Kalyani RajasimmanW/o.C.D. Rajasimman v. The Secretary to Government

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18-08-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MRS. JUSTICE R. BANUMATHIHABEAS CORPUS PETITION NO.427 OF 2007Kalyani RajasimmanW/o.C.D. Rajasimman.. PetitionerVs.1. The Secretary to Government, Prohibition & Excise Department, Secretariat, Chennai 600 009.2. The District Collector & District Magistrate, Nagapattinam District, Nagapattinam... RespondentsPetition filed under Article 226 of the Constitution of India for theissuance of writ of Habeas Corpus to call for the records relating to thedetention order dated 6.3.2007 made in detention order C.O.C.No.05 of 2007passed by the second respondent herein quash the same and direct therespondents to produce the body of the detenu Thiru.CDR @ Rajasimman whohas been detained in Central Prison at Trichuriapali before this Court andset him at liberty.For Petitioner: Mr.R. Sankarasubbu for Mr.T.P. Senthil KumarFor Respondents: Mr.M. Babu Muthu Meeran Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ O R D E RP.K. MISRA, JWife of the detenu has filed this Habeas Corpus Petition forquashing the order of detention dated 6.3.2007 passed by the DistrictMagistrate and District Collector, Nagapattinam, which has been passed onthe allegation that the detenu is a Goonda and it is necessary to preventhim from acting in any manner prejudicial to the maintenance of publicorder.2. The detenu came to the adverse notice of the police inKariyapattinam Police Station Cr.No.30 of 2003 registered under Sections147, 148, 427 and 506(ii) IPC, Kariapattinam Police Station Cr.No.181 of2003, registered under Sections 147, 148, 341, 342, 324 & 307 IPC,Vedaranyam Police Station Cr.No.402 of 2005, registered under Sections147, 148, 341, 323, 324 & 307 IPC r/w.3(1) of TNPPD Act and KariyapattinamPolice Station Cr.No.46 of 2007, registered under Sections 147, 148, 324 &307 IPC r/w.3(1) of TNPPD Act. First two adverse cases are pending trialand the later two are pending investigation on the date when the order ofdetention was passed.3. The ground case on which the order of detention was passed isdated 16.2.2007. Complaint was lodged by one Vasantha, wife ofThiyagarajan. It is narrated therein that her husband had earlier beenassaulted by the detenu and his brother in connection with whichKariyapattinam Police Station Cr.No.181 of 2003 under Sections 147, 148,341, 324 and 307 IPC had already been registered and trial was pending.It further appears that such complainant's husband had contested in thePanchayat election, but the detenu became successful and he is thePanchayat President. On 16.2.2007, the detenu along with others came in acar armed with deadly weapons and subsequently they trespassed into thehouse of the informant and her husband and caused damages to the doors,windows, cycle, car, etc. The detenu and two others took the husband ofthe complainant to the backyard and the detenu inflicted multiple cuts inthe neck of her husband resulting in fall of neck of her husband. Othersalso inflicted cut injuries and her husband died in the spot with bleedinginjuries. On the basis of such complaint, Kariyapattinam Police StationCr.No.47 of 2007 had been registered. Investigation to such crime wasgoing on. The detenu surrendered before the Judicial Magistrate on19.2.2007 and was remanded to judicial custody till 5.3.2007. On therequisition from the Inspector of Police, the accused was remanded topolice custody for two days. Subsequently, the accused gave aconfessional statement which was recorded by the Inspector on 23.2.2007 at5.30 P.M. On the basis of such basic materials, the order of detentionhas been passed on 6.3.2007. https://hcservices.ecourts.gov.in/hcservices/

