BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/07/2006 CORAM: THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU Habeas Corpus Petition(MD) No.89 of 2006 T.Parvathy ... Petitioner Vs. 1.The Secretary to Government, Govt. Of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai -9. 2.The Commissioner of Police, Tirunelveli Cirty, Tirunelveli. 3.The Inspector of Police, Bridge Police Station, Tirunelveli Town, Tirunelveli District. ... Respondents PRAYER Habeas Corpus Petition filed under Section 226 of the Constitution of India, to call for the records relating to the proceedings of the Detention order passed by the 2nd respondent in No. 6/BDFGISV/2006 dated 17.02.2006, and to quash the same and direct the respondents to produce the body of the detenu Mani @ Subramaniam before this Court and set him at liberty, now detained at Central Prison, Palayamkottai. !For Petitioner .... Mr.R.Appavu Rathinam ^For Respondents .... Mr.Senthoor Pandian, Additional Public prosecutor :JUDGMENT
M.E.N.PATRUDU,J
1.00. Clash between the rule of law and the rule of violence must necessarily
result in detention of the violator, either preventive or punitive.
2.00. In this Habeas Corpus writ petition, the petitioner, the mother of the
detenu is challenging the order of detention, disputing the allegation that her
son as ‘GOONDA’, and pleading that he is innocent and law abiding citizen,
despite of the fact that the charges of murder, attempt to murder and other
offences affecting the human body are pending against him in Court of law and
that he is creating panic to public.
2.01.According to her, all allegations are false;
3.00. The detenu is Mani @ Subramaniam.
4.00. The respondents are;
The Secretary to Government, Govt. Of Tamil Nadu.
The Commissioner of Police, Tirunelveli.
The Inspector of Police, Bridge Police Station, Tirunelveli.
5.00. The order of detention was issued on 17.02.2006 by the second respondent.
6.00. According to respondents, the detenu is habitually committing crimes
effecting the human body and creating panic to public and acting in a manner
prejudicial to the maintenance of Public order and as such he is treated as
Goonda as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982,
(herein after referred as ‘the Act’).
7.00. The contents of the order discloses that the detenu attacked Murugan, the
victim on 31.01.2006 with aruval in a public place, known as T.M.Road,
Thirunelveli Junction, near Sarasvathi Lodge, at about 18.30 hrs. and cut the
victim causing bleeding injuries and thereafter, the detenu associate raised the
sword i.e., aruval and threatened the general public by uttering “If anybody
comes near they will also meet the same fate” and the men and women who were
going on the road have to run with fear of danger to save their lives and the
shop keepers were forced to close their shutters and traffic was paralysed and
the entire place of offence wore deserted look. A case in Crime No.190 of 2006
for the offence punishable under Sections 341,294(b), 307 and 506(ii) IPC is
under investigation. This is the ground case.
8.00. The three adverse cases pending against the detenu are;
(i)Crime Nos.695 of 2004, Thirunelveli Police Station, under Sections
294(b),323,506(i) IPC.
(ii)Crime No.1872 of 2004, of Thirunelveli Town Police Station, for an
offence of murder and other offences under Sections 147, 148, 341, 294(b), 302
and 120(b).
(iii)The third base case is of Tirunelveli Bridge Police Station in Crime
No. 183 of 2006 for offences punishable under Sections 341, 294(b), 323 and 506
(ii) IPC.
9.00. It is stated that the detenu was arrested in Crime No.190 of 2006 and
produced before the learned Judicial Magistrate and was remanded to Judicial
custody and his judicial remand is being extended from time to time and the
detenu has not moved any bail application in the above case but there is real
possibility of his coming out on bail and if he comes out on bail he will
indulge in the similar activities which will be prejudicial to the maintenance
of the public order. The petitioner has sent a pre detention representation and
the same was considered and after careful scrutiny, it was rejected. It is
mentioned that out of the three adverse cases, one case has ended in conviction
and the trial is pending in other two other cases, and the detenu is on bail in
those adverse cases;
The detaining authority in his order stated that after satisfying
himself by perusing of the material documents produced before him, the order of
detention is issued. The detenu is informed that the detention order shall not
remain in force for more than 12 days and it has to be approved by the State
Government within 12 days and in the meanwhile, the detenu has right to make a
representation in writing against the detention order to the authorities and all
the details of those authorities and procedure is informed to detenu and the
representation can be forwarded through the Superintendent, Central Prison.
