Vimala @ Shilpa v. State & Ors.

In the High Court of Judicature at Madras Dated: 21.01.2009Coram:The Honourable Mr.Justice ELIPE DHARMA RAOand The Honourable Mr.Justice R.SUBBIAH Habeas Corpus Petition No. 1742 of 2008Vimala @ Shilpa...Petitioner Vs.1. State rep.by Secretary to Government, Home, Prohibition & Excise Dept., Secretariat, Chennai-600 009.2. The Commissioner of Police, Chennai Police, Egmore, Chennai-600 008....RespondentsPetition filed under Article 226 of the Constitution of India,for the issuance of a Writ of Habeas Corpus, directing therespondents to produce the detenue Vimala @ Shilpa, wife ofAdhisesh, aged 40 years, who is now detained in Special Prison forWomen, Puzhal, Chennai-66, in pursuance of the detention order passedby the 2nd respondent on 03.10.2008 in Memo No.341/BDFGISSV/2008,before this Court, call for the records, set aside the order and setthe detenue at liberty forthwith.For Petitioner ..Mr.S.Swamidoss ManokaranFor Respondents ..Mr.N.R.Elango, Addl.P.P.,R.SUBBIAH, J.,The petitioner herein challenges the impugned order of detentiondated 03.10.2008 detaining her as an 'Immoral Traffic Offender' ascontemplated under the Tamil Nadu Prevention of Dangerous Activities https://hcservices.ecourts.gov.in/hcservices/ of Bootleggers, Drug Offenders, Forest Offenders, Goondas, ImmoralTraffic Offenders, Sand Offenders, Slum Grabbers and Video PiratesAct, 1982. 2. Learned counsel for the petitioner submitted that thedetention order dated 03.10.2008 is liable to be set aside on thefollowing grounds:(1) In the order of detention, the name of thehusband of the detenue was mentioned as 'Adhisesh', but inthe adverse case relied upon by the detaining authority,the name of the husband of the detenue was mentioned as'Prasad'. Even in the confession statement the detenue hasmentioned that she is the wife of ‘Prasad’. This vitalcontradiction, with regard to the mentioning of the nameof the husband of the petitioner, was not considered bythe detaining authority. This non consideration of vitalcontradiction by the detaining authority would go to showthat the detention order has been passed withoutapplication of mind by the detaining authority in passingthe order.(2) The Tamil version of the documents in pageNos.41, 77, 113, 114, 115, 146, 151, 163 to 173, 176, 177,178, 179, 191 and 192 in the booklet served on the detenueare not legible and readable. Though a request was made inthe representation dated 25.10.2008 to furnish a legiblecopy of the said documents, to enable the detenue tocompare the same with the copy or booklet furnished to herin her mother tongue, namely, Kannada, the said requestwas not acceded to by the detaining authority. Therefore,on this account also, a great prejudice has been caused tothe detenue, in violation of Article 22(5) of theConstitution of India.(3) Several documents furnished in the Tamil bookletat page Nos.35, 36, 39 to 40, 43, 47, 51, 55, 59, 63 t066, 71, 73 and 137 have been furnished once again in pageNos.37, 38, 41, 42, 45, 49, 53, 57, 61, 67 to 70, 79, 81and 139 of the same booklet. This repetition of documentsfound in the Tamil version was carried on to the Kannadaversion also. This aspect of repetition of the samedocuments found in the booklet furnished to the detenueboth in Tamil and Kannada would go to show that thedetaining authority had passed the order of detentionwithout properly perusing the documents. Hence, the orderof detention is liable to be set aside on the ground ofnon-application of mind by the detaining authority.(4) The copies of certain vital documents and legiblecopies for the illegible documents found in certain pagesof the booklet were not furnished to the detenue in spiteof a request made by her through a representation. Hence, https://hcservices.ecourts.gov.in/hcservices/ the non-supply of those documents to the detenue is fatalto the detention. In this regard, the learned counsel forthe petitioner placed reliance on the judgment reported inP.Muthuswamy ..vs.. State rep.by the Secretary toGovernment etc., and another (2000-1 L.W.(Crl.) 27).(5) Though it has been stated in the grounds ofdetention that the adverse case in C.C.No.8372 of 2004 ispending for trial, no material has been placed before thedetaining authority to show that the said case is pending.Hence, no proper subjective satisfaction was arrived at bythe detaining authority while passing the order. (6) The adverse case was registered in the year 2004as against the detenue under Crime Nos.43 to 50 of 2004for indulging in prostitution. But, the ground case wasregistered in 2008 for running a brothel house by keepingthe girls in cars and calling the public to indulge inprostitution. The offence under the adverse case and inthe ground case is totally unconnected. Under suchcircumstances, the conclusion of the detaining authoritythat the detenue is 'habitually' committing the offenceunder the Immoral Traffic (Prevention) Act is without anymaterial. Since expression ‘habitually’ committing theoffence of illegal traffic is a vital factor to pass adetention order, the order in question is liable to be setaside on the ground that the factor of committing theoffences 'habitually’ is missing.