Arunachalam v. Chennai-9.2.The Union of IndiaRep. by its SecretaryMinistry of Home DepartmentDepartment of Internal

In the High Court of Judicature at Madras Dated: 14..7..2009Coram:The Honourable Mr.Justice ELIPE DHARMA RAOand The Honourable Mr.Justice R. SUBBIAHHabeas Corpus Petition No. 519 of 2008Arunachalam...Petitioner Vs.1.State of Tamil Nadu Rep. by the Secretary to Government Public (L&OP) Department Fort St. George, Chennai-9.2.The Union of IndiaRep. by its SecretaryMinistry of Home DepartmentDepartment of Internal SecurityKrish BhavanamNorth Block, New Delhi3.The District Collector and District Magistrate Theni... RespondentsPetition under Article 226 of the Constitution of India for theissuance of a Writ of Habeas Corpus to call for the records relatingto the order of detention No. 01/NSA/2008 dated 23.3.2008 in passedby the Second respondent herein and quash the same as illegal anddirect the respondents to produce the body of the person of thedetenu namely Mahalingam @ Nondi Mahalingam @ Palani @ Nondi Palani,now detained under Section 3(3) of the National Security Act, 1980 inthe Special Prison, Puzhal, Chennai, before this Court and set him atliberty.For Petitioner ..Mr. R. SankarasubbuFor RR 1&3..Mr. N.R. Elango, Addl.P.P. For R2 ..Mr. M. Gopikrishnan, SCGC https://hcservices.ecourts.gov.in/hcservices/ ORDER(made by ELIPE DHARMA RAO, J.)The petitioner, friend of the detenu - Mahalingam @ NondiMahalingam @ Palani @ Nondi Palani, challenges the order of detentiondated 23.3.2008 passed by the third respondent detaining him underSection 3(3) of the National Security Act, 1980 (Central Act 65/1980)read with the orders issued by the Tamil Nadu Government in G.O. Ms.No. 47, Public (Law & Order – F) Department dated 08.01.2008 after hewas identified as a CPI (Maoist) Extremist offender.2.Heard Mr. R. Sankarasubbu, learned counsel for thepetitioner, Mr. N.R. Elango, learned Additional Public Prosecutor forthe respondents 1 and 3 and Mr. M. Gopikrishnan, learned AdditionalCentral Government Standing Counsel representing the secondrespondent. 3.On information that the detenu Mahalingam @ Nondi Mahalingam@ Palani @ Nondi Palani along with four others, who are members ofCPI Maoist party, approached people staying in lonely houses andfarm houses armed with rifles and bombs for canvassing theirideologies based on armed revolution against the democratic rulingGovernments by forming people army and fighting against theGovernment by killing persons who protest their activities andcreating panic and fear among the public and distributed the partypamphlets to the people, on 19.12.2007 at 8.30 hours, the localPolice of Theni District and Special Task Force personnel surroundedthem, who stayed in a tent put by them in the sugarcane field of oneRaman and they attacked the Police party by throwing bombs and firingon them thereby causing injuries to 5 Special Task Force personnel asagainst which the Police party also opened fire on them after duewarning in which some of them sustained bleeding injuries. On thewritten complaint of the Inspector of Police, Special Task Force, acase was registered in Varusanadu Police Station Crime No. 111/07under Sections 143, 332, 307 IPC r/w Sections 3, 25(1-B) and 27 ofthe Arms Act, 1959, Sections 3 to 5 of the Explosive Substances Act,1908 and Section 17(1)(a) of the Criminal Law Amendment Act, 1908against the five accused. The secured Balamurugan and YogeshMadhan were produced before the Judicial Magistrate, Andipatty on20.12.2007 and were remanded to judicial custody. The injuredaccused Mahalingam, Muruganandam and Maruthu @ Leninkumar were alsoremanded to judicial custody on 20.12.2007 while they were undergoingtreatment in the Government Rajaji Hospital, Madurai. The seizedweapons were also produced before the Court of Judicial Magistrate,Andipatty and the case was transferred from the Superintendent ofPolice, Theni to the Inspector of Police, Q Branch CID for further https://hcservices.ecourts.gov.in/hcservices/ investigation. The accused Nondi Mahalingam was ordered underpolice custody from 31.12.2007 to 02.01.2008 and again, he wasproduced before the Designated Court No. II, Chennai, on 28.01.2008in Dharmapuri RP Cr. No. 80/92 under Sections 120(B) IPC, 3(2), 4 to6 of TADA (P) Act, 150(2)(A) of the Indian Railway Act, Sections 3 to5 of