Tmt.Kasthuri v. The District Collector and District Magistrate, Kancheepuram, Kancheepuram District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 06.01.2009 Coram :The Hon’ble Mr. Justice ELIPE DHARMA RAOandThe Hon’ble Mr. Justice S.TAMILVANANH.C.P.No.1652 of 2008 Tmt.Kasthuri… Petitionervs.1. The District Collector and District Magistrate, Kancheepuram, Kancheepuram District. 2. The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Chief Secretariat, Fort st. George, Chennai – 600 009.3. The Superintendent, Central Prison, Puzhal, Chennai... RespondentsPetition filed under Article 226 of the Constitution of India toissue a Writ of Habeas Corpus, to call for the records pertaining tothe detention order passed by the first respondent herein and made inB.D.F.G.I.S.S.V.No.68 of 2008 dated 15.09.2008, and to set aside thesame and to direct the third respondent to produce the body of thedetenu Thiru Kora Murugan @ Murugan, now confined in Central Prison,Puzhal, Chennai and set him at liberty.For Petitioner : Mr.Ganesh Rajan for T.S.SrinivasanFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E RS.TAMILVANAN, J.This petition has been filed against the order of detention,dated 15.09.2008 made in B.D.F.G.I.S.S.V.No.68 of 2008 passed by theDistrict Collector/detaining authority, Kancheepuram under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of https://hcservices.ecourts.gov.in/hcservices/ Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders,Forest Offenders and Slum-Grabbers Act, 1982 (Tamil Nadu Act 14 of1982) and to set the detenu at liberty.2. The petitioner who is the mother of the detenu has challengedthe order of detention on various grounds. As per the impugneddetention order dated 15.092008, it is seen that there is one adversecase registered against the detenu in Crime No.129 of 2008 on thefile of the Otteri Police Station under Sections 147, 148, 341 and302 IPC. As per the ground case on 02.08.2008 at about 14.00hrs.When the defacto complainant Muthu along with his friend was walkingon Vandalur lake bund towards Vandallur, the detenu, who came there,threatened the defacto complainant at the point of knife and tookaway Rs.270/- from his shirt pocket and also assaulted him by Aruval,which was averted by immediately the complainant by bending and thusescaped from the attack. It is further alleged that associates ofthe detenu hit with the wooden logs on the road and showed theiraggressions and thereby committed offence. Subsequently, the defactocomplainant went to Otteri Police Station and lodged a complaint atabout 16.00hrs., on the said date. Based on the complaint, a case inOtteri Police Station Crime No.130 of 2008, under Sections 147, 148,294(b), 397, 307 IPC, was registered against the detenu and otheraccused.3.Mr.Ganesh Rajan, learned counsel appearing for the petitionerattacked the detention order, on the ground that it is an orderpassed on the foisted case. According to the petitioner, the orderof detention was not intimated to the family members of the detenu.It is further stated by the petitioner that on 03.8.2008, when herson, the detenu, was in her house along with other family members,police personnel attached to Otteri Police Station came there andforcibly took him to police station. Then the case was foistedagainst him. 4.Learned counsel appearing for the petitioner submitted thatthe detention order is liable to be quashed on the ground of non-application of mind by the detaining authority and for non-complianceof the guidelines of the Apex Court. 5.It is seen from the arrest report prepared under Section 62 ofthe Cr.P.C. available at Page No.113 B of the typed set that thedetenu was arrested on 03.08.2008 at 15.00hrs., near the pathway ofVandallur lake in connection with Crime No.129 of 2008. But as perthe arrest report prepared under Section 62 Cr.P.C., available atPage No.175 of the typed set supplied, the detenu was arrested on03.08.2008 at 15.00hrs., near Vandallur Railway gate in connectionwith Crime No.130 of 2008. As contended by the learned counselappearing for the petitioner, the detenu could not have beenarrested on the same day, at the same time in two different places,as stated by the respondent in the aforesaid two documents that are https://hcservices.ecourts.gov.in/hcservices/ available in the typed set supplied to the detenu one at Page No.113B and another at Page No.175. 6. There is no acceptable reason from the learned AdditionalPublic Prosecutor for the vital contradiction with regard to theplace of arrest of the detenu, though the same Inspector of Police,Guduvancherri Police Station is said to have prepared both the arrestreports at the same time and place. Had the detenu been arrested atthe same place, on the same date, at the same time, as alleged by therespondent, the documents available at Page No.113 B and 175, shouldstate only the same place, as the place of arrest.7. On considering the vital contradiction with regard to theplace of arrest of the detenu, on the same date and the time indifferent places, the plea of the petitioner that her son, the detenuwas taken by the police officials of Otteri Police Station on03.08.2008, cannot be ignored, since the vital self contradiction ofthe relied on documents cut the root of the ground case. 8. The Hon'ble Supreme Court in D.K.Basu vs. State of W.B,reported in 1997 SCC (Cri) 92 has categorically given guidelines tobe followed in the cases relating to preventive detention, which readas follows :"We, therefore, consider it appropriate to issuethe following requirements to be followed in allcases of arrest or detention till legal provisionsare made in that behalf as preventive measures :(1) The police personnel carrying out the arrestand handling the interrogation of the arresteeshould bear accurate, visible and clearidentification and name tags with theirdesignations. The particulars of all such policepersonnel who handle interrogation of the arresteemust be recorded in a register.(2) That the police officer carrying out thearrest of the arrestee shall prepare a memo ofarrest at the time of arrest and such memo shallbe attested by at least one witness, who mayeither be a member of the family of the arresteeor a respectable person of the locality from wherethe arrest is made. It shall be countersigned bythe arrestee and shall contain the time and dateof arrest.