Smt. SugunaW/o. Thamil Selvam v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07-08-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MRS. JUSTICE R. BANUMATHIHABEAS CORPUS PETITION NO.212 OF 2007Smt. SugunaW/o. Thamil Selvam.. PetitionerVs.1. State of Tamil Nadu, Rep. by its Secretary to Government, Prohibition & Excise Department, Fort St. George, Secretariat, Chennai 600 009.2. The District Collector & District Magistrate, Tiruvallur District, Tiruvallur.3. The Inspector of Police, B7,Vellavedu Police Station, Tiruvallur District... RespondentsPetition filed under Article 226 of the Constitution of India for theissuance of writ of Habeas Corpus to call for the records of the secondrespondent in Memo No.10/BDFGISSV/2006 dated 20.11.2006 and quash the samean thereby direct the respondents to produce the body of the detenu,namely, Naveen, S/o. Thamilselvam, now detained at Central Prison-II,Puzhal, Chennai, before this Court and set him at liberty.For Petitioner: Mr.V. ParthibanFor Respondents: Mr.M. Babu Muthu Meeran Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ O R D E RP.K. MISRA, JMother of the detenu has filed this Habeas Corpus Petitionchallenging the order of detention dated 20.1.2006 passed by the DistrictMagistrate and District Collector, Tiruvallur District under Section 3(1)of the Tamil 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) relating to Thiru.Naveen on the allegation that he is a Goonda andit is necessary to prevent him from acting in any manner prejudicial tothe maintenance of public order.2. The detenu came to the adverse notice of the police in B7Vellavedu Police Station Cr.No.299/2006 registered under Sections 323,324, 506(ii), 307 IPC and B7 Vellavedu Police Station Cr.No.300/2006registered under Sections 363, 302, 397, 120(b) IPC. Both the cases wereallegedly committed on the same day i.e., 19.8.2006 and were underinvestigation. The ground case, on the basis of which the detention orderis subsequently passed, is alleged to have occurred on 21.8.2006, whereinit is alleged that offence under Section 392 IPC has been committed. Itis alleged that on the said date at about 6.00 P.M., while the complainantwas proceeding to purchase groceries, an unknown person came near to himand put a knife in his neck and shouted that he was Utukottai Naveen andwas everybody afraid of him and he was the person who murderedThirumazhisai Prakash. He further stated that at that time one person,who was coming on a bicycle, on seeing the incident left the bicycle andran away and four other persons who were also coming towards thecomplainant Prabhu ran away because of panic. Complaint was made on22.8.2006 morning, on the basis of which Cr.No.301 of 2006 under Section392 IPC has been registered. During the course of investigation, thedetenu was found in the office of the Village Administrative Officer andwas arrested on 22.8.2006 around 11.00 AM and arrest memo was prepared,wherein signature of the detenu and the signature of the witnesses wereobtained. In presence of the Village Administrative Officer, the detenuconfessed about his involvement in the ground case as well as previouscases and he was arrested and produced before the Judicial Magistrate,Poonamallee on 22.8.2006 and was remanded to judicial custody for 15 days.Subsequently he was subjected to police custody by the order passed by theJudicial Magistrate, Poonamallee. His remand period expired on 4.9.2006and it was extended from time to time and he was in remand till23.11.2006. It has been further indicated in the grounds of detention :- https://hcservices.ecourts.gov.in/hcservices/ "5(i) I am aware that Naveen is in remand and there is realpossibility that he may be enlarged on bail for the offence u/s392 of IPC by filing bail application in the court. I am alsoaware that in similar cases, accused are enlarged on bail by thesame Court or by the Superior Court after lapse of some time, andit is very likely that he may come out on bail, he will indulgein such further activities in future as well which will beprejudicial to the maintenance of public order and further therecourse to normal criminal law would not have the desired effectof effectively preventing him from indulging in such activitieswhich are prejudicial to the maintenance of public order. On thematerials placed before me, I am satisfied that the said Naveenis a "Goonda" and that there is a compelling necessity to detainhim in order to prevent him from indulging in such acts in futurewhich are prejudicial to the maintenance of public order underprovisions of the Tamil Nadu Act 14 of 1982.5(ii) I am aware that Naveen has been remanded to JudicialCustody by the Judicial Magistrate II, Poonamallee on 22.8.2006.He is a remand prisoner, lodged in the