(7) The statements of the victim girls, numbering 10,were stated to be translated into Tamil from Hindi fromthe time of arrest of the detenue on 15.09.2008 at 18.15Hours to 19.00 Hours. The translation of the voluntarystatements of the 10 victim girls within a short period oftime is highly doubtful. Moreover, all the statements areidentical in nature. This fact was not properly consideredby the detaining authority while passing the order. Thephysical identification of the victim girls as noted downin the detain order at the time of their arrest have beenmade cynically and their identification marks recorded insuch a way throw much doubt. This factor is notconsidered by the detaining authority while passing theorder of detention.(8) The arrest of the detenue was not intimated toher relatives. Hence, this is a violation of theguidelines stipulated by the Apex Court in D.K.Basu ..vs.. State of West Bengal (1997 SCC (Crl.) 92) and onthat ground also, the order is liable to be set aside.(9) There is a delay in considering therepresentation dated 25.10.2008. Though the order ofrejection was passed on 21.11.2008 the same was served onthe detenue only on 28.11.2008. Therefore, there is an https://hcservices.ecourts.gov.in/hcservices/ inordinate delay in serving the rejection order, which hadcaused a great prejudice to the rights of the detenue andon this ground also, the order is liable to be set aside.In this regard, the learned counsel for the petitioner hasrelied upon a judgment in HARISH PAHWA ..vs.. STATE OFU.P.AND OTHERS (AIR 1981 SC 1126) and other two unreportedjudgments of this Court passed in H.C.P.Nos.192 of 2002and 888 of 2006 dated 25.10.2002 and 06.12.2006respectively.3. Per contra, the learned Additional Public Prosecutor made hisreply as follows:(a) Though in the first information report and inthe arrest memo. registered in the adverse case in theyear 2004 in crime Nos.43 to 50 of 2004, the name of thehusband of the detenue was found as 'Prasad', there issufficient material to show that she is the wife of'Adhisesh'. Under such circumstances, it cannot be saidthat there is vital contradiction in mentioning the nameof the husband as 'Adhisesh' in the detention order. Healso drew the attention of this Court to therepresentation dated 25.10.2008 submitted by the detenue,wherein she had mentioned in the 'sender' column asVimala @ Shilpa, wife of Adhisesh. Similarly, in thebail application filed by the detenue in the ground casefound at page No.195 of the booklet, the detenue herselfmentioned that she is the wife of Adhisesh. Hence, bypointing out the name of the husband of the detenue foundin these documents, the learned Additional PublicProsecutor has submitted that there is no vitalcontradiction in mentioning the name of the husband inthe detention order. The detaining authority hascorrectly applied his mind while passing the detentionorder.(b) By inviting the attention of this Court to thepages referred to by the learned counsel for thepetitioner in the booklet as well as the translated copyof the booklet in Kannada, the learned Additional PublicProsecutor demonstrated that the said pages are legibleand clear. Further, it was submitted by the AdditionalPublic Prosecutor that a bare perusal of the entirebooklet would show that the allegation that certaindocuments are illegible and unreadable has been purposelymade as an attempt to make a point to set aside thedetention order.(c) Though there is a repetition of certaindocuments in the booklet, the same cannot be taken as aground for setting aside the order of detention. Sincethere is a repetition of the documents in the booklet it https://hcservices.ecourts.gov.in/hcservices/ would, in no way, cause prejudice to the rights of thedetenue.