Thomas v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 6.1.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANHabeas Corpus Petition Nos.1888 and 1889 of 2008H.C.P.No.1888 of 2008:Thomas... Petitioner Vs.1.The State of Tamil Nadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai.2.The Commissioner of Police, Egmore, Chennai.3.The Inspector of Police (Crime), K-10, Koyambedu Police Station, Koyambedu, Chennai (Cr.No.754/2008)4.The Inspector of Police, K-3 Aminjikarai Police Station, Chennai (Cr.No.442/2008)... RespondentsH.C.P.No.1889 of 2008:M.Arogyamary... Petitioner Vs.1.The State of Tamil Nadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai. https://hcservices.ecourts.gov.in/hcservices/

2.The Commissioner of Police, Egmore, Chennai.3.The Inspector of Police (Crime), K-10, Koyambedu Police Station, Koyambedu, Chennai (Cr.No.754/2008)4.The Inspector of Police, V-4 Rajamankalam Police Station, Chennai. (Cr.No.364/2008)... Respondents* * *Both the petitions are filed under Article 226 of theConstitution.H.C.P.No.1888 of 2008 has been filed praying to issue a Writ ofHabeas Corpus, directing the respondents to produce the body andperson of the petitioner's brother Alex @ Sowri Muthu Alex, son ofSengoal, aged about 26 years, who has been detained in the CentralPrison, Puzhal, Chennai, under a Detention Order No.266/2008, dated16.8.2008 of the Commissioner of Police, Chennai (2nd respondent)calling for the records and setting aside the same and set thepetitioner's brother, Alex @ Sowri Muthu Alex, son of Sengoal atliberty.H.C.P.No.1889 of 2008 has been filed praying to issue a Writ ofHabeas Corpus, directing the respondents to produce the body andperson of the petitioner's husband Michel, son of Arokiyam, who hasbeen detained in the Central Prison, Puzhal, Chennai, under aDetention Order No.268/2008, dated 16.8.2008 of the Commissioner ofPolice, Chennai (2nd respondent) calling for the records and settingaside the same and set the petitioner's husband, Michel, son ofArokiyam at liberty.* * *For petitionersin both the HCPs.: Mr.P.Thamizhkumaran For respondents in both the HCPs.: Mr.N.R.Elango, Addl.P.P.* * * https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERELIPE DHARMA RAO, J.Both the detenus, along with other accused, are alleged to havecommitted the offences punishable under Sections 364-A, 392, 394 and398 IPC, for which a case in Cr.No.754/2008 has been registered by theInspector of Police, Crime, K-10 Koyambedu Police Station. It isalleged that on 14.7.2008 night at about 9.15 p.m., all the accusedpersons, coming by a two wheeler and a Maruthi van, intercepted theauto bearing registration No.TN-01W-2921, wherein the defacto-complainant Balasubramanian and two others were travelling, atKoyambedu Roundana, opposite to Hotel Shan Royal, and beat the autodriver and pushed him and at the point of knife and log, threatenedthe defacto-complainant and two others, who were sitting in the autowith cash in their hands and assaulted them and kidnapped them in thevan in which they came and also threatened the public and later theysnatched the cash of Rs.40 lakhs from the defacto-complainant and oneSivamurugesan and took them to Madhavaram and underneath theMadhavaram bridge, they pushed one by one and escaped from the spot inthe said van.2. It is further alleged that while both the detenus wereabsconding in the above said Cr.No.754 of 2008 of the K-10 KoyambeduPolice Station, the detenu Alex @ Savarimuthu Alex, brother of thepetitioner in H.C.P.No.1888 of 2008, on 18.7.2008 at about 18.00 hourswent to the fast food centre of one Babu, at Third Avenue road,Arumbakkam, Chennai in a Qualis car bearing Registration No.TN-09 U-7273 and had fried rice and when they were about to move withoutpaying money, the said Babu insisted for payment of the bill.Questioning the dareness of Babu in insisting payment, the detenu Alex@ Savarimuthu Alex caught hold of Babu and the other accused Bala @Balamurugan beat him over his cheeks and all the accused haveassaulted him and the detenu Alex @ Savarimuthu Alex removed the goldchain and all the accused persons, threatening the nearby shopkeepersand public escaped from the scene. Thereupon, on the complaint lodgedby Babu, a case in Cr.No.442/2008 of K-3 Aminjikarai Police Stationcame to be registered for the offences punishable under Sections 147,148, 341, 323, 384 and 386 IPC.3. Likewise, it is alleged that the detenu Michel, whileabsconding in Cr.No.754 of 2008 of K-10 Koyambedu Police Station, on16.7.2008 at 8.30 hours, joining hands with other accused, at RedHills Road and Makkaram Thottam junction, have wrongfully restrained https://hcservices.ecourts.gov.in/hcservices/ one Sekar and at the point of knife, committed robbery of gold ringand cash of Rs.1,000/= and on the hue and cry raised by Sekar, whenpublic came to his rescue, all the accused hurled cool drink bottlesand threatened the public and escaped from the spot by boarding aMaruthi van bearing Registration No.TN-05Y-2235. Thereupon, based onthe complaint lodged by Sekar, a case in Cr.No.364/2008 of V-4Rajamankalam Police Station, for the offences punishable underSections 341, 427, 336, 397 and 506(II) IPC.4. It is further alleged that during the course ofinvestigation, the Inspector of Police, K-10 Koyambedu Police Stationarrested the detenu Michel along with other accused Yogeswaran @ Maniand Kumar on 16.7.2008 at 14.00 hours at Redhills Road and 200 FeetRoad Junction and a cash of Rs.10.25 lakhs was also recovered fromthem under a cover of mahazar and their confessional statements werealso recorded and later they were produced before the V MetropolitanMagistrate Court, Egmore Court, Chennai and were remanded to judicialcustody till 31.7.2008, which was extended periodically till27.8.2008. 