Central Prison, Chennai inVellavedu police Station Cr.No.301/2006. His remand period isupto 4.9.2006, 18.9.2006, 29.9.2006, 12.10.2006, 26.10.2006,9.11.2006. It has been extended upto 23.11.2006. But there is areal possibility of bail acceptance and being enlarged on bail bythe Court. I am also aware that in cases, bail is granted afterlapse of some time and if Naveen is then let to remain at large,he is likely to indulge in such further prejudicial activities infuture as well and therefore there is compelling necessity topass this order of detention with a view to preventing him fromindulging in such prejudicial activities in future."3. The order of detention is being challenged primarily on thefollowing grounds :-(1) There has been delay in disposal of representation andcommunication of the result.(2) There was no material in support of the conclusion that there wasreal possibility of the detenu being coming out on bail and such inferenceis merely the ipse dixit of the detaining authority.(3) The order of detention was passed after three months from thealleged incident and there was no livelink between the alleged incidentand the order of detention.(4) The alleged incident dated 21.8.2006 in connection with whichcase under Section 392 IPC has been registered related to the question ofmere law and order and not public order and, therefore, there is nojustification for passing an order of detention, which can be passed only https://hcservices.ecourts.gov.in/hcservices/ with a view to prevent a person from acting in a manner prejudicial to themaintenance of public order and not otherwise.(5) The contradictions found in the grounds of detention and thecounter affidavit filed by the detaining authority reveals non-applicationof mind on the part of the detaining authority. Apart from the above contentions, learned counsel has also contendedthat there has been several inaccuracies in the translation furnished tothe detenu and false cases have been foisted only with a view to detainthe detenu.4. So far as the first contention is concerned, from the chartfurnished by the Addl. Public Prosecutor, we find that representationreceived on 4.12.2006 was rejected on 21.12.2006. The rejection letterwas prepared on 26.12.2006 and sent to the detenu on the next day andserved on the detenu on 28.12.2006. In the above context, learned counselfor the petitioner has submitted that there has been unexplained delaybetween the date on which remarks were called for i.e., 5.12.2006 andremarks were received i.e., 18.12.2006.It is not seriously disputed that remarks were called for by thepost. In fact from the chart it appears that representation was receivedfrom the Collectorate on 11.12.2006 and thereafter the representation wassent to the Government on 14.12.2006, which would have been obviouslyagain by post. In such circumstances, it cannot be said that there hasbeen undue and unexplained delay between the date on which remarks werecalled for and the date on which remarks were received.5. Next contention is relating to preparation of rejectionletter. According to the petitioner, when the Minister rejected therepresentation on 21.12.2006, there is no reason as to why about 5 daystime was taken to prepare the rejection letter. Even though prima facie such a contention appears to be attractive,on deeper scrutiny and on verification, there doesn't appears to beunreasonable delay. 21.12.2006 was a Thursday and the next working dayavailable was 22.12.2006, which was a Friday. 23rd, 24th being Saturday andSunday and similarly 25th December being holiday for Christmas, rejectionletter was prepared on the next available working day i.e., 26.12.2006.In such peculiar circumstances, we are unable to accept the contention ofthe petitioner that there has been unexplained and unreasonable delay indealing with the representation.6. Learned counsel for the petitioner has contended that thedetaining authority without any material on record came to the conclusionthat there was real possibility of the detenu being coming out on bail andsince such conclusion was vitiated, the order of detention should bequashed. https://hcservices.ecourts.gov.in/hcservices/

