IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.09.2008 CORAM THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH H.C.P.No.292 of 2008 Smt.Samsath Begum W/o Abdulla Kader Gani .. Petitioner -Vs- 1. The State of Tamil Nadu represented by the Secretary to the Government Public (SC) Department Fort St.George Chennai 600 009 2. The Union of India represented by the Secretary to the Government Ministry of Finance Department of Revenue Cofeposa Unit, New Delhi 3. The Superintendent of Central Prison Central Prison, Puzhal Chennai 600 066 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for the records relating to the detention order in G.O.No.S.R.1/1188-5/2007 dated 18.01.2008 passed by the first respondent herein and quash the same and direct the respondents to produce the body of the peson of the detenu namely Abdulla Kader Gani, son of Abdulla, aged about 34 years, petitioner's husband before this Hon'ble Court now detained under Sec.3(1)(i) of the COFEPOSA Act in the Central Prison, Puzhal, Chennai and set him at liberty. For Petitioner :: Mr.S.Palanikumar For Respondents :: Mr.P.Kumaresan Addl. Public Prosecutor ORDER
(Order of the Court was delivered
by PRABHA SRIDEVAN, J.)
The wife of the detenu has filed this habeas corpus petition. The main contention raised by the learned counsel for the petitioner is that the retraction of the confessional statement by the detenu in the bail application was not considered by the detaining authority while passing the detention order and he relied on several judgments in support of his contention. The learned Additional Public Prosecutor for the respondents prayed for time for filing counter affidavit. We had already given time to file the counter affidavit but, yet, if the materials before us were not sufficient, we would still have granted time notwithstanding the strong objection by the learned counsel for the petitioner. But in this case, the paper-book produced and the detention order are sufficient for us to arrive at our conclusion and, therefore, we have dealt with the matter without the counter.
2. In the bail application filed on 6.12.2007, the detenu had stated as follows:-
“The petitioner/accused further respectfully submits that though the petitioner was ready to make proper declaration and pay the appropriate duty but the officers did not hear his words, further they recorded the statement from him by way of third degree method and hence he retracted his confessional statement given before the officers.”
3. According to the learned counsel for the petitioner, this itself would indicate retraction, whereas the learned Additional Public Prosecutor submitted that the statement in the bail application would indicate that there was a separate retraction or it referred to a past event. On the other hand, there is no such material on record. The learned Additional Public Prosecutor also submitted that even when the detenu was produced before the Magistrate, he had not complained of any third degree method used to obtain the confessional statement and, therefore, the fact that the detaining authority had not referred to the retraction would not vitiate the order of detention.
4. In the decision in Arun Kumar Soni v. Union of India represented by Secretary to Government, Ministry of Finance, Department of Revenue, New Delhi reported in 1992 L.W.(Crl.) 170, a Division Bench of this Court held that the detaining authority should be alive to the fact of retraction of confessions when confessions are taken note of to arrive at the subjective satisfaction. In that case the bail application had not been taken note of in the context of the retraction contained in it and the Division Bench observed that once the confession is sought to be used, the detaining authority must be aware, if the confession is retracted. In spite of retraction, it may still be possible for the detaining authority to arrive at a subjective satisfaction…..but after being alive to the said fact. The Division Bench referred to the decision of the Supreme Court in Mohd.Toufeek Mohd.Mulaffar v. The Addl.Secretary to Govt.of Tamil Nadu (W.P.No.(Crl.) 602 of 1989), where it was held that nowhere in the grounds of detention do we find application of mind to the fact that the vital confessional statement considered to be a voluntary one had in fact been retracted. In K.Satyanarayan Subudhi v. Union of India and others reported in AIR 1991 SC 1375, the Supreme Court held that the non-placement of the retraction of the confessional statement and the non-consideration of the same would vitiate the order of detention.