(d) The detenue was running a brothel house bykeeping girls and the confession statements of the girlswould reflect that they have been brought under falsepromise that the detenue would secure jobs for them in anexport company and compelled them to indulge in fleshtrade. The complaints written by the neighbours wouldalso show that the detenue was running a brothel housestaying at No.1/37, Thirunagar Annexe, Valasaravakkam,Chennai as a tenant for quite a long time. Further, theadverse case also would reflect that she involved in theoffence under the Immoral Traffic (Prevention) Act.Under such circumstances, unlike the case of Goondas,there is no need for several adverse cases in pluralityto pass the detention order. Therefore, the submissionmade by the learned counsel for the petitioner that'habitually is missing' has no merit.(e) All the copies of documents, which were reliedupon by the detaining authority, were furnished to thedetenue as requested by her in the representation dated25.10.2008. But the documents like pocket note of theInspector and case diary were not relied upon by thedetaining authority in passing the order. Hence, when arequest was made for these documents in therepresentation, a reply was sent clearly stating thatthose documents are not relied upon by the detainingauthority to arrive at the subjective satisfaction inpassing the order. Hence the submission made by thelearned counsel for the petitioner on the ground of non-furnishing of the documents has to be rejected. (f) The first information report registered in theadverse case and the charge sheet filed therein inC.C.No.8372 of 2004 along with the affidavit ofsponsoring authority would show that C.C.No.8372 of 2004is pending for trial. Therefore it is not correct tostate that no material was placed with regard to thependency of Criminal case in C.C.No.8372 of 2004 beforethe detaining authority.(g) The statement of each victim girl runs aboutonly a page. Therefore, it cannot be said that thetranslation made between 18.20 Hours and 19.00 Hours bythe Sub-Inspector of Police raises a doubt. (h) Similarly, with regard to the contention raisedby the learned counsel for the petitioner that recordingof the identification marks of the victim girls in thedetain order, had been made with cynical intention, it issubmitted by the Additional Public Prosecutor that theidentification marks were recorded by the Judicial https://hcservices.ecourts.gov.in/hcservices/ Magistrate and, therefore, no doubt can be raised bymaking sarcastic comments on judicial orders. Moreover,the contention raised by the learned counsel for thepetitioner with regard to the recording of the statementsof the victim girls by the police as well as recording ofidentification marks in the detain order by the JudicialMagistrate, are all connected with the factual aspects ofthe case. The correctness of the factual aspects of thecase cannot be made as a ground for attacking thedetention order.(i) There is no violation of guidelines as laid downby the Apex Court in D.K.Basu's case as stated by thelearned counsel for the petitioner. The detenue herselfstated in her confession statement that she was desertedby her relatives. Further, all the efforts taken by thesponsoring authority to get the particulars of therelatives of the detenue ended in vain. Under suchcircumstances, it cannot be said that the guidelines ofD.K.Basu's case are violated. Even if there is anyfailure to comply with the provisions of law with regardto the remand of the detenue it is always open to thedetenue to challenge the same by initiating suitableproceeding, especially in the circumstances, as in thecase on hand where the detenue herself made a confessionstatement that she was deserted by her relatives. In thisregard, the learned Additional Public Prosecutor reliedupon the case reported in 2000(1) L.W.(Crl.) P.443.(j) There is no delay in considering therepresentation submitted by the petitioner/ detenue. Therepresentation was made on 25.10.2008 and the order ofrejection was passed on 21.11.2008 i.e.within a period ofone month. Further, the dates 22.11.2008 and 23.11.2008being Saturday and Sunday, the rejection order wasdespatched on the next working day viz., 24.11.2008 andit has reached the detenue on 28.11.2008. Therefore, nodelay has been caused on the part of the State in servingthe copy of rejection order on the detenue and therefore,the submission made by the petitioner alleging that thereis a delay in considering the representation has to berejected. Thus, by concluding his arguments, the learnedAdditional Public Prosecutor submitted that the detentionorder was passed by the detaining authority with properapplication of mind ;all the copies of the documentsfurnished to the detenue are legible and readable;habitual act of the offence is also evident from theadverse cases and from other materials;the doubtraised by the learned counsel for the petitioner onfactual aspects cannot be a ground for quashing