B.Kousalya.. v. State rep.by Secretary to Government, Home, Prohibition & Excise Dept., Secretariat

In the High Court of Judicature at Madras Dated: 04.03.2009Coram:The Honourable Mr.Justice ELIPE DHARMA RAOand The Honourable Mr.Justice R.SUBBIAH Habeas Corpus Petition No.1925 of 2008B.Kousalya..PetitionerVs.1. State rep.by Secretary to Government, Home, Prohibition & Excise Dept., Secretariat, Chennai-600 009.2. The Commissioner of Police, Chennai City Sub-Urban Area, St.Thomas Mount, Chennai-16...RespondentsPetition filed under Article 226 of the Constitution of India,for the issuance of a Writ of Habeas Corpus, to direct therespondents to produce the detenu Kutty @ Kutty Bhaskar, son ofKannabiran, aged 35 years, who is now detained in Central Prison,Puzhal, Chennai-66, in pursuance of the detention order passed by the2nd respondent on 15.11.2008 in Memo No.32/BDFGISSV/2008, before thisCourt, call for the records, set aside the order and set the detenuat liberty forthwith.For Petitioner ..Mr.S.Swamidoss ManokaranFor Respondents ..Mr.N.R.Elango, Addl.P.P.,R.SUBBIAH, J.,The petitioner is the wife of the detenu, namely, Kutty @ KuttyBhaskar and she challenges the impugned order of detention, dated15.11.2008, passed by the 2nd respondent, branding her husband as'Goonda', as contemplated under Section 2(f) of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders, https://hcservices.ecourts.gov.in/hcservices/ Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders,Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of1982). 2. For clamping the detention order, the detaining authority hasrelied upon three adverse cases and one ground case. The adversecases were registered in Crime No.2466 of 2007, 1034 of 2008 and 1049of 2008 on the file of S-11, Tambaram Police Station. The groundcase was registered in Crime No.1060 of 2008 of the same PoliceStation for the offences punishable under Sections 341, 427, 392, 397and 506(ii) IPC. 3. The facts mentioned in the grounds of detention relating tothe ground case, in brief, are as follows: On 04.11.2008 at about14.00 Hours, the defacto complainant, namely, Babu, returned toTASMAC bar shop, where he was working as a Cashier, after having hislunch. On seeing him, the detenu and one Gunduraj stopped him infront of the bar and demanded money for consuming liquor. When thecomplainant objected, the said Gunduraj, caught hold of his hands andthe detenu robbed a sum of Rs.600/- from his packet. Immediately,the complainant shouted and on hearing the same, the persons insidethe bar and the public rushed to the spot for his rescue. On seeingthe crowd, the detenu took cool drink bottles from the bar and thrownthem on the road. The bottles were broken and the glass piecesscattered on the road. Thereafter, the public, who came for therescue of the complainant, ran away out of fear and panic. For awhile the whole place was looked like a battle ground. The detenuthreatened the public by showing the knife and escaped from the spot.The victim gave a complaint, which was registered in Crime No.1060 of2008 i.e.the ground case. After investigation, the detenu wasarrested on 04.11.2008 at 21.00 hours and his confession statementwas recorded. 4. In view of the above, the sponsoring authority, by concludingthat the detenu is a habitual offender and acting in a mannerprejudicial to the maintenance of public order and as such he is a"Goonda", as contemplated under Section 2(f) of the Tamil Nadu Act14 of 1982, forwarded the proposal to the Detaining Authority forpassing an order of detention against him. The Detaining Authority,on consideration of the materials placed before him, arrived at thesubjective satisfaction that the activities of the detenu areprejudicial to the maintenance of public order and thus, passed theorder of detention against the detenu. Aggrieved by the same, thepresent Habeas Corpus Petition is filed.5. Heard the learned counsel for the petitioner and the learnedAdditional Public Prosecutor for the respondents and perused thematerials. https://hcservices.ecourts.gov.in/hcservices/

6. Learned counsel for the petitioner submitted that thedetention order dated 15.11.2008 is vitiated for non-application ofmind, pre-determination and for non-supply of legible copies ofcertain documents. In support of his submissions, the learnedcounsel drew the attention of this Court to the arrest report, foundat page No.68 of the booklet, and submitted that in column No.4 ofthe same, it has been mentioned that the accused was taken intocustody on 04.11.2008 at 21.00 Hours, whereas in column No.6, it hasbeen mentioned that the detenu was sent to JM, Tambaram on05.11.2008. It has been further submitted that the discrepancy foundin the arrest report with regard to the dates mentioned in twodifferent columns, was not properly looked into by the detainingauthority before passing the detention order. The detainingauthority, without getting any proper explanation from the sponsoringauthority in this regard, has mechanically passed the order.Therefore, the order of detention is vitiated for non-application ofmind.7. The learned counsel would further submit that in the subjectcolumn in the special report submitted by the sponsoring authority tothe detaining authority on 13.11.2008, which is available at pageNo.95 of the booklet, it has been mentioned as follows:@ghh;itapy; fz;l tHf;Ffspy; rk;ge;jg;gl;l vjphpia jLg;g[f;fhtypy;itg;gjw;fhd jdp mwpf;if rkh;g;gpj;jy; ? rk;ge;jkhf@/The said version made in the subject column would show that there isa pre-determination as against the detenu to keep him under theGoondas Act. This pre-determination of the sponsoring authority hasnot been considered properly by the detaining authority. Therefore,the order is vitiated on this score also.8. It has also been submitted on the part of the petitioner thatthe sponsoring authority in their special report has mentioned thatthe bail applications in Crl.M.P.Nos.6109 of 2008 and 6108 of 2008were dismissed on 11.11.2008, whereas the dismissal orders found inpages 84 and 86 relating to Crl.M.P.Nos.6109 and 6108 of 2008, wouldclearly show that both the orders were passed on 10.11.2008 and noton 11.11.2008. This vital factor was not considered by the detainingauthority while passing the order of detention. This shows non-application of mind on the part of the detaining authority. 