IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03/04/2006
Coram
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice J.A.K. SAMPATHKUMAR
Habeas Corpus Petition No.1346 of 2005
and Habeas Corpus Petition No.1348 of 2005
Muthulakshmi ... Petr. in HCP.1346/05
A.Kumari ... Petr. in HCP.1348/05
-Vs-
1. The District Magistrate
and District Collector,
District Collector,
Coimbatore District,
Coimbatore-18.
2. The Secretary to Government
of Tamil Nadu,
Prohibition & Excise Department,
Fort St. George,
Chennai-9. ... Respondents in
both the HCPs.
HCP No.1346/05:- Petition under Article 226 of the Constitution of India for
the issuance of writ of habeas corpus to call for the records of the 1st
respondent in connection with the order of the 1st respondent dated 01.12.2005
in Cr.M.P. No.24/G/2005/E4 detaining Mohanram son of Jagadeesan aged about 27
years as a Goonda under Tamil Nadu Act 14 of 82, set aside the same, direct
the respondent to produce the body of the said detenu, now lodged in the
Central Prison, Coimbatore, before this Court and set him at liberty.
HCP No.1348/05:- Petition under Article 226 of the Constitution of India for
the issuance of writ of habeas corpus to call for the records of the 1st
respondent in connection with the order of the 1st respondent dated 01.12.2005
in Cr.M.P. No.22/G/2005/E4 detaining Senthil son of Arjunan aged about 30
years as a Goonda under Tamil Nadu Act 14 of 82, set aside the same, direct
the respondent to produce the body of the said detenu, now lodged in the
Central Prison, Coimbatore, before this Court and set him at liberty.
!For Petitioners : V.Parthiban
^For Respondents : Mr.Abudukumar Rajarathinam,
Government Advocate.
:COMMON ORDER
P.SATHASIVAM, J.
The impugned orders of detention dated 01.12.2005, detaining one
Mohanram and Senthil as ‘Goonda’ under Tamil Nadu Act 14 of 1982, are
challenged in these Habeas Corpus Petitions by their respective mothers.
2. Heard learned counsel for the petitioners as well as learned
Government Advocate for the respondents.
3. Mr.V.Parthiban, learned counsel appearing for the petitioners, at
the foremost, submitted that though the detention order passed in respect of a
co-accused was revoked on the advice of the Advisory Board, dated 13.01.2006,
the said document/advice, being vital one, has not been placed before the
Government when confirmation order was passed on 18.01.2006. He further
submitted that since the detention orders have been passed on the basis of the
very same ground case occurrence, the suggestion of the Advisory Board to
revoke the detention order passed against a co-accused will have a bearing on
the detenus in these cases, hence, the said suggestion/advice ought to have
been placed before the Government. He also claimed that had it been placed
before the Government, there would have been every possibility of passing
similar orders and not confirming the orders passed by the Detaining
Authority.
4. In support of the above contention, he relied on a Division Bench
decision of this Court in HCP No.484 of 2004, dated 14.09.2004. In that
decision, the Division Bench has observed that where the ground case is the
same in respect of several detenus, how the case of a co-detenu is considered
subsequently by the A dvisory Board or even the Court, is a relevant
circumstance, which the State Government is required to consider at the
subsequent stage of confirmation. The Bench further held that such release is
a relevant factor which should be considered by the State Government and
non-consideration of such relevant factor would vitiate the order of
confirmation. The same Bench also reiterated the said view in HCP No.762 of
2004, dated 08.10.2004.
5. As against the above claim, learned Government Advocate contended
that the decision taken by the Advisory Board in respect of a codetenu is not
required to be placed before the Government since it depends upon various
factors including involvement, activities etc. of the individual concerned.
6. In Safiya v. Govt. of Kerala (2004 SCC (Cri) 920), the Supreme
Court has held that subjective satisfaction of Detaining Authority cannot be
said to have vitiated on the ground that non-placement of opinion of Advisory
Board rendered in case of another person (whose detention was revoked)
amounted to non-placing of relevant and important document. The following
conclusion in para No.10 is relevant and the same is extracted here-under,
” In our opinion, the revocation of the detention order issued against
Mohammed Mustaffa has no relevance as far as the detenu T.P. Moideen Koya is
concerned. The detenu was personally heard by the Advisory Board. After
hearing the detenu and perusing the records, the Advisory Board opined that
there were sufficient grounds for the detention of the detenu. Under the
circumstances, we are of the opinion that the non-placing of the order
revoking the detention order of Mohammed Mustaffa before the Advisory Board
does not vitiate the detention order issued against the detenu. The detention
order was issued after perusing the relevant and material documents and after
arriving at the subjective satisfaction of the authorities. We are,
therefore, of the view that the High Court has rejected the said contention,
rightly so, in our opinion.”