thedetention order, since the correctness of the facts of https://hcservices.ecourts.gov.in/hcservices/ the case cannot be gone into while passing the detentionorder. There is no violation of law or guidelines of theHon'ble Supreme Court in effecting the arrest of thedetenue. There is no delay in considering the representationor serving the order of rejection.4. Heard the learned counsel for the petitioner and the learnedAdditional Public Prosecutor and perused the materials on record.5. On perusing the documents found in the typed set of papers, aspointed out by the learned Additional Public Prosecutor, it is clearthat the detenue herself mentioned the name of her husband in therepresentation dated 25.10.2008 as well as in the bail application,only as 'Adhisesh' and not as 'Prasad'. In this regard, the learnedcounsel for the petitioner has given much importance to theconfession statement given by the detenue to the police officerstating that she is the wife of Prasad. But, on going through thesaid statement, we found that the detenue had stated that 'Prasad'accepted her as his 'wife’. But in our opinion, the said statementcannot be taken as an assertive statement. On the other hand, thesaid statement goes to prove that there is no legal relationship ofhusband and wife between the said Prasad and the detenue and thereis only a living-in relationship between them. Under suchcircumstances, we are not inclined to accept the submission made bythe learned counsel for the petitioner that there is a vitalcontradiction in mentioning the name of the husband by the detainingauthority in the detention order.6. With regard to the other contention of the learned counsel forthe petitioner that certain pages in booklet are not legible, we haveperused the documents referred to by the learned counsel for thepetitioner and found that the copies are legible and clear. Undersuch circumstances, we do not hesitate to accept the submissionputforth by the learned Additional Public Prosecutor that the saidallegation was made purposely as an attempt to create a defence, someway or other, to escape from the clutches of detention order. Hence,the submission made by the learned counsel for the petitioner in thisregard is rejected.7. As contended by the learned counsel for the petitioner, it is,no doubt, that there is repetition of certain pages in Tamil bookletas well as in Kannada translation. But in our view, the repetition ofpages in the booklet would not cause any prejudice to the rights ofthe detenue in making representation. Under such circumstances, weare of the view that the said allegation is nothing but yet anotherattempt to escape from the clutches of the detention order by thedetenue. Therefore, we are not inclined to accept the submissionmade by the learned counsel for the petitioner in this regard. https://hcservices.ecourts.gov.in/hcservices/ Further, on going through the rejection order, we find that all thecopies of the documents were furnished to the detenue. Some of thedocuments which were not furnished to the detenue are only thedocuments, which were not relied upon by the detaining authoritywhile passing the order of detention. Therefore, we are alsonegativing the contention raised by the learned counsel for thepetitioner that certain relevant documents were not furnished to thedetenue to make an effective representation. Hence the judgmentrelied upon by the learned counsel for the petitioner reported inP.Muthusamy ..vs.. State, rep. by the Secretary to the Government andanother (2000 (1) L.W. (Crl.)p. 27) has no application to the factsof this case.8. On a perusal of the first information report registered in theadverse cases as well as the charge sheet, we are of the view, ascontended by the learned Additional Public Prosecutor, that thecharge sheet and the first information report coupled with theaffidavit sworn in by the sponsoring authority would go to show thatC.C.No.8273 of 2004 is pending for trial. Hence, the submission madeby the learned counsel for the petitioner that no material was placedbefore the detaining authority to show that C.C.No.8273 of 2004 ispending for trial, cannot be accepted and the same is herebyrejected. 