The detenu is informed that he is entitled to have the assistance of friend or
relative at the time of his personal hearing by the Advisory Board. All the
materials on which the detaining authority has relied are supplied to the detenu
through booklet.
The detention order was issued in Tamil, the mother tongue of
the detenu with all the material documents in Tamil along with the English
translation of the detention order. The order is served on detenu on
18.02.2006, the next day of detention order, as per the endorsement.
After receiving the detention order, the petitioner has sent a
representation to all concerned. The representation is rejected.
10.00. Hence the writ.
Sri.R.Appavu Rethinam the learned counsel appeared for the
petitioner and Sri.N.Senthoor Pandian, the learned Additional Public Prosecutor
appeared for the respondents.
11.00. The learned counsel for the petitioner made a frontal attack on the
detention order by ventilating the following:
(A) The alleged acts of detenu mentioned in the detention order even
accepted amounts to individual acts and they do not disturb the life of the
public at large, and it is law and order problem and not public order problem as
they are all private crimes and the detenu is implicated with false allegations
and criminal law of the land is an effective instrument to take care of such
crimes and the preventive detention is uncalled for.
(B) The detaining authority has issued the order without application of
mind and without verifying the documents. Highlighting the same, It is stated
that the report given by the Additional Superintendent of Police is
contradictory. One of the attester by name Babu was in judicial custody from
01.02.2006, hence he can not a attester for the exhibit.
(C) It is contended that the observation that the detenu may likely to
come out on bail is illegal.
(D) The pre-detention representation of the petitioner dated 06.02.2006
was not considered.
(E) There is delay in considering the representation.
(F) The booklet is supplied without legible copies.
12.00. The counter affidavit is filed by the second respondent. The second
respondent is the detaining authority.
12.01. The second respondent in his counter denied all the material allegations
of the detenu. The counter affidavit highlighted the facts and circumstances
under which the detention order is passed. The second respondent has clarified
that how and why there is necessity to pass the detention order and his
subjective satisfaction was also mentioned in paragraphs 5 to 7 by discussing
the ground case and adverse cases and the prejudicial activities of the detenu.
The counter affidavit also clarifies that the so called Babu the son of
petitioner is not an attestor and the name of the Babu is mentioned in the
relevant column of the prisoner register and the name of the petitioner is also
mentioned.
12.02. We have perused the necessary records at page 201 and we find
considerable force in this contention.
It is also stated that there is no contradictory statement in the report
of the Assistant Commissioner of Police and some provisions of offence under the
Indian Penal Code are not mentioned and it is not an error. When the record is
disclosing the nature of offence and the provisions of law, there is no need to
repeat the same in the report of the Assistant Commissioner of Police. We do
find force in this contention.
12.03. It is also stated that there is real possibility for the detenu to come
out of bail in future and in fact the petitioner had filed bail now and it is
pending before Sessions Judge.
12.04. It is stated that the pre-detention representation of the petitioner
dated 06.02.2006 was received and it was considered and the enquiry report was
attached in the booklet itself and according to the respondents it was rejected
after due consideration.
12.05. it is also stated that all legible booklet is furnished to the petitioner
and there are no missing of pages. Further the affidavit of the respondent
discloses that he has perused the statements of witnesses before police under
Section 161 of Cr.P.C. and also all other documents in the ground case as well
as in adverse case. After thorough perusal of the documents he came to
satisfaction that the activities of the detenu prejudicial and for maintain of
public order, detention order is issued.