7. We have already extracted the relevant portion relating tosuch conclusion. From the narration in para 5, it is apparent that thedetaining authority came to the conclusion that there was possibility ofthe detenu being released on bail after lapse of sometime. It is no doubttrue that no bail application had been filed. However, merely becausethere is no pendency of bail application at the time when the order ofdetention is passed, it cannot be said that the detaining authority isprecluded from coming to the conclusion that there is real possibility ofthe detenu being released on bail. It is well known that possibility ofgrant of bail depends on several factors such as nature of allegation,stage of investigation or even non-completion of investigation during thestipulated time. Where the allegations against a particular person arecomparatively less serious, such as involvement in offence of less seriousnature, possibility of being enlarged on bail always looms large, even ifthe investigation is not completed. On the other hand, when theallegations are very serious, one may reasonably conclude that beforecompletion of the investigation, possibility of being enlarged on bail islittle remote. It is no doubt true that in the present case one of theadverse cases was the alleged commission of offence under Section 302 IPCand, therefore, in view of seriousness of nature of allegation, ordinarilyone would not expect grant of bail till completion of investigation. 8. In the present case, it is apparent that the detenu was takeninto custody on 22.8.2006 and investigation was still in progress.Therefore, the period of 90 days was on verge of being completed and,thus, there was imminent possibility of the detenu being released onstatutory bail in view of the provisions contained in 167(2) proviso ofthe Code of Criminal Procedure. Keeping in view the aforesaid admittedbackground, it is obvious that subjective satisfaction of the detainingauthority that there is real possibility of the detenu being released onbail is based on materials on record and cannot be characterised as mereipse dixit of the detaining authority. This contention is thereforeliable to be rejected.9. Next contention of the petitioner is to the effect that sincethe alleged ground case occurrence has taken about three months back,there is no live-link between such incident and the order of detentionand, therefore, there was no necessity of passing any order of detentionIn support of such contention, several decisions were brought to ournotice. Even though some of the decisions may prima facie support thecontention, we are unable to accept such contention. It has been laiddown in various decisions of the Supreme Court as well as this Court thatwhen a person is in custody, there may not be any justification forpassing an order of detention unless the detaining authority on thematerials on record comes to the conclusion that there is imminentpossibility of the detenu being released on bail. Rationale of suchdecisions is crystal clear. If a person is inside the prison, obviouslythere is no possibility of such person acting in a manner prejudicial tothe maintenance of public order. However, where there is imminent https://hcservices.ecourts.gov.in/hcservices/ possibility of such person being coming out on bail, obviously there maybe apprehension that such person may act in a manner prejudicial to themaintenance of public order after he is being released on bail. Since, inthe present case, the detenu was in prison, obviously the detainingauthority found that there was no necessity of passing any detention orderand only when there was imminent possibility of being released on bail,the necessity of passing of order of detention arose. The decisionsrelied upon by the petitioner cannot be understood to lay down a generalprinciple that in every case when there is some gap between the date ofthe incident or the date of the arrest and the subsequent date of passingthe order of detention, the subjective satisfaction regarding necessity todetain is vulnerable. Where the detenu is already released on bail andyet the detaining authority takes long time for passing the order ofdetention, it may be reasonably inferred that on the facts andcircumstances of the particular case that there is no live-link and,therefore, there was no necessity to pass the order of detention. Suchgeneral principle obviously would not apply in a case where the detenu isinside the prison in connection with a case. Because in such a case therequirement for passing a detention order arise only when the detainingauthority on materials on record comes to the conclusion that there isimminent possibility of being released on bail. Therefore, thissubmission is not acceptable.10. The other submission of the petitioner, to the effect thatthe alleged occurrence on the basis of which a case under Section 392 IPChas been registered related to the question of mere law and order and notpublic order however, stands on a stronger footing. It is obvious thatthe detaining authority based his conclusion on the basis of offence underSection 392 IPC allegedly committed on 21.8.2006. Topography of the placewhere such occurrence took place was available in the booklet furnished.Prima facie it does not indicate that occurrence took place in a busypublic place nor there is