Kannada Prasad@ Prasad... v. The Secretary to Government,Prohibition & Excise Department,Secretariat, Chennai 600 009 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 16.02.2008Coram:-The Hon'ble Mr. Justice P.D.DINAKARANandThe Hon'ble Mr. Justice R.REGUPATHIHabeas Corpus Petition No.707 of 2007Kannada Prasad@ Prasad... Petitionervs.1. The Secretary to Government,Prohibition & Excise Department,Secretariat, Chennai 600 009.2. The Commissioner of Police,Chennai City, Egmore,Chennai 600 008.... RespondentsPetition under Article 226 of the Constitution of India for theissuance of a writ of habeas corpus to call for the records relatingto Detention Order No.135 of 2007, dated 03.04.2007, passed by theCommissioner of Police, Chennai, the 2nd respondent herein, set asidethe same, direct the respondents to produce the body of detenuKannada Prasad @ Prasad, S/o. Krishnamoorthy, aged about 45 years,the detenu, now confined in Central Prison, Puzhal, Chennai, beforeCourt and set him at liberty forthwith. For Petitioner: Mr.B.Kumar, Senior Counsel for Mr.S.Ramesh Babu For Respondents: Mr.N.R.Elango, Addl. Public Prosecutor.J U D G M E N TR.Regupathi, J. The petitioner herein challenges the impugned order ofdetention, dated 03.04.2007, in and by which, he has been detained as‘Immoral Traffic Offender’ as contemplated under the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders,Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/

2. The ground case occurrence, which led to passing of the orderof detention against the detenu, in brief, is narrated here-under:-One Simran @ Sajitha, a native of Mumbai, due to familycircumstances, left Mumbai and came to Chennai on 12.02.2007 insearch of livelihood. Under the guise of fetching employment, shewas taken to the detenu by one Seema. Sensing that she would besubjected to illegal activities/prostitution, she tried to escapefrom the detenu, who was sitting in a car along with his associates,whereupon, she was forcibly taken to a place at Neelankarai and keptin a room without food and water along with other girls. Ultimately,by pretending that she is willing to indulge in prostitution, shesomehow managed to get off. On 15.02.2007, in the morning, she wasstanding at K.K. Nagar Bus Stand, at which time, a police constablequestioned her and as she does not know Tamil, she was taken to thenearby police station for enquiry. On 16.02.2007, she was enquiredby the Central Crime Branch police and, after obtaining herstatement, the Inspector of Police registered a case in Central CrimeBranch X Crime No.84/2007, for offences punishable under Sections366, 366(A) and 120(b) IPC and 3(1), 4(1), 5(1) and 6(2)(A) of I.T.P.Act, and further investigation was set in motion. On 17.02.2007,when the police party led by the Inspector of Police, CCB, Team VII,were proceeding towards Radhakrishnan Salai, the detenu and hisassociate, on seeing them, uttered filthy language and startedhurling bottles against them and thereby created havoc at the spot.The police party arrested the detenu and subsequent thereto, hisconfession statement was recorded and ultimately, the provisions oflaw were altered as Sections 366, 366(A) and 120(b) IPC and 3(1), 4(1), 5(1) and 6(2) (A) of ITP Act and 294(b), 353 and 506 (2) IPC.The investigation disclosed that the detenu and his associates, underthe guise of getting employment and by giving false promise to fetchchance to act in films, deceived young girls and forced them intoprostitution and enticed the youth to indulge in immoral activities,thereby acted in a manner prejudicial to the maintenance of publicorder. The Detaining Authority, taking note of six adverse cases tothe credit of the detenu, clamped the order of detention, labellinghim as 'Immoral Traffic Offender'. 3. At the foremost, learned Senior Counsel by pointing out thefollowing aspects, viz.,(i) the detenu was actually arrested on 15.02.2007,however, in the grounds of detention, it is stated that he wastaken into custody on 17.02.2007 and remanded to judicialcustody on 18.02.2007;(ii) at the time of remand before the learnedMagistrate, a Memo was filed on behalf of the detenu, wherein,it is specifically stated that the detenu was illegallydetained from 15.02.2007 onwards and such Memo has beenreceived by the learned Magistrate and there is an endorsement https://hcservices.ecourts.gov.in/hcservices/ in the said Memo itself to that effect; and(iii) subsequent thereto, a pre-detention representation,dated 23.03.2007, has been sent by the detenu and it wasreceived on the same day;would contend that though the illegal detention of the detenu from15.02.2007 to 17.02.2007 has been stated rather in clear terms in therepresentation, the Detaining Authority has failed to take note ofsuch vital aspect while passing the impugned order of detention andthat, at any rate, it is a case where the detenu was kept in illegaldetention, which resulted in great prejudice to the detenu;therefore, the ultimate order of detention is liable to be quashed. 