CORAMTHE HONOURABLE MR v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 5.07.2007CORAMTHE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MRS.JUSTICE R.BANUMATHIH.C.P.Nos.260, 261, 265, 268,269, 270, 271 and 272/2007Ulaganathan.. Petitioner in HCP No.260/2007Ranjitham.. Petitioner in HCP No.261/2007Suba.. Petitioner in HCP No.265/2007Maya.. Petitioner in HCP No.268/2007Hamsa.. Petitioner in HCP No.269/2007Bogapathy.. Petitioner in HCP No.270/2007Samikannu.. Petitioner in HCP No.271/2007Mayawathi.. Petitioner in HCP No.272/2007Vs.1.Government of Tamil Nadu,rep. By the Secretary,Prohibition and Excise DepartmentFort St.George, Chennai-9.2.Commissioner of Police,Egmore, Chennai – 8... RespondentsFor Petitioner : Mr.A.Shiv KumarFor Respondents: Mr.Babu Muthu Meeran, Addl.PP. https://hcservices.ecourts.gov.in/hcservices/ PRAYER: Petitions filed under Article 226 of theConstitution of India for issue of Writ of Habeas Corpusdirecting the respondents to produce the detainees before thisCourt and set them at liberty.Writ of Habeas Corpus directing the respondents to produce thedetention1. Samukutty @ Murugan s/o Ulaganathan aged about 28 yearsresident of NO. 2/37 Anna Street, Kelathipettai 600 0692. Madan S/o Late Anbu aged about 28 years resident of 2/108Nagarathinam Pillai Street, Kelathipettai 600 069.3. Mega @ Meganathan s/o Late Deivasigamani aged about 28 years aresident of NO. 3/30 Nagarathinam Pillai Street, Kelathipettai600 0694. Johnson s/o Sundaram aged about 27 years a resident of NO.2/54 Anna Street Kelathipettai 600 069.5. Babu @ Gundubabu S/o late Chinnapayan aged about 32 years aresident of NO. 2/54 Anna Street Kelathipettai 600 0696.Babu @ Bogapathy babu s/o Bogapathy aged about 28 years aresident of NO. 2/5 Nagarathinam Pillai street, Kelathipettai 6000697. Rajan S/o Samikkannu aged about 38 years a resident NO.1/152 Gandhi Street Kelathipettai 600 0698. Ashok S/o late Chinnathambi aged about 23 years a resident NO.2/134 Nagarathinam pillai street, Kelathipettai 600 069 presentlyall confined at the Central Prison, Puzhal Chennai before thisHon'ble Court by calling for the records dated 10.01.07 inBDFGISSV NOS. 6 of 2007 NO. 2/07; 3/07; 8/07; 4/07; 7/07 5/07 and9/07 respectively quash the same and set the detainees atliberty. C O M M O N - O R D E RR.BANUMATHI, J.In these HCPs, the relatives of the detainees challenge thedetention orders whereby the detainees were detained under Act14/1982, branding them as "Goonda" as contemplated under Section2(4) of the Tamil Nadu Prevention of Dangerous activities ofBootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral https://hcservices.ecourts.gov.in/hcservices/ Traffic Offenders, Sand Offenders, Slum Grabbers and VideoPirates Act, 1982 [Tamil Nadu Act 14 of 1982].2.All the detainees are allegedly involved in adverse caseCr.No.718/2006, T-13 Kunrathoor P.S. That apart, some of thedetainees had come to adverse notice in other cases also. DetenuMadhan is alleged to be involved in other T.13. Kunrathoor PoliceStation Cases, Cr.No.721/2006 of T-13 Kunrathoor P.S. DetenusMega @ Meganathan and Johnson, Babu @ Gundubabbu, Babu @Bogapathy are alleged to be involved in Cr.No.189/2006; DetenuRanjan is alleged to be involved in Cr.No.1024/2006; Detenu Babu@ Bogapathy Baby is also alleged to be involved in Cr.No.60/2005.3.The ground case relates to the occurrence on 18.12.2006,on which date, police are alleged to have proceeded to apprehendthe accused concerned in Cr.No.718/2006. At that time, thedetainees are alleged to have brandished their knives andthreatened the police personnel and are also alleged to havethreatened the public and threatening to hurl country bombs andare alleged to have created terror and panic at the spot. On thecomplaint lodged by the police personnel, the ground case wasregistered in Cr.No.722/2006 under Sections 147, 148, 332 and 506(2) IPC r/w Sec.3 and 4 of Indian Explosives Act, and Sec. 25 ofArms Act.4.Even though several contentions were raised and argued aswell, the learned Counsel for the detainees mainly