IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19/11/2003
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
and
THE HONOURABLE MR. JUSTICE T.V. MASILAMANI
H.C.P.NO.542 OF 2003
P. Santhammal,
W/o. late Purushothaman .. Petitioner
-Vs-
1. STATE rep. by its Secretary
to Govt.,
Prohibition & Excise Department,
Fort St. George, Chennai 9.
2. The Commissioner of Police,
Greater Chennai,
Egmore, Chennai 600 008. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Habeas Corpus as stated therein.
For Petitioner : Mr.S. Swamidoss Manokaran
For Respondents : Mr.M.K. Subramanian
Government Advocate
(Criminal Side)
:O R D E R
(The order of the Court was made by P.K.MISRA, J)
Heard the learned counsels appearing for the parties.
2. The present Habeas Corpus Petition has been filed by the mother of
the detenu, who is now in incarceration pursuant to the order of the detention
passed by the second respondent on 9.1.2003 under Section 3(1) of the Tamil
Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982
(Tamil Nadu Act 14 of 1982), hereinafter called as the Act, on the allegation
that the detenu is a Goonda
3. In the grounds of detention, reference has been made to several
past incidents of alleged involvement of the detenu in commission of several
crimes punishable under Sections 379 and 392 IPC. The allegations indicate
that those occurrences had taken place within the jurisdictions of Gudur
police station and Nellore police station, which are within the territorial
jurisdiction of Andhra Pradesh and not Tamil Nadu. In the aforesaid
background, the first contention of the learned counsel for the petitioner is
to the effect that since the past occurrences relating to adverse cases had
occurred within the jurisdiction of Andhra Pradesh and not within the
territorial jurisdiction of Tamil Nadu, the allegations in those cases could
not have been considered for the purpose of passing the impugned order of
detention. It is the further submission of the learned counsel that if those
allegations are ignored, except the ground case, which allegedly occurred
within the jurisdiction of Tamil Nadu, there are no other incidents before the
detaining authority to come to a conclusion that the detenu was a habitual
offender or Goonda as defined under the Act.
4. Such a contention raised by the learned counsel for the petitioner
is not acceptable. The order of preventive detention is passed on the basis
of apprehension in the mind of the detaining authority that a person is likely
to commit offences of a particular type in future. For considering such
probability, the past records of the person is taken into consideration. Even
though it may be assumed for this case that the ground case, on the basis of
which the order of preventive detention is passed, should be within the
territorial jurisdiction of the detaining authority (even such supposition may
not be correct), there is no warrant for the submission that the past history
relating to the commission of offences, apart from the ground case, should be
in respect of offences within the territorial jurisdiction of the detaining
authority. If such a supposition would be accepted, a person having criminal
propensity, may go on committing offences successfully within the territorial
jurisdiction of different authorities and with a view to commit further
offences with impugnity, would claim protection on the pretext that the
detaining authority has no territorial jurisdiction. The detaining authority
takes a decision to pass the order of preventive detention because of the
likelihood or the apprehension that such person, if not detained, is likely to
commit offences of a particular type in future. There is no requirement in
law that the offences allegedly committed in the past by the concerned person
should be committed within the territorial jurisdiction of the detaining
authority or for that matter within the territorial jurisdiction of the
concerned State. The first contention is therefore not acceptable.
5. The second contention is relating to alleged delay in disposal of
the representation made on behalf of the detenu. From the materials on
record, it is apparent that the representation of the detenu was received on
14.2.03 and without any further delay, promptly, the remarks were called for
on the same day and on the receipt of the remarks within three days, the
matter was placed before the appropriate authority, who has disposed of the
representation without any further undue delay. Therefore, it cannot be said
that there has been any unexplained delay in the disposal of the
representation.
6. The third contention of the learned counsel for the petitioner is
to the effect that even though an application for bail had been filed on
behalf of the detenu and such application was pending, in the order passed by
the detaining authority, there is no reference to filing of such application
for bail. It has been further submitted that even assuming that non-reference
to the bail application by the detaining authority is of no consequence, since
such a bail application had been filed, the contents of the said bail
application should have been placed before the detaining authority. Similarly
such bail application and the fact that on 10.1.2003, bail order has been
passed, should have been brought to the notice of the Advisory Board and the
order of preventive detention is vitiated by non-application of mind of all
the relevant factors by the detaining authority initially and the Advisory
Board subsequently.
7. It is of course true that in the order of detention, it has been
recited almost by rote I am aware that Thiru Prabhu @ Gunji Prabhu is in
remand and there is imminent possibility that he may come out on bail for the
offences under Sections 341, 332, 336, 392,427 an 506(2) IPC by filing bail
application in the Court. The fact that by such order of detention dated
9.1.2003, bail application had already been filed and stood adjourned to
10.1.2003, does not appear to have been brought to the notice of the detaining
authority. The contents of such bail application would have obviously some
bearing in the matter relating to passing of the order of preventive
detention. This would indicate that all the relevant materials, which were
available before the detention order is passed, were not placed before the
detaining authority. Even assuming that this would not have the effect of
vitiating the order of detention, the mere fact that the contents of the bail
application and the fact that the order granting bail was passed on 10.1.2003
were not placed before the Advisory Board nor placed before the State
Government for consideration of the representation. It is of course true that
there is no binding proposition which says that contents of the bail
application must be accepted to be true by the detaining authority or the
Advisory Bard of the State Government while considering the bail application.
But there cannot be any dispute regarding the proposition that the contents of
the bail application are of some relevance while considering the question of
passing of the order of detention or confirming the order of detention by the
Advisory Board or consideration of the representation by the State Government.
Non-placement of the application for bail and even the result of the bail
application before the concerned authorities would tantamount to
non-application of mind of the relevant facts and circumstances, thus,
vitiating the order of detention.
8. In the case reported in 1986 SCC (Cri) 535 (ANANT SAKHARAM RAUT v.
STATE OF MAHARASHTRA AND ANOTHER), the Supreme Court observed as follows :-
. . . We have gone through the detention order carefully. There
is absolutely no mention in the order about the fact that the petitioner was
an undertrial prisoner, that he was arrested in connection with the three
cases, that the applications for bail were pending and that he was released on
three successive days in the three cases. This indicates a total absence of
application of mind on the part of the detaining authority while passing the
order of detention.
9. Similar view had been expressed by a Division Bench of
this Court in the decision reported in 1999(2) MWN (Cr.)17 (MAHINDER PAL SINGH
SACHDEV,COFEPOSA DETENU, CENTRAL PRISON, CHENNAI v. STATE OF TAMIL NADU, REP.
BY SECRETARY TO GOVT., PUBLIC (SC) DEPT., CHENNAI AND ANOTHER), wherein it was
observed that all aspects, even the aspect that would have arisen after the
order of detention, which has got some relevance, should be placed before the
Advisory Board.
10. Following the ratio of the aforesaid decision, in our
opinion, the order of preventive detention is vitiated on account of the fact
that all the relevant facts were not placed before the detaining authority and
subsequently before the Advisory Board.
11. For the aforesaid reasons, the preventive order of
detention cannot be sustained and is hereby quashed. The detenu is directed
to be set at liberty forthwith unless he is required in connection with some
other case.
Index : Yes
Internet : Yes
dpk
To
1. The Secretary to Govt.,
Prohibition & Excise Department,
Fort St. George, Chennai 9.
2. The Commissioner of Police,
Greater Chennai,
Egmore, Chennai 600 008.
3. The Public Prosecutor,
High Court,
Madras.
4. The Superintendent,
Central Prison, Madras.