9. Learned counsel further submitted that the documents at pageNos.29, 30, 31, 32, 33, 35, 36, 37, 38 and 63 are illegible andunreadable. Though a request was made, clear copies were notfurnished, which caused prejudice to the detenu in making effectiverepresentation. Further the learned counsel for the petitioner https://hcservices.ecourts.gov.in/hcservices/ pointed out that no proper reply was also given in the counter filedby the respondents with regard to the grievance of the petitioner inrespect of furnishing of legible copies of documents.10. Further, learned counsel for the petitioner has pointed outthat in para 'K' of the counter affidavit filed by the detainingauthority, it was stated that the representation made by thepetitioner on 21.11.2008 was duly considered and rejected by thedetaining authority; but, subsequently, by way of additional counteraffidavit, the detaining authority admitted that the representationdated 21.11.2008 was received on 26.11.2008 and the order ofdetention was passed on 15.11.2008, all the materials taken intoconsideration for passing the order of detention were forwarded tothe Government for approval and moreover, the Government had approvedthe order of detention on 26.11.2008 itself and the representationwith the detailed remarks was sent to the Government and the same wasrejected by the Government on 08.12.2008. Thus, by pointing out theerror committed in the original counter, learned counsel for thepetitioner submitted that there is a total non-application of mind onthe part of the detaining authority right from the beginning.11. Learned Additional Public Prosecutor made his submission,countering the arguments advanced by the learned counsel for thepetitioner.12. On going through the arrest report, which is available atpage No.68 of the booklet, we find from column No.4 that the detenuwas taken into custody on 04.11.2008. In column No.6, namely, "HowDisposed of, with date & hour of disposed", it was mentioned that"Sent to JM, Tambaram 05.11.2008" i.e.next day. Therefore, we couldnot find any infirmity in mentioning two different dates, one forarrest and another for the date on which the detenu was sent tojudicial custody. Under such circumstances, the submission made bythe learned counsel for the petitioner that there is non-applicationof mind on the part of the detaining authority in mentioning twodifferent dates in the arrest report, is not an acceptable one.13. With regard to the other submission, namely, pre-determination, we are of the view that the sponsoring authority hasforwarded the special report dated 13.11.2008 only in order toprevent the detenu from acting in any manner prejudicial to thepublic order. Therefore, we do not find any error or mistake inmentioning the 'passing of detention order' in the subject column.Hence, we are negativing the submission made by the learned counselwith regard to the contention of pre-determination.14. Similarly, with regard to the mentioning of the date ofdismissal of the bail applications as 11.11.2008 instead of10.11.2008, cannot have any significance and on the whole it will be https://hcservices.ecourts.gov.in/hcservices/ considered only as a human error crept in while preparing the groundsof detention. 15. Coming to the contention with regard to the non-furnishingof legible copies of certain pages, it was submitted by the learnedAdditional Public Prosecutor that totally two representations weresent by the detenu, one on 21.11.2008 and another on 25.11.2008through his wife. In the first letter dated 21.11.2008, no grievancewas made with regard to illegible copies and only in the secondrepresentation, an allegation was made that certain pages of thebooklet were not legible. However, a proper reply was sent by theGovernment on 18.12.2008 in which it has been clearly stated that allthe copies are legible. 16. Further in this regard, learned Additional Public Prosecutordrew the attention of this court to each page and demonstrated thatall the copies are legible and readable. We have perused thedocuments and satisfied that the copies furnished to the detenu arelegible. Under such circumstances, we are not accepting thesubmission made by the learned counsel for the petitioner that thewas not able to make effective representation due to non-furnishingof legible copies.17. No doubt, as pointed out by the learned counsel for thepetitioner, in para "K" of the counter affidavit, an error has creptin while dealing with the disposal of the representation dated21.11.2008 sent by the detenu and it was subsequently rectified inthe additional counter affidavit. In our opinion, the flaws pointedout by the learned counsel for the petitioner would help this Courtto come to a conclusion that the counter was not properly drafted bythe respondents without taking any pain, but in no way they affectthe order of detention passed on 15.11.2008. Under suchcircumstances, we do not find any force in the submissions made bythe learned counsel for the petitioner to set aside the order ofdetention passed by the second respondent, namely, the detainingauthority and hence, for the reasons stated above, the habeas corpuspetition is liable to be dismissed.Accordingly, the habeas corpus petition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ glTo1. The Secretary to Government, Home, Prohibition & Excise Dept., Secretariat, Chennai-600 009.2. The Commissioner of Police, Chennai City Sub-Urban Area, St.Thomas Mount, Chennai-16.3. The Superintendent, Central Prison, Puzhal, Chennai-66.4. The Public Prosecutor, High Court, Madras.1 cc To Mr.S.Swamidoss Manokaran, Advocate, SR.7327. H.C.P. No.1925 of 2008PA(CO)RVL 11.03.2009