anything to show that it took in the presence ofseveral persons likely to cause panic among the general public. Themanner in which occurrence is said to have taken place indicates that itis a case of "law and order" situation rather than "public order"situation. Keeping in view the setting and the manner in which thealleged occurrence was committed, we are of the considered opinion thatthe incident related to a law and order situation rather than a publicorder situation and the subjective satisfaction of the detaining authorityis vitiated so far as this aspect is concerned.11. It is no doubt true an adverse case was registered underSection 302 IPC, but the manner in which the offence has been committed isnot available on record and moreover the detaining authority has reliedupon such incident only for the purpose of coming to the conclusion thatthe detenu is a Goonda and not for the purpose of coming to the conclusionthat such action was detrimental to the maintenance of public order. Inview of the above conclusion, the detention order is liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/

12. A reading of the counter affidavit indicates as if accordingto the District Collector the occurrence took place in the morning hours.In para-D of the counter affidavit, it is indicated that crimes werecommitted on 19.8.06 & 22.8.06, whereas the FIR as well as the grounds ofdetention indicate as if the ground case took place on 21.8.06. Theassertion in para-E of the counter affidavit indicates that detainingauthority has apparently accepted the report furnished by the Inspector ofPolice, wherein the Inspector of Police has stated that Naveen habituallyinvolved in theft, kidnapping, robbery, dacoity and involved in murder.As already noted, from para-D of the counter affidavit it is apparent thatdetention order is passed on the basis of ground case alone. The groundcase referred to is Section 392 IPC, which is apparent from a reading ofpargraphs 3 and 4 of the grounds of detention. That offence under Section392 IPC alone was considered for the purpose of coming to the conclusionregarding acting in a manner prejudicial to the maintenance of publicorder is also apparent from other paragraphs of the counter affidavit.The possible explanation that the expression "morning hours" in thecounter affidavit may be a typographical mistake has to be discounted inview of the assertion made in para-L at page 6 of the counter affidavitthat "Naveen stole Rs.500/- at knife point from Prabhu of Padur on21.8.2006. He has committed this grave crime in public place in themorning hours." The subsequent assertions made on oath in the counteraffidavit clearly establish that the detaining authority is now trying togive a separate justification regarding the manner in which he had arrivedat the subjective satisfaction.13. In our considered opinion, such subsequent contradictoryexplanation given as justification in the counter affidavit, which is onoath, clearly establishes that at the time when the detention order waspassed, sufficient attention has not been bestowed by the detainingauthority. It is no doubt true that detention order is based onsubjective satisfaction. However, since the facts now stated in thecounter affidavit are at times diametrically opposed to the facts narratedin the grounds of detention, it is clear non-application of mind on thepart of the detaining authority. 14. For the aforesaid reason, we are constrained to quash theorder of detention. Since an order of detention has the effect ofdepriving liberty of a citizen, as observed by Baghawati, J in AIR 1980 SC1183 (SMT. ICCHU DEVI CHORARIA v. UNION OF INDIA AND OTHERS), scrupulouscare should be observed before passing any order of detention. In thepresent case, the subsequent counter filed by the detaining authority onoath belies many of the aspects which seems to have been recitedmechanically in the grounds of detention. https://hcservices.ecourts.gov.in/hcservices/

15. For the aforesaid reasons, the order of detention is quashedand the detenu shall be released forthwith unless his presence is requiredin any other case.dpkSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. State of Tamil Nadu, Rep. by its Secretary to Government, Prohibition & Excise Department, Fort St. George, Secretariat, Chennai 600 009.2. The District Collector & District Magistrate, Tiruvallur District, Tiruvallur.3. The Superintendent, Central Prison, Puzhal, Chennai. (In duplicate for Communication to Detenue)4. The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai-9.5. The Public Prosecutor, High Court, Madras.6. The Inspector of Police, B7, Vellavedu Police Station, Thiruvallur District.+1 cc to Mr.L.Vinoth Kumar, Advocate Sr.No.49517.AD(CO)dcp/17.8 HCP.NO.212/2007