Varadan @ Varadarajulu v. The District Collector and The District Magistrate KancheepuramDistrict of Kancheepuram

In the High Court of Judicature at MadrasDated: 17.9.2008Coram:The Honourable Mrs.Justice Prabha SridevanandThe Honourable Mr.Justice V.Periya KaruppiahH.C.P.No.227 of 2008Varadan @ Varadarajulu .. Petitionervs.1. The District Collector and The District Magistrate KancheepuramDistrict of Kancheepuram2.The Secretary to the GovernmentGovernment of Tamil Nadu(Home) Prohibition and Excise DeptFort St.George, Chennai – 600 009 .. RespondentsHabeas Corpus Petition filed under Article 226 of theConstitution of India, for a writ of habeas corpus directing therespondent to call for the entire records of the first respondentherein concerned BDFGISSV No.05/08 dated 8.1.08 setting aside theorder of detention passed therein by the first respondent hereinagainst the detenu by name Varadhan @ Varadarajulu aged about 28years S/o. Rajaram and setting him at liberty now detained in CentralPrison, Puzhal, Chennai.For petitioner : Mr. B.Kumar, Senior Counsel for Mr. T.R. RaviFor respondents : Mr.P.Kumaresan, Addl.P.P.Order(The Order of the Court was made by Prabha Sridevan,J)The petitioner himself has filed this habeas corpus petitionagainst the order of detention passed in BDFGISSV No.05/08 dated8.1.08 branding him as Goonda. From the grounds of detention it isseen that the petitioner came to adverse notice in Crime No.635 of2007 (Chengalpattu Taluk Police Station) in respect of an occurrencewhich took place on 17-11-2007 for which the above case has been https://hcservices.ecourts.gov.in/hcservices/ registered under Sections 147, 148, 341, 324, 307, 302 r/w 3(1) TamilNadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act14 of 1982). The ground case relates to an occurrence that tookplace on 20-11-2006 where the Inspector of Police who was patrollingto nab the detenu and his associates who were all involved in theearlier offence namely the Cr.No.635 of 2008 caught the accused red-handed and on the complaint given by the Inspector of Police on 20-11-2007, a case was registered with Palur Police Station Cr.No.210 of2007 for offences under Sections 147, 148, 332, 307 IPC and 25(1)(a)Arms Act. The arrest of the detenu was intimated to the familythrough telegram on the same day. On 21-11-2007 the detenu wasproduced before the Judicial Magistrate I and II, Chengalpattu and hewas ordered to be remanded to judicial custody upto 05-12-2007. Thedetaining authority was satisfied that the detenu had to be detainedin order to prevent him from indulging in further activities inaccordance with the provisions of Public Tranquility and offencesagainst human body and had to be detained in accordance with theprovisions of Tamil Nadu Act 14 of 1982. 2.The learned Senior counsel appearing for the petitionerraised several grounds. He submitted that there is a vitaldiscrepancy between the grounds of detention in English and in Tamil.In Paragraph No.4 it is stated that, "He is involved in robbery and murder of two personsand he is acting against public order and peace."whereas in Tamil version,@vdnt jpU/tujd; (v) tujuh$%Y bjhlh;e;J bghJ mikjp. bghJ xG';F.bghJ kf;fis kpul;LtJ. ,ul;il bfhiy Mfpa rl;ltpnuhjkhd Fw;w';fspy;<Lgl;ljd; K:yk; bghJ xG';F guhkhpg;gpw;F Fe;jfkhd tifapy; bray;gl;L tUfpwfhuzj;jhy; mth; jkpH;ehL rl;lk; 14-1982 gphpt[ (2) (vg;) d; go mth; xU@Fz;lh;@ vd;gij ehd; kdjhu mwpfpnwd;/@The learned Senior counsel submitted that the word "robbery" has notbeen translated in the Tamil version and this has affected the rightsof the detenu. The detaining authority had considered theinvolvement of the detenu in the offence of robbery and if it was oneof the grounds which persuaded him to pass the detention order thenthe detenu who is familiar only with Tamil language is entitled toknow the same. The imperfect translation would vitiate the detentionorder. https://hcservices.ecourts.gov.in/hcservices/

3.(i) The learned Senior counsel submitted that neither in theground case nor in the adverse case nor in the materials produced isthere anything to show that the offence of robbery was in factcommitted by the detenu or that he was involved in robbery.Therefore, the conclusion of the detaining authority that he wasinvolved in robbery is not based on any material and the detentionorder suffers from non-application of mind. For this he relied onMrs. Seematti V. Secretary, Govt. of T.N., Home Deptt. And others(2005 Cri.L.J. 738). (ii) Next the learned Senior Counsel submitted that thereare several grammatical errors in the detention order in Englishwhich would show that the detaining authority had not applied hismind to the grounds of detention. It is not sufficient that thedetaining authority has applied his mind while passing the order ofdetention. He should have applied his mind on the grounds ofdetention also. If the grounds of detention is merely a repetition ofwhat the Sponsoring authority has said then the order of detentionsuffers from non-application of mind. For this he relied on RajeshVashdev Adnani Vs. State of Maharashtra (2005 8 