Jayagopi @ Gopi v. State of Tamil Nadu

In the High Court of Judicature at Madras Dated: 25.02.2009Coram:The Honourable Mr.Justice ELIPE DHARMA RAOand The Honourable Mr.Justice R.SUBBIAH Habeas Corpus Petition No.2037 of 2008Jayagopi @ Gopi..PetitionerVs.1. State of Tamil Nadu rep.by its Secretary to Government, Home, Prohibition & Excise Dept., Fort St.George, Chennai-600 009.2. The Commissioner of Police, ChennaiPolice, Chennai-8...RespondentsPetition filed under Article 226 of the Constitution of India,for the issuance of a Writ of Habeas Corpus, to call for the entirerecords relating to the petitioner's detention under Tamil Nadu act14 of 1982 vide detention order dated 12.09.2008 on the file of the2nd respondent herein made in proceedings No.308/BDFGISSV/2008 andquash the same as illegal and consequently direct the respondentsto produce the said petitioner namely Jayagopal @ Gopi, son of VeluNayakkar, aged 22 years, before this Court and set the petitionerat liberty from detention, who is now detained in Central Prison,Puzhal, Chennai-66.For Petitioner ..Mr.C.C.ChellappanFor Respondents ..Mr.N.R.Elango, Addl.P.P.,R.SUBBIAH, J.,The petitioner challenges the impugned order of detention,dated 12.09.2008, clamped on him, by the 2nd respondent, brandinghim as 'Goonda' as contemplated under Section 3(1) of the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders,Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (TamilNadu Act 14 of 1982). 2. For clamping the detention order, the detaining authorityhas relied upon two adverse cases, namely, Crime No.252 of 2008 onthe file of P-3 Vyasarpadi Police Station for an offence punishableunder section 392 IPC and Crime No.611 or 2008 on the file of P-6Kodungaiyur Police Staiton for the offences punishable undersections 294(b), 427 and 506(2) IPC and one ground case. Theallegations with regard to the ground case, as stated in thegrounds of detention, are as follows:The complainant Jayanathan, the Sales Manager ofM/s.Tirunmala Milk Production Private Limited Company atAnna Nagar used to distribute milk in the early morning totheir agents at Pulianthope, Pattalam, Choolai andKannikapuram areas and collect money from the agents. On19.08.2008 at 2.00 Hours, the complainant distributed themilk sachets to his agents and also collected the moneytotalling to Rs.1,08,618/- from them at 09.30 Hours andwas proceeding in his Swaraj Mazda lorry bearingregistration No.TN 20 X 0657 to Kannadhasan NagarThirumala Milk Depot, with the driver Sathish and oneMaharajan, helper. While he was on the way at MullaiNagar burial ground bridge at 10.00 Hours, the detenucame in a motor cycle accompanied with Raghu and Nagaraj,overtook the said lorry and by keeping the motor cyclebefore the lorry made to stop the lorry. The said Raghuand Nagararaj, questioned the complainant and others asif they hit the detenu's motorcycle. The complainantdenied the same and asked his driver to move the vehicle.Immediately the said Nagaraj, got into the lorry andpulled the complainant and the helper from the lorry andthe complainant fell down. At that time, one of theassociates Raghu got into the vehicle and took away theplastic bag, in which the complainant had keptRs.1,08,618/- and got down from the lorry and left bygetting on to the motor cycle which was kept ready by thedetenu. When the complainant caught hold of the legs ofNagaraj, he took out a knife and cut the complainant overhis head and kicked on his stomach. When he shouted forhelp, a huge crowd gathered at the spot for his rescue. Onseeing this, the detenu, his associates and the driverSathish, threatened the public stating that if theyapprehend them, they have to face dire consequences andpicked up stones from the roadside and pelted the sameagainst the public. The stones scattered all over theroad side and the normalcy in that area was totally https://hcservices.ecourts.gov.in/hcservices/ dislocated and taking advantage of the panic situation,the detenu, his associates and the driver Sathish escapedfrom the spot. The complainant was admitted for treatmentas inpatient in the Stanley Hospital. On receipt of thesaid information from the hospital, the Inspector ofPolice proceeded to the hospital and examined thecomplainant, and registered a case in Crime No.392 of2008 on the file of P-5, MKB Nagar Police Station, for anoffence punishable under Section 394 IPC. The Inspector ofPolice visited the spot, prepared observation mahazar andseized the stones scattered on the road side under a coverof mahazar. He recorded the statements of the witnesses.The detenu was arrested on 