5. It is further seen that the detenu Alex @ Savarimuthu Alexand Bala @ Balamurugan were arrested on 23.7.2008 at 18.00 hours at200 Feet Road near Lucas Bus Stop and a cash of Rs.2,17,000/= wasrecovered from them under a cover of mahazar and later they wereproduced before the V Metropolitan Magistrate, Egmore, Chennai andthey were remanded to judicial custody till 31.7.2008, which wasperiodically extended till 27.8.2008.6. When both the detenus were in custody, as remand prisoners,the impugned orders of detention, were slapped on them.7. So far as the detention of a person, while he is in custodyand while answering the question raised that since the detenu being incustody, the anticipated and apprehended acts were practicalimpossibilities, the Honourable Apex Court in UNION OF INDIA vs. PAULMANICKAM [(2003) 8 SCC 342] has held as follows:"14. So far as this question relating to the procedure to beadopted in case the detenu is already in custody isconcerned, the matter has been dealt with in several cases.Where detention orders are passed in relation to persons whoare already in jail under some other laws, the detainingauthorities should apply their mind and show their awarenessin this regard in the grounds of detention, the chances ofrelease of such persons on bail. The necessity of keepingsuch persons in detention under the preventive detention lawshas to be clearly indicated. Subsisting custody of the detenu https://hcservices.ecourts.gov.in/hcservices/ by itself does not invalidate an order of his preventivedetention, and the decision in this regard must depend on thefacts of the particular case. Preventive detention beingnecessary to prevent the detenu from acting in any mannerprejudicial to the security of the State or to themaintenance of public order or economic stability etc.ordinarily, it is not needed when the detenu is already incustody. The detaining authority must show its awareness tothe fact of subsisting custody of the detenu and take thatfactor into account while making the order. If the detainingauthority is reasonably satisfied with cogent materials thatthere is likelihood of his release and in view of hisantecedent activities which are proximate in point of time,he must be detained in order to prevent him from indulging insuch prejudicial activities, the detention order can bevalidly made. Where the detention order in respect of aperson already in custody does not indicate that the detenuwas likely to be released on bail, the order would bevitiated. (See N.Meera Rani v. Govt. of T.N. (1989) 4 SCC 418and Dharmendra Suganchand Chelawat v. Union of India (1990) 1SCC 746) The point was gone into detail in Kamarunnissa v.Union of India (1991) 1 SCC 128. The principles were set outas follows: even in the case of a person in custody, adetention order can be validly passed: (1) if the authoritypassing the order is aware of the fact that he is actually incustody; (2) if he has a reason to believe on the basis ofreliable material placed before him (a) that there is a realpossibility of his release on bail, and (b) that on beingreleased, he would in all probability indulge in prejudicialactivities; and (3) if it is felt essential to detain him toprevent him from so doing. If an order is passed afterrecording satisfaction in that regard, the order would bevalid. In the case at hand the order of detention and groundsof detention show an awareness of custody and/or apossibility of release on bail."8. In the cases on hand, the Detaining Authority, in Para No.4of the grounds of detention, has clearly stated that he is aware ofthe fact that the detenus are in custody in Cr.No.754 of 2008 of K-10Koyambedu Police Station and that there is very likely of their comingout on bail by filing bail applications, even though the earlier onesare dismissed, since in similar cases bails are granted by the sameCourt or High Court after a lapse of time. The Detaining Authorityhas further stated that if the detenus come out on bail, they willindulge in further activities, which will be prejudicial to themaintenance of public order and the recourse to normal criminal law https://hcservices.ecourts.gov.in/hcservices/ would not have the desired effect of effectively preventing them fromindulging in such activities, which are prejudicial to the maintenanceof public order. Therefore, it is abundantly clear that the DetainingAuthority is very well aware of the fact of the detenus being incustody and the possibility of their coming out on bail and theimpugned orders of detention were slapped on them since, the DetainingAuthority has a reason to believe that if they come out on bail, theywill indulge in activities which are prejudicial to the maintenance ofpublic order. Therefore, since all the guidelines prescribed by theHonourable Apex Court in