SCC 390)."6. Mr Mukul Rohatgi, learned Senior Counsel appearingon behalf of the appellant contended that from a perusal ofthe impugned order, it would appear that the same is almostthe verbatim production of the proposal made to thedetaining authority by the sponsoring authority only byaltering the word “he” with “you”. With a view toappreciate the aforementioned contention of the appellantwe may extract the following from the order of detention:“That you does not have a ration card; that you travelsfrequently to Hong Kong, Singapore, United Kingdom andsometimes to Phillippines; that you arranges and organisestours for Asians; that you does not have a tour operatorlicence; that you assists your tourists in shopping andsight seeing; that you does not pay any tax in India; thatyou does not have any vehicle in India or abroad; that youare a Green Card-holder at Hong Kong; that you travel to-and-fro from Hong Kong many times; that you are holder ofGold Card issued by Air India as you are their frequentflier; that your Gold Card number is 043809; that you havea mobile phone at Hong Kong; that your Singapore mobilenumber is 90448535; that no case by Indian Customs orPolice has been booked against you; that no cases arebooked against you abroad; that you have travelled to HongKong and Singapore only from Mumbai Airport; that wheneveryou come from Hong Kong and Singapore and if you haveforeign currency you declare the https://hcservices.ecourts.gov.in/hcservices/ same at Customs Counter and obtains Currency DeclarationForm (CDF); that when you return back you take the foreigncurrency and submits the CDF at the Customs Counter and theCustoms retain the CDF that you have taken the CDF on 4-5previous occasions.”"(iii)Next the learned Senior counsel submitted that thetelegram intimating the factum of arrest to the petitioner's familymembers/next friend does not show the date of remand or the placewhere he has been remanded and this would violate to the directionsgiven by the Supreme Court in D.K. Basu Vs. State of West Bengal(1997 SCC (Crl) 92). Among those guidelines Clause No.4 is relevantand reads as follows:"(4) The time, place of arrest and venue of custody ofan arrestee must be notified by the police where the nextfriend or relative of the arrestee lives outside thedistrict or town through the Legal Aid Organisation in theDistrict and the police station of the area concernedtelegraphically within a period of 8 to 12 hours after thearrest."(iv)Next the learned Senior counsel submitted that as regardsthe question is whether the detenu is a habitual offender or not,there is nothing to show that the detenu is a habitual offender. Thenthe satisfaction of the detaining authority that the detenu should bedetained is not based on any materials. For this, he relied on Vijaynarain Singh V. State of Bihar (AIR 1984 SC 1334) and the followingparagraph is relevant."Because the idea of “habit” involves an element ofpersistence and a tendency to repeat the acts or omissionsof the same class or kind, if the acts or omissions inquestion are not of the same kind or even if they are ofthe same kind when they are committed with a long intervalof time between them they cannot be treated as habitualones."4.(i) The learned Additional Public Prosecutor submitted thatsince the occurrence in the adverse cases and the ground case aredescribed in detail, the mere fact that there is some difference inthe English and Tamil version is not material. The detenu knew whatweighed in the detaining Authority's mind. (ii) Next the learned Additional Public Prosecutor produced theaffidavits of the sponsoring authority to show that it is notrepeated verbatim by the detaining authority and therefore,it is nota mechanical reproduction as in the case cited by the learned Senior https://hcservices.ecourts.gov.in/hcservices/ Counsel. He also submitted that minor grammatical mistakes cannotvitiate the order of detention. As regards the violation of D.K.Basu's guidelines, the learned Additional Public Prosecutor wouldsubmit that immediately after the arrest, the telegram was sent andon that date he was not actually remanded to judicial custody andtherefore, if the place of custody is not intimated in the telegramit was because he had not yet been remanded. Therefore, the order ofdetention deserves to be confirmed. 5.We have considered the oral submissions of both theparties. It is clear from the extracts of Paragraph No.4 of thedetention order in English that the conclusion of the detainingauthority is that the detenu is involved in robbery. But this was notcommunicated to the detenu in Tamil. There is a Tamil equivalent forthe word "robbery" it is "bfhs;is@/ This is not found in the Tamilversion. Therefore, any representation that the detenu could havemade on this question was denied to him because he was not put onnotice that the detaining authority had come to the conclusion thathe was involved in robbery. 