projected thateven though the detainees had sent pre-detention representationon 31.12.2006 and the Detaining Authority had received the same,and called for remarks, yet the Detaining Authority has notconsidered the representation nor has he referred to the same norawaited the report of the pre-detention representation, whichindicates non-application of mind on the part of the DetainingAuthority. In support of his contention, the learned Counselplaced reliance upon 2006(1) LW Crl.293 [P.M.S.Mohiadeen SahibVs. State of Tamil Nadu and another] and 1999(2) CTC 490[T.M.Syed Ali and another Vs. State of Tamil Nadu and others]. 5.The learned Addl. Public Prosecutor had taken us throughthe grounds of detention and placing relevant files would submitthat pre-detention representation was duly considered and theDetaining Authority had called for report from the DeputyCommissioner, Ambattur and the Detaining Authority did take intoconsideration pre-detention representation. The learned Addl.Public Prosecutor further submitted that the report onlydisclosed that the averments in the representation is false andin that view of the matter, non placing of report before theDetaining Authority would not vitiate the detention order passedon 10.01.2007. https://hcservices.ecourts.gov.in/hcservices/

6.We have perused the copy of the representation dated31.12.2006. The detainees have raised several contentionsinteralia pointing out the group rivalry in the local bodyelections and pendency of cases against the opposite party. Thepre-detention representation dated 31.12.2006 was received by theoffice of Detaining Authority on 04.01.2007. On 05.01.2007,Detaining Authority did call for a report from the DeputyCommissioner Ambattur. Inspector of Police, Sponsoring AuthorityKunrathur P.S. submitted his report on 13.01.2007, which wasprocessed through Assistant Commissioner [on 16.01.2007] andDeputy Commissioner on 25.01.2007. Before the report was placedbefore the Detaining Authority, the impugned detention orderswere passed.7.The enquiry report elaborates upon the group rivalry ofboth groups in an election dispute and series of other disputes.On these main factors, the subjective satisfaction is based. Therelatives of the detainees made pre-detention representation on31.12.06, touching on the group rivalry and other series ofdisputes between the parties. Even though there was no referenceabout the pre-detention representation, having received the pre-detention representation and called for the report, withoutconsidering the same, the Detaining Authority has passed thedetention orders, which in our view has the effect of vitiatingthe detention orders.8.Now let us consider the decision of this Court on pre-detention representation. Similar factual situation arose in2006(1) LW Crl. 39 [Mohana Vs.State, rep. By Secretary toGovernment, Prohibition and Excise Department and another]. Pre-detention representation was received by the Detaining Authority.Remarks were also called for on it and without passing any orderon the pre-detention representation, the Detaining Authoritypassed the order of detention. Quashing the detention order, thisCourt has held as follows :-"5.Having considered the pre-detention representationdated 22.09.2004 and having called for the remarks on it,we are at loss to understand as to how the DetainingAuthority hastened to pass the detention order dated25.09.2004 without getting the remarks and without taking adecision on the pre-detention representation. This showsthat the Detaining Authority has not taken a decision onthe pre-detention representation and he has not chosen toreflect the same in the grounds of detention and as such,it is an illegality as held by this Court in the decisionsin Mani Vs.State of Tamil Nadu, rep. By the Secretary toGovernment, Prohibition & Excise Department, FortSt.George, Chennai & Another 2000(1) MWN (Cr.) 279 = 2000(1) LW Crl.452 and Suresh Kumar V. State 2004 MLJ Cri.733 =2004 (1) LW Crl. 394". https://hcservices.ecourts.gov.in/hcservices/ It is the duty of the Detaining