the Explosive Substances Act and 212 IPC till 27.02.2008 asharboured one Sundaramurthy, the proclaimed offender and wassubsequently remanded till 03.4.2008. The first respondentDistrict Collector and District Magistrate, Theni, on arriving atsubjective satisfaction that Mahalingam @ Nondi Mahalingam is amember of the banned CPI (Maoist) party and he along with hisassociate members of the Communist Party of India (Maoist) marchedon the Western Ghats with firearms and met the public canvassingtheir ideologies based on armed revolution and distributed theirparty pamphlets, found the compelling necessity to keep him underdetention as per the provisions of the National Security Act, 1980with a view to preventing him from indulging in such activities,which are prejudicial to the public order and accordingly, passed theorder of detention that is under challenge, on 23.3.2008.4.In the grounds of detention, the petitioner, among othergrounds, has mainly raised the following grounds :-(i)The detaining authority has not taken into considerationthe shooting of Policemen at the detenu and he sufferedbullet injuries.(ii) Remand in the hospital is illegal as the detenu has notrepresented his course.(iii)Delay over one month in considering the pre-detentionrepresentation vitiates the order of detention.(iv) The delay in passing the detention order vitiates thedetention.(v) There was no valid remand on 20.3.2008 in the ground case.(vi) Family members were not intimated, hence the detention isvitiated.(vii)There is no imminent possibility of his release on the nearfuture. Hence the detention is vitiated.(viii)The grounds of detention is vague as no sufficientmaterial aspects have been found and the detenu has beenprejudiced in making the effective representation. https://hcservices.ecourts.gov.in/hcservices/

5.Learned Additional Public Prosecutor has resisted theaforesaid grounds by placing the relevant materials and by filing thecounter.6.Insofar as the first ground to the effect that detenu wasnot taken care of after shooting is concerned, learned Addl. PublicProsecutor has stated that after the detenu had sustained injuries,he was immediately given first aid in the local Primary Health Centreand thereafter, treated at Medical College Hospital in Theni andsubsequently in Madurai Rajaji Government Hospital. Considering thesubmission of the learned Addl. Public Prosecutor, we do not thinkthe contention of the counsel for the petitioner is acceptable.7.Since the ground Nos.2 and 4 regarding remand goes to theroot of the matter, it can be dealt with at the later stage of thisjudgment.8.The next contention is delay in consideration of the pre-detention representation. From the records produced by the learnedAddl. Public Prosecutor, it is apparent that the pre-detentionrepresentation dated 21.02.2008 received from the wife of the detenuwas considered and rejected and reply of rejection was alsocommunicated by communication dated 20.3.2008. We do not find anydelay in disposal of such pre-detention representation.9.Next contention is regarding delay in passing the order ofdetention. It is contended by the counsel for the petitioner thatthough the detenu was arrested as early as on 19.12.2007, the orderof detention came to be passed after a period of three months i.e.,on 23.3.2008 and, according to him, the delay vitiates the order ofdetention. In support of the aforesaid contention, he has placedreliance upon the decision of the Supreme Court reported in (2006) 2SCC (Cri) 418 (RAJINDER ARORA v. UNION OF INDIA AND OTHERS).10.Learned Additional Public Prosecutor has tried to explainthe delay by stating that since the offences committed by the detenuare under the jurisdiction of various officials, it took time for thesponsoring authority to collect the documents and to submit theproposal. Moreover, he has stated that though the detenu wasarrested on 19.12.207, he was taking treatment till 29.12.2007 andfurther, he was under the custody of "Q" Branch till 02.01.2008 and,therefore, there was no delay.11.Taking into consideration the facts and circumstances ofthe case, we do not find there is any abnormal delay in passing theorder of detention and, therefore, this contention of the petitioneris liable to be rejected. The decision relied on by the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the