21.08.2008 at 16.00 hours,whereupon, his confession statement was recorded. Thesection of law was altered into sections 394, 397 and 120B IPC. In view of the above, the sponsoring authority, byconcluding that the detenu is a habitual offender and hasacted in a manner prejudicial to the maintenance of publicorder and as such he is a "Goonda", as contemplated underSection 2(f) of the Tamil Nadu Act 14 of 1982, sponsoredthe proposal before the Detaining Authority for passing anorder of detention against him. The Detaining Authority,on consideration of the materials placed before him,arrived at a subjective satisfaction that the activitiesof the detenu are prejudicial to the maintenance of publicorder and thus, passed the order of detention against thedetenu. Aggrieved by the same, the present Habeas Corpus Petition is filed.3. Heard the learned counsel for the petitioner and thelearned Additional Public Prosecutor for the respondents andperused the materials.4. Learned counsel for the petitioner submitted that thedetention order dated 12.09.2008 is vitiated on the followinggrounds: (i) In the grounds of detention pertaining to theground case, it is stated that the Inspector of Policevisited the spot, prepared the observation mahazar andseized the stones scattered on the road side under thecover of mahazar. But, this copy of the mahazar, whichwas referred to in the grounds of detention order,prepared under Form-95, was not furnished to him.Therefore, due to non-supply of material document, thedetenu was not in a position to make an effectiverepresentation.(ii) Though the detenu was arrested on 21.08.2008 at16.00 Hours, he was produced before the V MetropolitanMagistrate Court, Chennai on 22.08.2008 at 5.50 PM, which https://hcservices.ecourts.gov.in/hcservices/ could be evident from the remand report, which isavailable at page 156 of the booklet. Since the detenuwas not produced before the Court within 24 hours fromthe time of arrest by the sponsoring authority, there isa violation to the rights protected by the Constitutionof India. (iii) It has been stated in the First InformationReport pertaining to the ground case that the complainantwas attacked by the identifiable unknown persons, but inthe accident register copy, which is available at page 16of the booklet, it has been stated that he was attackedby three unknown persons. This contradiction was notproperly considered by the detaining authority beforepassing the order of detention. Therefore, the detentionorder is liable to be set aside on the ground of non-application of mind on the part of the detainingauthority while passing the order of detention.(iv) In the first information report pertaining tothe ground case,the weapon used by the detenu wasdescribed as 'knife'. But in the accident register,available at page 16 of the booklet, the weapon isdescribed as 'Aruval'. The detaining authority withoutnoticing the discrepancy relating to the weapon, passedthe detention order.(v) A reading of the adverse cases and the groundcase would show that the allegations made in the saidcases would not amount to breach of public peace. Undersuch circumstance, the subjective satisfaction arrived atby the detaining authority that the detenu has acted in amanner prejudicial to the maintenance of public order isnot correct. Hence, on those grounds, the detention orderis liable to be set aside.5. Per contra, the learned Additional Public Prosecutorsubmitted that, (i) since a reference has been made with regard tothe cover of seizure under Form No.95, it does not meanthat the said document was relied upon by the detainingauthority to arrive at a subjective satisfaction.Further, under the cover of seizure, only stonesscattered on roadside were seized. Hence, the non-supplyof said document will not affect the rights of thedetenu in making effective representation, particularly,when all the relevant materials pertaining to the groundcase and the adverse case were furnished to him. (ii) With regard to the remand of detenu, it issubmitted that though the detenu was arrested at 4.00 PMon 21.08.2008, he was produced before the learnedMagistrate on the next day evening by 5.50 PM, it has https://hcservices.ecourts.gov.in/hcservices/ been submitted that no doubt, there is a delay of onehour, but this delay of one hour is very insignificantin nature. Further, it is pointed out by the learnedAdditional Public Prosecutor that though the detenu wasbrought to the Magistrate Court within 24 Hours, he wasproduced before the Magistrate after the regular courtproceedings were over. Therefore, on this process,there could be a slight delay, which would not affectthe fundamental rights of the detenu in any way.