3-A. Per contra, learned Additional Public Prosecutor,referring to the grounds of detention, submits that amongst variousrelevant documents, the Detaining Authority has taken intoconsideration the representation of the detenu also and the same hasbeen mentioned as 5th item in the listed documents at page No.14 ofthe grounds of detention, of course, the date has been wrongly typedas 25.3.2007 instead of 23.3.2007. He specifically relied on thefollowing statement of the Detaining Authority at page No.15 of thegrounds of detention:-" In the representation Tmt. Latha has statedthat her husband Thiru Prasath @ Kannada Prasath wastaken into custody by the Central Crime Branchpolice on 15-2-2007 at 9.30 p.m. from Hotel Saveraand kept in illegal detention for 2 days and duringthe said illegal detention period police demanded topay money for releasing him and when she informedthat he had no money false cases were foistedagainst Thiru Prasath @ Kannada Prasath to detainhim under Goondas Act.Further she stated that her husband ThiruPrasath @ Kannada Prasath was put to harassmentduring the illegal detention and later on 18-2-2007he was remanded on a false case. Further she statedthat she apprehend false cases would be registeredagainst her husband to detain under Goondas Act andrequested to take action.I went through the records. Perusal of therecords shows that he recently come to adversenotice in 6 cases and in the ground case he wasfound acting in a manner prejudicial to themaintenance of public order. Further perusal of therecords shows that on 17-2-2007 at 10.00 hrs ThiruMurugan, Inspector of Police, Central Crime Branch,Team-VII who was assisting the investigation oninformation with the police party proceeded at https://hcservices.ecourts.gov.in/hcservices/ Radhakrishnan Salai and found Thiru Prasath @Kannada Prasath at Radhakrishnan Salai near SaveraHotel and was arrested and not earlier as alleged.Further, when he was produced before the learnedAddl. Chief Metropolitan Magistrate, Egmore, Chennaion 17-2-2007 he did not complained to the LearnedAddl. Chief Metropolitan Magistrate, Egmore aboutthe said illegal detention or registration of falsecase. ...... Further there are enough materialevidences available to show that the said ThiruPrasath @ Kannada Prasath was arrested only on 17-2-2007 at 10.00 hrs and not earlier. Hence I amsatisfied that the contentions found in thetelegrams and the representation are false and isgiven with ulterior motive to use as a defencedocument."4. On consideration of the rival contentions and upon perusingthe representation, dated 23.03.2007, which finds place at pageNo.451 of the Booklet supplied to the detenu, coupled with thegrounds of detention, we are of the considered view that theallegation made by the detenu that he was illegally kept in custodyfor two days, ie., on 15.02.2007 and 16.02.2007, has been taken noteof and in fact properly answered by the Detaining Authority in thegrounds of detention. Though the Memo filed in the court by thedetenu was not made available before the Detaining Authority alongwith the representation dated 23.03.2007, it is seen that thecontents of the Memo had been repeated in the representation. In theabove circumstances, the subjective satisfaction arrived at by thesaid authority cannot be questioned before this Court. Therefore,the ground raised by the learned Senior Counsel does not meritacceptance. 5. Learned Senior Counsel states that six cases have been listedas adverse cases and those cases have been relied on by the DetainingAuthority, but, there are materials to show that the petitioner isinvolved in some other cases on earlier occasions and when the detenuwas in judicial custody, a requisition was given by the SponsoringAuthority before learned VI Metropolitan Magistrate, Egmore, Chennai,for issuance of P.T. (Prisoner Transit) Warrant. He further statesthat in para No.4 of the grounds of detention, only listed cases havebeen taken into consideration and the Detaining authority made anobservation,'there is a real possibility that he (thedetenu) may come out bail'. By pointing out the above aspects, learned Senior Counsel argues thatthe Detaining Authority has failed to take note of all other pendingcases, in respect of which, the Sponsoring Authority filed arequisition for issuance of a P.T. Warrant. According to him, the https://hcservices.ecourts.gov.in/hcservices/ petitioner/detenu was presumed to be in judicial custody in respectof the cases mentioned in the requisition as well. 5-A. Answering the aforesaid contention, learned AdditionalPublic Prosecutor submits that those earlier cases referred to in