6.Next, neither in the adverse case nor in the ground case dowe find anything to show that the detenu had committed the offence ofrobbery. So the basis on which the detaining authority was satisfiedthat the detenu was involved in robbery is not before us and thebasis on which he came to the conclusion was also not made known tothe detenu. It is futile to say that if the detenu was not involvedin the offence of robbery there is no need to produce any materialsreferring to such offer because the order of detention clearly showsthat the detaining authority was satisfied that he was involved inrobbery. If he was actually involved in the commission of robbery,the materials to support it should be made available to the detenu.They have not been made available. If he was not actually involvedin robbery, then the finding that he was involved, in the Englishversion, is the result of non-application of mind. So whichever welook at it, the order of detention is vitiated. 7.In Elasu v. District Collector & DM, T.N.,(2005) 10 SCC 145,at page 146 it is held as follows:"4. It is the contention of the appellant that thealleged confessional statement has not been supplied to himin spite of request made in that behalf. The High Courtafter perusing the material papers supplied to the detenumade an observation that the confessional statement was infact made by the first accused, namely, Vaithi i.e. thebrother of the detenu and based on his statement theweapons were recovered under a mahazar. The High Court thenobserved thus: https://hcservices.ecourts.gov.in/hcservices/ “Inasmuch as the petitioner, who is a detenu has notmade any confessional statement, there is no question ofsupplying copy of the same to him. Though the confessionwas made only by A-1 and the weapons were recovered basedon the same as well as copy of the statement and mahazarwere supplied to the detenu, we are of the view that thereis no infraction or violation of any of the statutoryprovisions. In such a circumstance, we reject the secondcontention also.”5. The counter-affidavit filed by the DistrictMagistrate also reveals that there was no confessionalstatement by the detenu either admitting the guilt orleading to the recovery of incriminating objects used inthe crime. If that be the case, the statement in thedetention order extracted above cannot be correct. Makingof confession by the detenu is evidently one of the crucialfactors that was taken into account by the detainingauthority. Once that fact is found to be non-existent, thesatisfaction of the District Magistrate under theprovisions of the aforesaid Act is vitiated. This ground issufficient to quash the detention order. Accordingly, theappeal is allowed and the appellant shall be set at libertyforthwith unless required in any other case."8.In Bablu Das v. State of W.B., (1975) 4 SCC 108, at page 109it is held as follows:"2. We have seen from the said biodata that, apart fromthe single incident of crime which was communicated as aground to the detenu, there is also a series of otherinjurious circumstances of the immediate past about thecriminal antecedents of the detenu which were notcommunicated. Indeed, this chain of facts explain why in thecounter affidavit it has been stated that:“The petitioner is a notorious wagon-breaker andrailway criminal and was indulging in committing thefts fromgoods train.For one thing, a “notorious” wagon-breaker implies acourse of conduct and not a single instance. For another,the factors which make up the notoriety and which arerecited in the history sheet presented to the DistrictMagistrate certainly must have induced him into thesubjective satisfaction resulting in the detention. Theywere not communicated. The consequence is that the order isin violation of the constitutional provision in Article 22(5) and is bad. For this reason, the rule is made absoluteand the petitioner is directed to be released forthwith." https://hcservices.ecourts.gov.in/hcservices/

9.Applying these decisions, if on facts, the allegation isthat he was involved in robbery, if the materials to show that he wasinvolved in robbery is non-existent, then the satisfaction of thedetaining authority is vitiated as seen from Elasu's case above. Ifindeed there was material to show that he had involved in robberywhich had induced the detaining authority into the subjectivesatisfaction resulting in detention, then that material was notcommunicated or made available to the detenu and this vitiates thedetention order. Therefore, whichever way we look at, the impugnedorder suffers from illegality and hence the same is quashed and thehabeas corpus petition is allowed. The detenu Varadhan @ Varadarajuluis directed to be set at liberty forthwith unless his presence isrequired in any other case. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.glpTo1. The District Collector and The District Magistrate KancheepuramDistrict of Kancheepuram2.The Secretary to the GovernmentGovernment of Tamil Nadu(Home) Prohibition and Excise DeptFort St.George, Chennai – 600 0093. The Superintendent,Central Prison, Puzhal, Chennai.4.The Joint Secretary to Government,Public Law & Order, Fort Saint George, Chennai-9.5. The Public Prosecutor, High Court, Madras.H.C.P.No.227 of 2008MG {CO}TP/6.10.08