petitioner in Rajinder Arora v. Union of India andothers [(2006) 2 SCC (Cri) 418] is not applicable to the facts of thepresent case. In the decision of the Supreme Court, the order ofdetention was passed belatedly after about 10 months of the raidwhereas in the present case, the order of detention was passed aftera period of about three months. The reasons for the delay as statedabove by the learned Addl. Public Prosecutor are convincing andtherefore, the contention of the petitioner on this score cannot beaccepted.12.Next it is contended that the family members of the detenuwere not communicated about the detention of the detenu. LearnedAddl. Public prosecutor has denied the aforesaid contention. Fromthe records produced by the respondents, it is apparent that the wifeof the detenu, namely, Smt. Vennila, was informed on 25.3.2008 and,therefore, this contention also fails.13.The penultimate ground raised by the learned counsel forthe petitioner is in respect of imminent possibility of releasing himon bail. From the records, it is apparent that on 20.3.2008, thedetenu's bail petition was considered and he was granted bail onexecuting a bond for a sum of Rs.5,000/- with two sureties. But, dueto non-production of sureties, the petitioner was not released onbail. Therefore, the contention of the learned counsel for thepetitioner that there was no imminent possibility of the detenu beingreleased on bail does not merit acceptance and it is liable to berejected.14.The last contention of the petitioner is that the groundsof detention is vague and in support of such conclusion, he hasplaced reliance upon the decision of the Andhra Pradesh High Courtreported in Pujarla Venkaiah v. District Magistrate, Nalgonda andanother [1981 ALTR 104].15.From a perusal of the grounds of detention, we do not thinkthe contention of the petitioner's counsel that the facts stated inthe grounds of detention are vague, can be accepted. It is wellsettled that the grounds of detention should be precise but notvague, pertinent but not irrelevant, proximate but not stale and theobject is to furnish the detenu all details to make an effectiverepresentation. In the present case, the petitioner has failed toestablish as to how he was prejudiced in making an effectiverepresentation. Therefore, the decision cited by the counsel for thepetitioner is not applicable to the present case. 16.The foremost and the ground on which the petitioner hasplaced strong reliance is relating to remand in respect of the detenuin the ground case. Learned counsel appearing for the petitioner has https://hcservices.ecourts.gov.in/hcservices/ contended that on 20.3.2008, though the detenu was directed to beproduced on 3.4.2008, the detenu was not produced and, therefore, theremand was not a valid remand. In support of the aforesaidcontention, learned counsel has placed strong reliance upon the FullBench decision of this Court reported in Hidaya Banu and another v.State of Tamil Nadu and others) [(2002) M.L.J. (Crl.) 608], includingthe decisions of this Court in (Elumalai v. State of Tamil Nadu and 2Others [1983 L.W. (Crl.) 121] and unreported decision in H.C.P.No.878of 2008, disposed on 30.9.2008. 17.In the Full Bench decision in Hidaya Banu's case (citedsupra), the detenu was not produced before the Court due to hisadmittance in the Government Hospital and remand was extended in hisabsence and, in the meantime, an order of detention was clampeddescribing the detenu to be a remand prisoner. The question posed onbehalf of the detenu before the Full Bench was whether at the time ofpassing the order of detention, the detenu was a "remand prisoner".The Full Bench, relying upon several decisions of the Supreme Courtas well as this Court, came to the conclusion that since the detenuwas not in actual remand, he should not be treated as a "remandprisoner" and on that ground, set aside the order of detention.18.In the present case, from the materials produced by thelearned Addl. Public Prosecutor, it is apparent that by letter dated19.3.2008, the Superintendent of Prisons had made a request to theremanding Court stating that as the Detenu has to be sent to theDesignated Court No.II, Tada Court, Chennai, on 20.03.2008, he couldnot be produced on 20.03.2008. Accepting such letter of theSuperintendent, remand was extended till 3.4.2008. It is not