5. In Saira Zackira v. Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi and another reported in (2004) M.L.J.(Crl.) 290, the Division Bench considered all the cases which deal with the retraction and “it was observed therein that the detenu, in his bail application, has clearly stated that the statement obtained from him on 19.3.2002 was a statement obtained by force and at the dictates of the officers. He has further stated that he was threatened that if he did not give the statement as per the dictation, he would be arrested and that therefore, he gave the said statement. This is a clear retraction of the detenu from his statement dated 19.3.2002.” Therefore, if in the bail application there are averments to indicate that the confessional statement was not voluntary, that itself amounts to retraction.
6. In the Full Bench decision in Roshan Beevi and others v. Joint Secretary to Government of Tamil Nadu and others reported in 1984 Crl.L.J. 134, Their Lordships specifically referred to the confessional statement obtained by third degree methods and that in such circumstances, the acceptability and reliability of such involuntary confession would not arise.
7. In the present case, in the bail application it is stated that the confessional statement was obtained by third degree methods. Therefore, according to the judgments referred, that itself amounts to retraction because it would indicate that it was not a voluntary statement. The detaining authority had clearly referred to the alleged voluntary statement given by the detenu in paragraph-1(ii) of the grounds of detention and again in paragraph-1(vii) the detaining authority refers to the corrigendum to the voluntary statement. Therefore, it is clear that the detaining authority had the confessional statement in mind while passing the detention order. The fact that the bail application would show that it was retracted was not adverted to and as observed by the Division Bench in Arun Kumar Soni’s case (supra), the detaining authority was not alive to the said fact. In addition, we would also like to refer to the observation made by the Division Bench in H.C.P.No.590 of 2004 dated 21.9.2004 (Daku Devi v. State of Tamil Nadu & another) as follows:-
“23. Before parting with the case, however, one aspect needs to be emphasised. The manner in which the Habeas Corpus Petition has been adjourned number of times on the request of the respondents for filing counter is apparent from the earlier narration. Article 22 of the Constitution of India requires that a representation of the detenu is required to be disposed of without any unnecessary delay. It is of course true that nothing is indicated in Article 22 about the necessity to dispose of the Habeas Corpus Petition as expeditiously as possible without any unnecessary delay by the High Courts. However, judicial notice can be taken of the fact that almost in all the High Courts, rules have been framed prescribing for early disposal of the Habeas Corpus Petitions since liberty of a person is involved. The Supreme Court has repeatedly observed that the right to a speedy trial is a fundamental right under Article 21 of the Constitution. There cannot be any doubt that such an observation is equally applicable to the disposal of Habeas Corpus Petitions. It is true that many of the matters cannot be dealt with expeditiously because of docket explosion int he High Courts. However, the duty of the detaining authority or the State in facilitating early disposal of the cases cannot be over emphasised. The State Government cannot delay the disposal of Habeas Corpus Petitions on the ground of filing counter. This is not to suggest that reasonable time for filing counter should not be granted. However, seeking repeated adjournments for filing counter obviously cannot be countenanced. The logic of making sincere attempts to expedite disposal of the representation of the detenu is equally applicable to expeditious disposal of Habeas Corpus Petitions.”
8. In view of the long series of judgments where the non application of mind of the detaining authority to such retractions have been held to vitiate the detention order, we respectfully follow the same. Accordingly, the habeas corpus petition is allowed and the impugned order of detention dated 18.1.2008 passed by the first respondent is quashed. The detenu by name Abdulla Kader Gani, S/o Abdulla shall be set at liberty forthwith, unless he is required in connection with any other cases.
Index : yes/no (P.S.D.,J.) (V.P.K.,J.)
Internet : yes 16.09.2008
ss
To
1. The Secretary to Government
of Tamil Nadu
Public (SC) Department
Fort St.George
Chennai 600 009
2. The Secretary to Government of India
Ministry of Finance
Department of Revenue
COFEPOSA Unit
New Delhi
3. The Superintendent of Central Prison
Central Prison, Puzhal
Chennai
4. The Public Prosecutor
High Court, Madras
PRABHA SRIDEVAN, J.
and
V.PERIYA KARUPPIAH, J.
H.C.P.No.292 of 2008
16.09.2008