such cases, in the above judgment, have beencomplied with by the Detaining Authority, we find no illegality orirregularity in passing the detention orders while they were incustody.9. The main point urged on the part of the detenus is thatthough the order of detention was passed on 16.8.2008, they wereserved with only the order of detention and the grounds of detentionwere not served on them within five days from the date of detentionand therefore, on this sole ground, the impugned orders of detentionare liable to be quashed.10. Earlier, both the detenus viz. Alex @ Sowri Muthu Alex andMichel have filed H.C.P.Nos.1361 and 1362 of 2008 respectively, beforethis Court, challenging the very same detention orders on the groundthat though the detention orders were served on them, they were notserved with the grounds of detention and sought to quash the detentionorder. Both those petitions were dismissed by us by the orders dated31.10.2008, with a direction to file comprehensive writ petitions,since except the orders of detention, no other documents were filedbefore us and the learned counsel for the petitioners have not takenany step to file the grounds of detention. Thereafter, both thepresent petitions have been filed on behalf of the detenus.11. As has already been stated supra, as on the date of orderof detention, both the detenus were in custody as remand prisoners inCr.No.754 of 2008 of the K-10 Koyambedu Police Station at CentralPrison, Puzhal, Chennai. Though the detention order is dated16.8.2008, it has been served on both the detenus on 18.8.2008 at theCentral Prison, Puzhal, Chennai, as could be seen from the endorsementavailable on the back side of the detention order. Thereupon, thegrounds of detention were served on them on 23.8.2008 at the CentralPrison, Puzhal, Chennai, under their acknowledgements, as could beseen from the endorsements found on the back of the grounds ofdetention. Thus, the Detaining Authority has furnished the grounds ofdetention within five days of the serving of the order of detention onthe detenus, as has been mandated under Section 8 of the Act 14 of1982 and as has been repeatedly held by the upper forums of law, https://hcservices.ecourts.gov.in/hcservices/ particularly by the Honourable Apex Court right from the judgment inIBRAHIM AHMAD BATTI @ MOHD. AKHTAR HUSSAIN @ KADAR AHMED WAGNER @IQUBAL @ GULAM vs. STATE OF GUJARAT AND OTHERS [1983 SCC (Cri) 66].Therefore, there is no delay, whatsoever in furnishing the grounds ofdetention to the detenus. 12. When such is the crystal clear position that the detenuswere served with the grounds of detention on 23.8.2008 itself, in theaffidavit sworn in by the detenus on 25.8.2008 pertaining to theearlier petitions in H.C.P.Nos.1361 and 1362 of 2008, they havestated that they were not served with any other documents except theorder of detention, which is nothing but a patent lie and a falseaverment made before this Court. Further more, even when the abovesaid H.C.P.Nos.1361 and 1362 of 2008 were taken up for hearing by uson 31.10.2008, the grounds of detention were not produced before thisCourt, even though they were very well served upon the detenus on23.8.2008 itself, which appears to be only with a view to obtain afavourable order from this Court on the ground that grounds ofdetention were not served on the detenus till that time, amounting toplaying fraud on the justice delivery system. 13. Though for filing false affidavits in the earlierproceedings and hiding the information which is very well within theirknowledge as on the date of swearing in the affidavits, both thedetenus are liable for prosecution under Sections 199 and 200 of IPC,considering the fact that they are already in detention, we do notpropose to take any further penal action on them, only with asympathetic view. 14. On behalf of the petitioner in H.C.P.No.1889 of 2008, ithas been argued that in the grounds of detention at Page No.4, it hasbeen stated that the detenu Michel, Yogeswaran @ Mani and Kumar werearrested on 16.7.2007 at 14.00 hours by the third respondent for thesubsequent offence registered by the 4th respondent and thus there isno proximity to the case warranting an order of preventive detention.We are unable to accept this contention for the simple reason that ona thorough perusal of the entire materials placed on record, we areable to see that it is nothing but a typographical error and insteadof mentioning the date as 16.7.2008, it has been wrongly mentioned as16.7.2007, wherefrom no benefit could flow to the detenu. https://hcservices.ecourts.gov.in/hcservices/ For all the above reasons and discussions, we find no merit inboth these petitions and accordingly, both these Habeas CorpusPetitions are dismissed.RaoSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai.2.The Commissioner of Police, Egmore, Chennai.3.The Inspector of Police (Crime), K-10, Koyambedu Police Station, Koyambedu, Chennai 4.The Inspector of Police, K-3 Aminjikarai Police Station, Chennai5.The Inspector of Police, V-4 Rajamankalam Police Station, Chennai.6.The Superintendent of Police, Central Prison, Puzhal, Chennai.7.The Public Prosecutor, High Court, Madras.+ 2 ccs to Mr. P. Tamizhkumaran, Advocate SR No.463, 464PUR(CO)SR/12.1.2009Common order in H.C.P.Nos. 1888 and 1889 of 2008