. Further, he wasproduced for remand before the XIII Metropolitan Magistrate,Saidapet, Chennai only on 31.07.2008 at 5.45 p.m and for theinordinate delay, there is no satisfactory explanation from therespondents.9. Mr.N.R.Elango, learned Additional Public Prosecutorsubmitted that the impugned order was passed by the DetainingAuthority, only after having arrived at a subjective satisfaction.However, there is no satisfactory explanation for various vitalcontradictions, as discussed by us above in this order, from theprosecution.10. The learned counsel appearing for the petitioner, insupport of his contentions, relied on the decision in P.Kulanthaivelvs. The District Collector and District Magistrate, Villupuram &another, reported in 2008-2-L.W (Crl) 921, wherein it has been held https://hcservices.ecourts.gov.in/hcservices/ that though the report given by the sponsoring authority refers onlyto two cases; but the detaining authority has referred to fiveadverse cases in the detention order, which would clearly cast adoubt as to how these particulars in respect of the material recordswere furnished, which would indicate that the detaining authorityhas not scrutinised the records properly and has passed the ordermechanically. The Division Bench of this Court held that the saidfailure on the part of the detaining authority would clearly beindicative of non-application of mind.11. The Hon'ble Apex Court in R.Kalavathi vs. State of T.N. andothers, reported in 2006 (3) SCC (Cri) 11, has held that in order toattract an action in terms of Section 3(1) of the Tamil Nadu Act 14of 1982, the detenu must be one, who is a "goonda" as defined underSection 2(f) of the Act. It has been made clear that though in otherpreventive detention laws, even a single act which has thepropensity of affecting the tempo of life and public tranquillity,that would be sufficient for detention, being an act prejudicial tothe maintenance of public order and for the purpose of the Act, thedetenu has to be a "goonda" as defined under Section 2(f) of the Actand accordingly a "goonda" means a person, who habitually commitsoffences.12. In the decision, Tushar Thakker vs. Union of India,reported in AIR 1981 SC 436, the Hon'ble Supreme Court has held thatthe detenu has a right under Article 22(5) of the Constitution, tobe furnished with copies of all the relied upon documents /materials for passing order of detention, within reasonable time.Unreasonable delay is prejudicial to the detenu's right to make aneffective representation and as such, inordinate delay in supply ofcopies of the relied on documents / materials to the detenu isviolative of the constitutional right, guaranteed under Article 22(5) of the Constitution of India. Similarly right of intimation toany family member or friend about the detention, without causing anydelay, is also the duty of the authority in safeguarding the rightof the detenu, as guaranteed under the Constitution.13. It has been clearly ruled by the Hon'ble Apex Court inA.Shanthi vs. Govt. of T.N., reported in 2006 (9) SCC 711, that inorder to pass the order of detention, subjective satisfaction of thedetaining authority is a prerequisite. If the relevant materialsplaced before the detaining authority are not properly considered,to have subjective satisfaction, it would be construed as non-application of mind, which vitiates the detention order.14. Had the Detaining Authority considered all the materialsproperty to arrive at subjective satisfaction, the vitalcontradictions referred to above could have created serious doubt inhis mind about the alleged occurrence and the non-consideration ofthe same should be construed only as non-application of mind by the https://hcservices.ecourts.gov.in/hcservices/ Detaining Authority. In the instant case, in the FIR relating to theground case, though the time of occurrence is stated as 8. p.m andthe FIR was said to be registered at 8.45 p.m, the DetainingAuthority has stated that the occurrence had taken place at8.45 p.m. As per the averments of the FIR and the statement of thedefacto complainant, the detenu had taken away with him thecellphone and Rs.200/- from the shirt pocket of the defactocomplainant and also threatened the detenu and the public by showinga knife and the detenu and others were apprehended at the scene ofcrime by the police party. However, the allegedly taken cellphonefrom the shirt pocket of the defacto complainant and the knife, saidto have been used by the detenu were not recovered from him. But,the same were recovered only from the co-accused, as per thematerials available on record. As contended by the learned counselfor the petitioner, the vital contradictions cuts the root of thecase. Though, as per the arrest memo, the detenu was arrested at 9p.m, as per the seizure mahazar available at page number 82, only anamount of Rs.200/- was recovered from the detenu at 01.10 hrs on30/31.07.2008, for the reasons best known to the sponsoringauthority and he was also not produced before the JudicialMagistrate, within a reasonable time, though the Magistrate Court issituated in a nearby place. The Detaining Authority has not verifiedall these vital contradictions, before passing the impugneddetention order.15. Considering the vital contradictions as discussed above, weare of the view that the impugned order has to be quashed, on theground of non-application of mind of the detaining authority, inpassing the detention order, hence, the same is liable to be setaside. 16. In the result, the Habeas Corpus Petition is allowed andthe detention order is set aside and the detenu is directed to beset at liberty forthwith, unless he is required in connection withany other case. sd/-Asst.Registrar/true copy/Sub Asst.RegistrartsvnTo1. THE SECRETARY TO GOVERNMENT GOVERNMENT OF TAMIL NADU, HOME, PROHIBITION AND EXCISE DEPARTMENT, FORT ST.GEORGE, CHENNAI-9. https://hcservices.ecourts.gov.in/hcservices/

2. THE COMMISSIONER OF POLICE GREATER CHENNAI, EGMORE, CHENNAI-8.3. THE JOINT SECRETARY TO GOVT. PUBLIC (LAW & ORDER), FORT ST.GEORGE, CHENNAI-9.4. THE SUPERINTENDENT CENTRAL PRISON, PUZHAL, CHENNAI-66.5. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. Order in H.C.P.No.1565 of 2008 VSV (CO)GSK 23.01.2009.