(3) A person who has been arrested or detained andis being held in custody in a police station or https://hcservices.ecourts.gov.in/hcservices/ interrogation centre or other lock-up, shall beentitled to have one friend or relative or otherperson known to him or having interest in hiswelfare being informed, as soon as practicable,that he has been arrested and is being detained atthe particular place, unless the attesting witnessof the memo of arrest is himself such a friend ora relative of the arrestee.(4) The time,place of arrest and venue of custodyof an arrestee must be notified by the policewhere the next friend or relative of the arresteelives outside the district or town through theLegal Aid Organisation in the District and thepolice station of the area concernedtelegraphically within a period of 8 to 12 hoursafter the arrest.(5) The person arrested must be made aware of thisright to have someone informed of his arrest ordetention as soon as he is put under arrest or isdetained.(6) An entry must be made in the diary at theplace of detention regarding the arrest of theperson which shall also disclose the name of thenext friend of the person who has been informed ofthe arrest and the names and particulars of thepolice officials in whose custody the arrestee is.(7) The arrestee should, where he so requests, bealso examined at the time of his arrest and majorand minor injuries, if any present on his / herbody, must be recorded at that time. The"Inspection Memo" must be signed both by thearrestee and the police officer effecting thearrest and its copy provided to the arrestee.(8) The arrestee should be subjected to medicalexamination by a trained doctor every 48 hoursduring his detention in custody by a doctor on thepanel of approved doctors appointed by Director,Heal Services of the State or Union Territoryconcerned. Director, Health Services shouldprepare such a panel for all tehsils and districtsas well.(9) Copies of all the documents including the memoof arrest, referred to above, should be sent to https://hcservices.ecourts.gov.in/hcservices/ the Illaqa Magistrate for his record.(10) The arrestee may be permitted to meet hislawyer during interrogation, though not throughoutthe interrogation.(11) A police control room should be provided atall district and State headquarters, whereinformation regarding the arrest and the place ofcustody of the arrestee shall be communicated bythe officer causing the arrest, within 12 hours ofeffecting the arrest and at the police controlroom it should be displayed on a conspicuousnotice board."9. As per various decisions of the Hon'ble Apex Court, thefollowing factors are considered as violation in preventive DetentionCases :a) Non-intimation of the detention order to any of the familymembers or friends within a reasonable time.b) Delay in considering the representation made by the detenu orany other person interested, on behalf of the detenu.c) Non-supply of copies of material documents relied on by thedetaining authority.d) Furnishing illegible copies of documents, so as to preventdetenu from making effective representation as contemplated under theAct.e) Non-furnishing of copies translated in the language known tothe detenu for making effective representation.f) Non application of mind by detaining authority in havingsubjective satisfaction while passing the order.10. The aforesaid guidelines of the Hon'ble Supreme Court shouldbe scrupulously followed by the detaining authorities, in order tosafeguard the personal liberty of any individual, as against illegaldetention, in view of the fundamental right guaranteed for life andpersonal liberty under Article 21 of the Constitution. 11.We are of the view that non-consideration of the vitalcontradiction, with regard to the place of arrest available at PageNos.113 B and 175 of the Booklet supplied to the detenu is nothingbut non-application of mind in passing the detention order, whichvitiates the detention order. It is not in dispute that a relied ondocument available at Page Nos.69 to 71 of the typed set is only in https://hcservices.ecourts.gov.in/hcservices/ English. However, inspite of the request made by the detenu,translated copy of the same in Tamil, language known to the detenuthe same was not furnished to him, so as to enable the detenu to makeeffective representation.12.Learned counsel appearing for the petitioner also drew theattention of this Court to Page No.118 A, of the Booklet, ArrestReport, a relied on document, wherein, a lot of unauthorisedcorrections and over writings have been made. Even the date, timeand other particulars therein have been arrested in an impropermanner. If a document is not legible, a typed clean copy should befurnished for perusal. It is seen that after making unauthorisedcorrections and over writings, Xerox Copy of the document has beenprepared. We are of the view that the unhealthy practice of makingunauthorised corrections must be deprecated. 13. Hence, for all the above reasons, we are of the consideredview that the detention order is liable to be set aside, on theground of non-application of mind by the detaining authority and non-compliance of the guidelines of the Hon'ble Apex Court, in variousdecisions. 14. In the result, the Habeas Corpus Petition is allowed and thedetention order dated 15.09.2008 passed by the first respondent isset aside. The detenu is directed to be set at liberty forthwith,unless he is required in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSmiTo1. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KANCHEEPURAM, KANCHEEPURAM DISTRICT. 2. THE SECRETARY TO GOVERNMENT, STATE OF TAMIL NADU, HOME, PROHIBITION AND EXCISE DEPARTMENT, FORT ST. GEORGE, CHENNAI – 600 009.3. THE SUPERINTENDENT, CENTRAL PRISON, PUZHAL, CHENNAI.4. THE JOINT SECRETARTY TO GOVT PUBLIC LAW AND ORDER FORT ST.GOERGE,CHENNAI - 9 https://hcservices.ecourts.gov.in/hcservices/

5. THE PUBLIC PROSECUTOR HIGH COURT, MADRAS1 cc To Mr.Ganesh Rajan, Advocate, SR.140H.C.P.No.1652 of 2008 VSV(CO)SRA(28/01/2009)