The above decision of the Apex Court in Safiya Vs. State of Kerala was not
brought to the notice of the Division Bench. In the light of the conclusion
of the Supreme Court that non placing of the order/ advice of the Advisory
Board in respect of co-detenu does not vitiate the detention order issued
against another detenu though both are accused in respect of the same
occurrence, the conclusion arrived at by the Division Bench in the above
referred cases is applicable to those cases and it cannot be cited as a
binding decision. In the light of the said conclusion, we hold that
non-placement of opinion of the Advisory Board in respect of a co-detenu
before the Government is not fatal and on that ground, the detention order
cannot be interfered with. Accordingly, we reject the first contention.
7. Learned counsel for the petitioners, by pointing out that in the
representation, dated 10.12.2005, a specific request was made for furnishing
copy of the Report of Identification Parade; would submit that though the said
representation was rejected on 27.12.2005, the rejection letter was served on
06.01.2006 and the documents sought for were supplied only on 13.01.2006, that
is, after convening of the Advisory Board on 04.01.2006. He also contended
that in the absence of copy of the Report of Identification Parade, the
detenus were very much prejudiced in making effective representation before
the Board.
8. While meeting the said contention, learned Government Advocate
contended that the said Report was not relied on by the Detaining Authority,
in such circumstances, no prejudice was caused to the detenus. Even
otherwise, according to him, as directed by the Government, the said document
was supplied. In this regard, he relied on a decision of this Court reported
in Subbiah v. The Commissioner of Police, Madras City (1993 L.W.Criminal
113). He pressed into service the following conclusion of the Division Bench,
” An analysis of the above decisions shows that it is not for the
Court to sit in judgment over the detaining authority and consider whether the
facts set out in the order of detention were true and whether the materials
were sufficient for making the order of detention. The only question to be
considered by the Court is whether the materials were relevant for the matters
to be decided by the detaining authority and whether they were proximate in
time. It is not in dispute that the satisfaction of the detaining authority
is a subjective one and not an objective one. Hence, if the detention order
shows materials to prove the subjective satisfaction on the part of the
authority concerned then the Court has to uphold the same.”
9. It is clear from the above decision that it is not for the Court
to consider as to whether the facts set out in the order of detention were
true and the materials supplied were sufficient for passing the order of
detention. If the detention order shows that there are materials and that the
Detaining Authority, on consideration of those materials and after arriving at
subjective satisfaction, passed the detention order, the same cannot be
interfered with by this Court as if it is an appellate court. We are
satisfied that the detenus were in no way prejudiced due to non-supply of the
Report of Identification Parade prior to their appearance before the Advisory
Board.
10. Finally, learned counsel for the petitioners submitted that in
view of the mistakes/discrepancies in the grounds of detention, in the absence
of proper explanation, the detention orders are liable to be quashed on the
ground of non-application of mind on the part of the Detaining Authority.
Learned counsel pointed out that though the accused/detenus were physically
produced before the learned Magistrate and their remand was extended then and
there, in the grounds of detention, the Detaining Authority has stated that
the accused were remanded through video conference. We verified the narration
of facts in the grounds of detention and the remand orders passed by the
learned Magistrate. We are satisfied that the remand orders were passed/
extended on proper satisfaction by the Judicial Magistrate concerned and there
is no substance in the contention of the learned counsel for the petitioners.
Further, we are also satisfied that there is no confusion as claimed by the
learned counsel for the petitioners.
11. In the light of what is stated above, we do not find any valid
ground for interference. Consequently, the Habeas Corpus Petitions fail and
the same are dismissed.
JI.
To
1. Secretary to Government, Prohibition and Excise
Department, Fort St. George, Chennai 600 009.
2. The District Magistrate and District Collector,
Coimbatore.
3. The Superintendent, Central Prison, Coimbatore.
(In duplicate for communication to detenus)
4. The Joint Secretary to Government, Public (Law and Order) Fort St.
George, Chennai-9.
5. The Public Prosecutor, High Court, Madras.