Authority to consider the pre-detention representation of the detainees and find out as towhether there are any bonafides. While arriving at subjectivesatisfaction, the Detaining Authority has to consider pre-detention representation sent by the relatives and shall come tothe conclusion on the representation. Having called for thereport from the authorities, Detaining Authority without waitingfor the report, hastened to pass the detention orders. In ourview, the report might have persuaded the Detaining Authority notto pass an order of detention.9.In 1999 (2) CTC 490 [T.M.Syed Ali and another Vs. State ofTamil Nadu and others], mother and father of the detainees in therespective case represented on 08.08.1998 and 11.08.1998 denyingthe alleged incident dated 2.08.1998. The Detaining Authority hasnot considered the same while passing the detention order nor hadthe Detaining Authority furnished copy to detainees. Quashing thedetention orders, First Bench of this Court has held asfollows :-"The question that has to be decided is as to whetherthis is a relevant material to consider before arriving atsubjective satisfaction whether or not to issue an order ofdetention. In our considered view, the aforesaid materialis a crucial material which has to be taken intoconsideration for deciding as to whether to pass or not topass an order of detention. It may be that the DetainingAuthority may after due consideration of the aforesaidmaterial still comes to a conclusion that this is a fitcase for passing an order of detention after finding thatthe case made out in the representation and the telegram asconcocted and false. However, it cannot be said that thesaid documents are immaterial for arriving at the aforesaidsubjective satisfaction. It may be that the DetainingAuthority might have been persuaded on consideration of theaforesaid documents on hold that the presence of thepetitioners at the time of the alleged offence on 2.8.1998becomes doubtful and might have been persuaded not to passan order of detention issued by the 2nd respondent suffersfrom vice of non application of mind on account of thefailure to consider the material piece of evidence andhence the same is liable to be set aside on the ground".10.In 2006(1) LW Crl.293 [P.M.S.Mohiadeen Sahib Vs. State ofTamil Nadu and another], detenu has made pre-detentionrepresentation on 04.07.2005, which was received by theSuperintendent, Central Prison, who forwarded the same to LawMinister, Government of Tamil Nadu on 05.07.2005 itself. In thesaid case, Court has held that the Detaining Authority ought tohave verified the earlier representation and passed the orderafter due consideration. We are satisfied that the DetainingAuthority failed to consider these relevant aspects and the https://hcservices.ecourts.gov.in/hcservices/ detenu is entitled to succeed. In the said order, Court hasreferred to the following cases - AIR 1975 SC 775 [John MartinVs. State of West Bengal]; 2004 SCC Criminal 618 [A.C.Razia Vs.Govt. of Kerala and 1999 (2) CTC 490 [T.M.Syed Ali Vs.State ofTamil Nadu].11.In the light of the above principles, we are of the viewthat pre-detention representation sent by the relatives of thedetainees on 30.12.2006 was received by the Detaining Authorityand the Detaining Authority did call for report. Yet, withoutreferring to the pre-detention representation or waiting for thereport, the detention orders were clamped on the detainees.Having regard to these circumstances, we find that detentionorders are liable to be set aside.12.For the foregoing reasons, the detention orders are setaside and these petitions are allowed. The detenus are directedto be set at liberty forthwith unless they are required inconnection with any other case.tarSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Government of Tamil Nadu,Prohibition and Excise DepartmentFort St.George, Chennai-9.2.Commissioner of Police,Egmore, Chennai – 8.3.The Public Prosecutor, High Court, Madras+8ccs to Mr. A. Shiva Kumar, Advocate sr no. 40433 to 40440mj(co)nm(11.07.07)H.C.P.Nos.260/2007 batch