as ifwantonly or deliberately the detenu has not been produced before theremanding Court and, therefore, the ratio of the Full Bench decisionis not applicable to the facts of the present case.19.The unreported decision cited supra, which is passed basedon the Full Bench decision cited above, is also not applicable to thefacts of the present case for the same reasons.20.The facts in Elumalai's case (cited supra) are entirelydifferent to the facts of the present case as in Elumalai's caseremand was not extended due to want of escorts. But non-productionof the detenu in the present case is different as he has to beproduced before other Court. Therefore, the decision in Elumalai'scase is clearly distinguishable and not applicable to the presentcase.21.Learned Addl. Public Prosecutor by relying upon thedecisions of the Supreme Court reported in Raj Narain v.Superintendent, Central Jail, New Delhi [1970 SCC (Cr.) 543] andSandip Kumar Dey v. The Officer-in-charge, Sakchi P.S. And others https://hcservices.ecourts.gov.in/hcservices/ [1974 SCC (Cri) 435], stated that the order of remand passed withoutphysical production of the accused would not amount to become invalidand, therefore, the order of detention should not be interfered with.22.There is no quarrel on the principle that the order ofremand passed without physical production of the accused would notmake such order invalid. However, the order of remand should not bepassed mechanically. In the present case, the order of remand waspassed without the physical production of the accused for a validreason and, therefore, the contention of the petitioner that theremand is illegal or invalid cannot be accepted.23.The contention of the petitioner that the remand made whilethe detenu was in hospital is illegal, is only stated to be rejected.While the detenu was under treatment and undisputedly admitted as in-patient and not in a position to be produced before the Court, onmedical grounds, remand was extended. Learned Addl. PublicProsecutor has placed the relevant records before us to establishthat the detenu was not able to be produced on medical grounds. Weare satisfied that on medical grounds, the detenu was not producedbefore the Court for remand extension and, therefore, this contentionis rejected.24.Among other contentions, the learned counsel for thepetitioner has also contended that non-production of R.D.O. Report asit is a vital document, would vitiate the order of detention.Learned counsel has placed reliance upon a Full Bench of this Courtin (G. Kalaiselvi v. State of Tamil Nadu, Rep. by Government of TamilNadu, Home, Prohibition and Excise Department and another [2007(5)CTC 657]. 25.Learned Addl. Public Prosecutor has refuted the aforesaidcontention by stating that the report of the R.D.O. is neither arelied on nor referred to document and, therefore, it has norelevance to the detention order passed against the detenu. 26.In the Full Bench decision, the detenu has specificallyasked for a copy of the remand order and in the absence of non-furnishing a copy, the Full Bench has opined that non-production ofthe copy of the document would vitiate the order of detention. It isno doubt true that when the detenu has made any specific request forsupply of certain document, it is mandatory on the part of theappropriate authority to furnish copy of such document. In thepresent case, the report of the R.D.O., Periyakulam, is not a reliedon or referred to document and moreover, the detenu has not made anyspecific request and further, the R.D.O. Report has no relevance tothe order of detention and, therefore, the contention of thepetitioner is liable to be rejected. https://hcservices.ecourts.gov.in/hcservices/ For the aforesaid reasons, we do not find any ground tointerfere with the order of detention and the Habeas Corpus Petitionis liable to be dismissed and accordingly, it is dismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrargri1.The Secretary,Public(Law & Order) Department,Fort St.George,Chennai-600 009.2.The Secretary,Ministrhy of Home Department,Department of Internal Security,Krish BhavanamNorth Block, Neaw Delhi.3.The District Collector and District Magistrate Theni District, Theni.4.The Superintendant, Spl. Prison, Puzhal, Chennai.5.The Public Prosecutor, High Court, Madras.H.C.P. No. 519 of 2008pkb(co)pmk.20.7.2009.