4. In the grounds of detention, the detaining authority hasindicated that the detenu had filed Cr.M.P.No. 2437/2007 which wasdismissed on 23.2.2007. It has been further indicated that bailapplication numbered as Cr.M.P.No.1646/2007 was pending before theNagapattinam District Sessions Judge. It is further stated :"... However, there is real possibility of his coming outon bail by filing another bail application before the High Courtor the Supreme Court for the above case, since in similar cases,bail orders are granted by the High Court or the Supreme Courtafter lapse of time."The detaining authority concluded that with a view to prevent the detenufrom indulging in further activities prejudicial to the maintenance ofpublic order, it was necessary to pass the order of detention.5. Learned counsel for the petitioner has contended that therehas been undue delay in disposal of the representation and the subsequentcommunication thereof.From the chart produced by the learned Addl. Public Prosecutor itappears that representation dated 12.3.2007 was received on 15.3.2007 andremarks were called for on 16.3.2007 and were received on 2.4.2007.Subsequently, the Minister rejected such representation on 5.4.2007 andthe rejection letter was prepared on 9.4.2007 and sent to the detenu on10.4.2007. Though prima facie it appear as if there was some delaybetween the date on which remarks were called for and the date on whichremarks were received, it is apparent that such remarks were called for bypost and subsequently in the Collectorate after receiving the remarks fromthe sponsoring authority such report was sent to the Government by postand sometime has been taken through the process of communication by post.Apart from this, there appears to be no other delay at any stage. Thoughit may appear as if rejection letter was prepared on 9.4.2007, after a gapof about 4 days, it appears that 6th, 7th and 8th April, 2007 were holidaysand therefore it cannot be said that there was any delay in preparing therejection letter. This contention regarding delay, therefore, is notacceptable.6. Learned counsel for the petitioner has further contended thatthe alleged incident on the basis of which ground case has been registeredand the detention order has been passed had occurred on the backyard ofthe informant and therefore it cannot be said that there has beenpossibility of public order being affected and it should be concluded thatit is a case of mere law and order. 7. As per Section 2(1)(a)(iii) “acting in any manner prejudicialto the maintenance of public order” means – in the case of a goonda, whenhe is engaged, or is making preparations for engaging, in any of hisactivities as a goonda which affect adversely, or are likely to affect https://hcservices.ecourts.gov.in/hcservices/ adversely, the maintenance of public order.8. Whether public order is likely to be affected or mere law andorder, is a matter which depends not only on the place of occurrence butalso on several other factors such as setting the background and theimpact which it may have on the even tempo of life.9. The occurrence took place in a small village and the mannerin which the occurrence has taken place is very likely to disturb the eventempo of life and, therefore, it can be said to be infringement of publicorder rather than infringement of mere law and order. The subjectivesatisfaction of the detaining authority on this aspect cannot be said tobe arbitrary requiring any interference.10. The other contention of the petitioner is to the effect thatin the representation dated 12.3.2007 the petitioner had asked for copiesof remand extension order and the remand extension requisition petition inKariyapattinam Police Station Cr.No.46 of 2007, but the copies were notsupplied. In answer to the contention raised to the above effect in para26 of the affidavit, in the counter affidavit it has been stated thatsince those documents were not relied upon, copies of such documents werenot supplied to the petitioner or the detenu.11. From the grounds of detention it is apparent that thedetaining authority came to the conclusion that detenu was a Goonda byrelying upon four adverse cases including the case registered in Cr.No.46of 2007. It is the specific contention of the petitioner that the detenuhad surrendered before the Magistrate in connection with the said Cr.No.46of 2007 as well as ground case Cr.No.47 of 2007. In such a situation itcannot be said that the documents sought for on behalf of the detenu wereon the face wholly irrelevant warranting rejection of the representationfor supply of such documents. In this context, it has to be rememberedthat one of the main contentions raised in the present Habeas CorpusPetition is to the effect that the detenu had been remanded in both thecases and the detaining authority without being aware of the fact that thedetenu was remanded also in connection with Cr.No.46 of 2007, has passedthe order of detention. According to the petitioner, this would alsoindicate that the detaining authority never made any real efforts to findout as to what had happened in Cr.No.46/2007, particularly when theoccurrence had taken on the very same day. Even assuming that thedetaining authority had not specifically relied upon such documents, sincethe alleged implication of the detenu in such adverse case was the subjectmatter of the detention order, when copies were sought for, efforts shouldhave been made to supply the copies or to find out at least whethercopies were in existence or not. Therefore, there has been non-application of mind at that stage and also there has been mechanicalrejection of the representation requesting for copy of such documents.12. It is next contended by the counsel for the petitioner thatsince a bail application has been filed and was pending before the https://hcservices.ecourts.gov.in/hcservices/ Sessions Judge, conclusion of the detaining authority to the followingeffect "However, there is real possibility of his coming out on bail byfiling another bail application before the High Court or the Supreme Courtfor the above case, since in similar cases, bail orders are granted by theHigh Court or the Supreme Court after lapse of time." itself reflects non-application of mind on the part of the detaining authority. He submittedthat since bail application was pending and yet to be considered, there isno question of filing another bail application and it seems the detentionorder has been mechanically passed without applying mind to the relevantaspects. In support of such contention, learned counsel has placedreliance upon a decision of this Court reported in 2005 TLNJ Crl.304 (V.SELVAM v. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, THIRUVANNAMALAIDISTRICT AND ANOTHER). In the said decision, after noticing the fact thatbail application had been filed, the detaining authority concluded :"I am also aware that there is an imminent possibility ofhis coming out on bail by filing another application for theabove case before the same Court or Higher court ..."In the above background, the Division Bench observed:-"5. As rightly contended by the learned counsel for thepetitioner, when a bail application in Crl.M.P.No.2687 of 2005 onthe file of Sessions Judge, Tiruvannamalai, was still pendingtill 10.5.2005, there is no necessity for the detenu to fileanother bail application before the same Court or the higherCourt. Therefore, the impugned order of detention disclosing thenon-application of mind by the detaining authority is apparent onthe face of record.6. The above view of ours is also supported by the earlierorders of this Court dated 21.7.1999 rendered in P.K. MADHAVAREDDIAR Vs. STATE OF TAMIL NADU, rep. by the Secretary toGovernment, Prohibition & Excise Department, Chennai-9(H.C.P.No.1709/98), and dated 9.11.1999 rendered in OorkkavalanVs. State of Tamil Nadu, rep. by Secretary to Government,Prohibition & Excise Department, Chennai-9 (H.C.P.No.801/99)."13. The recitals in the grounds of detention may be inartisticexpression and one can discern that what the detaining authority intendedis that in case pending bail application is rejected, there is possibilityof detenu coming out on bail by filing bail application in the High Courtor even in the Supreme Court. Merely because there has been someinartistic expression, prima facie it cannot be inferred that there hasbeen non-application of mind. However, since the order of detention isliable to be quashed on the other ground, it is not necessary to delvefurther into this question. https://hcservices.ecourts.gov.in/hcservices/

14. 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. The Secretary to Government, Prohibition & Excise Department, Secretariat, Chennai 600 009.2. The District Collector & District Magistrate, Nagapattinam District, Nagapattinam.3. The Public Prosecutor, High Court, Madras.4. The Superintendent, Central Prison, Trichirapalli.5. The Joint Secretary to Government, Public (Law & Order) Fort Saint George, Chennai-9.+1 cc to Mr.T.P.Senthil Kumar, Advocate Sr.No.52204.VRK(CO)dcp/23.8HCP.NO.427/2007