therequisition made by the Sponsoring Authority had not been relied onas adverse cases in the grounds of detention; however, the factremains, the detenu was in judicial custody in the ground case on thedate of detention. He clarifies by stating that thepresence/appearance of the detenu before court is absolutelynecessary in respect of earlier pending cases on the adjourned datesof those cases and only for production of the detenu on those dates,P.T. Warrant was sought for and merely because of such requisition,it cannot be construed that the detenu was in judicial custody inthose cases also. 6. We have perused the requisition available at page No.17 ofthe Booklet which reads as follows:-" ghu;itapy; fz;l tHf;Ffspy; vjpup gpurhj; @fd;dl gpurhj; S/o. rPdpthrK:u;j;jp vd;gtu; jiykiwt[ Fw;wthspahf ,Ue;J tUfpwhu;/ jw;nghJ nkw;go gpurhj;(v) fd;dlgpurhj; vd;gtu; brd;id kj;jpa Fw;wg;gpupt[ Fw;w vz; 84-2007 tHf;fpy; brd;id kj;jpa Fw;wg;gpupt[ nghyPrhuhy; ifJ bra;ag;gl;L brd;id g[Hy; kj;jparpiwr;rhiyapy; ePjpkd;w ifjpahf cs;shu;/ ,tu;ghu;itapy; fz;l tHf;Ffspy; jiykiwt[ Fw;wthspahf ,Ug;gjhy; ,tUf;F nkw;go tHf;Ffspy; ePjpkd;wj;jpy; M$u;bra;a P.T. thuz;l; tH';Fk;go jhH;ika[ld;nfl;Lf;bfhs;fpnwd;/ " It is true that, in the grounds of detention, the Detaining Authoritydid not take note of the cases as mentioned in the requisition. Thefact remains, the detenu was not in judicial custody in respect ofthe listed cases in the requisition, however, he was shown asabsconding accused. Therefore, the possibility of the detenu comingout on bail by filing bail application for those cases need not betaken into consideration at all by the Detaining Authority. Thatbeing so, the contention of the learned Senior Counsel is liable tobe rejected.7. Learned Senior Counsel for the petitioner refers to anotherrequisition, available at page No.139 of the Booklet, made beforelearned XVII Metropolitan Magistrate, Saidpaet, Chennai, wherein,after stating that formal arrest has been made, issuance of P.T.Warrant with regard to cases in Crime Nos.33/06, 94/06 and 5/07 was https://hcservices.ecourts.gov.in/hcservices/ sought for by the Sponsoring Authority so as to produce the detenubefore the learned Magistrate for the purpose of remand on regularbasis. Relying on the said requisition, learned Senior Counselcontends that the detenu has been formally arrested in the aforesaidthree cases and the presumption thereon would be that the detenu isin judicial custody after 'formal arrest' and the DetainingAuthority, while arriving at the subjective satisfaction, should havealso mentioned those cases and made an observation as to thepossibility of his coming out on bail, and thereafter concluded oneway or other for detaining the detenu.7-A. Per contra, learned Additional Public Prosecutor submitsthat the requisition is only for issuance of P.T. Warrant andmentioning of 'formal arrest' would only mean, even before suchrequisition was made before the Magistrate, intimation was made bythe Sponsoring Authority to the detenu and such proceedings of theSponsoring Authority need not be taken into consideration inasmuch asthe detenu is already in custody with the police and therefore, theDetaining Authority must take into account the six cases as listed inthe grounds of detention for arriving at the subjective satisfaction,which exercise has been done properly by the said Authority.8. When a person is in judicial custody in a particular case andsuch person is required for production before the Magistrate in someother pending case, formal arrest is made and the same would beconstrued only as an intimation to the prisoner. The purpose ofrequisition is for production of the prisoner in the Court on P.T.Warrant. Even if such P.T. Warrant is issued against an accused, whohas already been released on bail on sureties having been furnished,the bail already granted to him cannot be mechanically cancelled andhe cannot be committed to judicial custody without following theprocedure contemplated in such cases. Simply because a requisitionhas been filed, it cannot be presumed that the detenu is in judicialcustody with reference to those cases also. Concededly, the detenuwas not in judicial custody in those cases. Therefore, we are of theopinion that the Detaining Authority need not take into considerationthose cases, wherein, he was not in judicial custody and therefore,the contention made by the learned senior counsel fails. 9. Net result, Habeas Corpus Petition is dismissed as devoid ofmerits. sd/-Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ JI.To1. The Secretary to Government, Prohibition & Excise Department,Secretariat, Chennai 600 009.2. The Commissioner of Police, Chennai City, Egmore, Chennai 600 008.3. The Public Prosecutor, High Court, Chennai.+1cc to Mr s.Ramesh Babu, Advocate, SR.No.8262 HCP No.707/2007.Rs [co]gkg/22.2