(iii) There is no contradiction in the statement ofthe complainant between the first information report andthe accident register copy. In the first informationreport, it has been stated that the complainant wasattacked by the identifiable, but unknown persons thoughin the accident register, it is mentioned as threeunknown persons and since both are conveying the samemeaning, there is no contradiction. (iv) With regard to the description of weapon in thefirst information report and the accident register, itis submitted by the learned Additional Public Prosecutorthat the correctness of the factual aspect found in thedocument would not deter the detaining authority inpassing the detention order when all the other materialswould show that he is a habitual offender.(v) A reading of the adverse cases and the groundcase would show that due to the criminal activities ofthe detenu, a panic feeling of fear was created in theminds of the public. Therefore, it cannot be said thatthere is no breach of public order. Hence, the order ofdetention is sustainable in law.6. With regard to the non-supply of the copy of seizuremahazar, we are of the view that the detaining authority, on goingthrough the entire materials placed before him pertaining to theground case registered in Crime No.392 of 2008 only, arrived at thesubjective satisfaction and it cannot be said that the subjectivesatisfaction was arrived at by the detaining authority by solelyrelying upon Form No.95. As stated by the learned PublicProsecutor, only a passing reference was made in the detentionorder about the cover of mahazar, which could be inferred by thedetaining authority from the other available materials. Therefore,non-supply of the copy of seizure mahazar will not affect therights of the detenu in making effective representation.7. Coming to the alleged delay in producing the detenu, we areof the view that though there is a delay of one hour in producinghim before the Magistrate, as stated by the learned PublicProsecutor, the entire materials available on record would showthat the detenu was brought to the court next day evening and he https://hcservices.ecourts.gov.in/hcservices/ was produced before the Magistrate after other court proceedingswere over, since normally such miscellaneous works would be takenup after the regular court proceedings are completed. Under suchcircumstance, we do not find any violation of Constitutionalrights, as has been argued on behalf of the detenu. Further, we donot find any contradiction with regard to the version of details ofidentification of the persons by the complainant in between thefirst information report and the accident register since both theterms "identifiable, but unknown persons" and "unknown persons",would mean the same. With regard to the contradiction found in thediscrepancy of weapon between the first information report and theaccident register, we are of the view that the said contradictionfound in the documents related to the factual aspect of a cuttingweapon and that too, there is no change in the nature of theweapon, since knife and Aruval make no much difference. Thecorrectness of the factual aspect in each of document need not begone into in detail by the detaining authority when other availablematerials are sufficient for the detaining authority to arrive atthe subjective satisfaction that the detenu is a habitual offender.8. Further, as stated by the learned Additional PublicProsecutor, all the cases relied upon by the detaining authoritywould undoubtedly show that the action of the detenu and hisassociates would have definitely created alarm and a feeling ofinsecurity in the minds of the people of that area. Further more,the occurrence took place in broad day light in a busy localitycreating panic in the locality. Therefore, we are not inclined toaccept the submission made by the learned counsel for thepetitioner that there was no breach of peace. Under suchcircumstance, we do not find any force in the submissions made bythe learned counsel for the petitioner and hence, for the reasonsstated above, the habeas corpus petition is liable to bedismissed.Accordingly, the habeas corpus petition is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gl https://hcservices.ecourts.gov.in/hcservices/ To1. 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-8.3. The Superintendent, Central Prison, Puzhal, Chennai.4. The Public Prosecutor, High Court, Madras.1 cc to Mr.C.C. Chellappan, Advocate, SR. 7240 H.C.P. No.2037 of 2008CK (CO)kk 3/3