9. Coming to the other grounds raised by the petitioner withregard to the recording of the statements of the victim girls as wellas recording of the identification marks by the Judicial Magistrate,we accept the submission made by the learned Additional PublicProsecutor that the points raised by the learned counsel for thepetitioner in this aspect are the questions of fact. The correctnessof the question of facts cannot be gone into by the detainingauthority. Even if the petitioner feels that there is some flaw inrecording the confession statements of the victim girls as well asany flaw in recording the identification marks, the same can bequestioned by her before the appropriate forum in accordance with lawand the alleged flaw will not, in any way, augment the case of thepetitioner, in these proceedings.10. With regard to the submission made by the learned counsel forthe petitioner that there is no connection between the adverse casesand the ground case and as such habitual act of committing theoffence is missing, which is a basic criteria for passing thedetention order, we are of the view that, as contended by the learnedAdditional Public Prosecutor, the detenue was running a brothel houseby keeping 10 girls by falsely promising each of them to secure a jobin an export company. The complaints of the neighbours would alsoshow that the detenue was running a brothel house staying as a tenantfor quite a long time. Therefore, as contended by the learnedAdditional Public Prosecutor, to brand as an immoral traffic https://hcservices.ecourts.gov.in/hcservices/ offender, there is no requirement for several adverse cases unlikethe case of Goondas. The fact that the adverse case registered in theyear 2004 coupled with the ground case along with the othermaterials, undoubtedly would go to prove that the detenue is ahabitual offender. Under such circumstances, we are not inclined toaccept the submission made by the learned counsel for the petitionerthat the expression ‘habitual’ is missing . Accordingly, thiscontention is also rejected.11. With regard to the contention of the petitioner that thearrest was not intimated to the relatives of the detenue, we are ofthe view that, as submitted by the learned Additional PublicProsecutor, the detenue herself has stated in her confessionstatement that she was deserted by her relatives and the materials onrecord would also show that all the efforts taken by the sponsoringauthority to get the particulars of the relatives ended in vain.Under such circumstances, it cannot be said that the guidelines laiddown by the Apex Court in D.K.S.Basu's case are violated. At thisjuncture, it would be appropriate to quote the dictum laid down bythis court in S.Sukumaran and others ..vs.. State rep.by the Sub-Inspector of Police, etc., (2000(1) L.W.(Crl.) 443), wherein it hasbeen held as follows:"10. Learned counsel for the petitioner furtherrelied upon a decision of the Apex Court reported in1997 SCC (Crl.)92 (D.K.Basu ..vs.. State of WestBengal) and contended that the remand of the detenu wasimproper and that there is no valid remand since theguidelines indicated in the said decision have not beencomplied with by the concerned Magistrate. Thequestion whether the remand properly effected and inaccordance with law is a matter to be agitated in adifferent proceeding and before a different Forum. If,really there was any failure to comply with theprovisions of law with regard to remand of an accused,it is always open to the accused to question the sameby initiating suitable proceedings".Therefore, even if there is any violation as alleged by the detenue,she can challenge the same by initiating suitable proceedings.12. With regard to the delay in considering the representation isconcerned, we find that the representation was sent on 25.10.2008 andthe rejection order was passed on 21.11.2008, i.e. within the periodof one month. Therefore, there is no delay in considering therepresentation. So far as the serving the copy of the rejectionorder on the detenue is concerned, we find that 22.11.2008 and23.11.2008 being Saturday and Sunday, the rejection order wasdespatched on the next day viz., 24.11.2008 and it has reached the https://hcservices.ecourts.gov.in/hcservices/ detenue on 28.11.2008. Therefore, we do not find any delay on thepart of the State in serving the copy of the rejection order on thedetenue. Hence, the submission made by the learned counsel for thepetitioner in this regard cannot be accepted. Therefore, we are ofthe considered view that the there is no valid ground to interferewith the order of detention.In the result, the Habeas Corpus petition fails and accordingly,the same is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government, State of Tamil Nadu, Home, Prohibition & Excise Dept., Secretariat, Chennai-600 009.2. The Commissioner of Police, Chennai Police, Egmore, Chennai-600 008.3. The Superintendent, Special Prison for Women, Puzhal, Chennai-66. 4. The Public Prosecutor, High Court, Madras.+1cc to Mr.S.Swamidoss Manokaran, Advocate Sr 2468CK (CO)km/30.1. H.C.P. No. 1742 of 2008