13.00. We have minutely perused the entire record.
14.00 The only point for our determination is whether the detention is illegal?
14.01 In the instant case, the detenu attacked one Murugan in the heart of the
Thirunelveli city at about 6.30 p.m. during peak evening hours. He used
dangerous weapons like Aruval and cut the Murugan and his associates raised
sword and threatening the general public. The detenu and his associates made the
men and women run on the road. From the above facts, it is clear that the detenu
is maintaining gang of his own and having associates to assist him and to commit
a crime in the public place, threatening the public and claiming himself as a
hero in the field of violence. The activities of the detenu have further
established through the three adverse cases, one of which is a murder. The
detaining authority has clearly observed that he was committed an offence which
are against human body which are punishable under Chapter XVI and XXII of Indian
Penal Code.
14.02 Therefore, it is clear that the activities of the detenu are affecting the
society at large and not merely confined to the individual sufferer and thereby
they are prejudice to the maintenance of public order. Hence, we do not find any
force in the arguments of the learned counsel for the petitioner.
14.03 In the instant case, in page No.8, at para 6 of the detention order, the
detaining authority has observed that the detenu has not moved any bail
application in the ground case and it is a fact that detenu has filed bails in
earlier adverse cases and he is granted bail; hence there is every possibility
of his coming out on bail.
14.04 In the instant case, the order of detention which was passed on 17-07-
2006, discloses that in the two adverse cases the detenu was successful in
getting bail, and the cases are pending trial. While so, in the ground case the
detenu has not prepared any bail application, but the fact of real possibility
for the detenu to file bail application cannot be ruled out, while so, in Crime
No.1872/2004, the adverse case is registered under Sections 302, 120(b) IPC etc,
and the detenu could successfully secured bail, while so, the latest case, the
offence was committed on 30.01.2006, and the offences alleged are lesser in
grave nature hence there is real possibility for the detenu to secure bail.
Further during arguments it is brought to our notice that detenu has now filed
bail petition and its number also furnished in the counter of second respondent.
14.05 We do not accept this contention. In our considered opinion, there is no
delay at all in considering the representation. The representation dated nil of
the petitioner was received by the detaining authority on 01.03.2006 and
immediately remarks are called for and the remarks are received on 06.03.2006
and the file was circulated on 07.03.2006 and the Minister has dealt with file
on 09.03.2006 and passed the final order.
14.06 From the above, it is clear that from the date of receipt of the
representation and the final order passed by the Minister only seven days are
taken. In fact, remarks are sent by the detaining authority within four days
from the date of receiving the representation and thereafter within four days
the final orders are passed by the Minister.
14.07 Therefore there is no delay as far as disposal of representation by the
authorities.
14.08 The other contention of the petitioner is that the detention order is
passed without application of mind, has no force. When the detaining authority
after verifying all the materials placed before him, by perusing the case
record in the ground case as well as in the adverse cases and after recording
the findings that the activities of detenu are prejudicial to the public peace
and his detention is necessary, in order to prevent further crimes in future and
it is nothing but application of mind. It is absurd to contend that there is
conflicting statement in the report of the Additional Superintendent of Police,
therefore the detaining authority has issued orders without application of mind.
The record received from the Additional Superintendent of Police and many other
documents before the detaining authority are verified. When the detaining
authority has discussed all the details and passed order, it is an order after
applying mind. If a wrong fact is noted in one document it is unnecessary for an
authority to reproduce in the order
14.09 The contention that one of the attester by name Babu was in judicial
custody on the date of arrest of detenu is unnecessary argument because in the
counter it was explained that the said Babu is none other than the brother of
the detenu and the son of the petitioner, and he is not an attester and only his
name is mentioned in the relevant column of the prison register and so also the
name of the petitioner is mentioned. They are not attestors.
14.10 The next contention that the observation that detenu may likely be
released on bail is an illegal and it is without application of mind.
14.11 In fact to day we have pronounced detail order in H.C.P.No.3/06 where Dog
Ravi was the detenu and this Court had gone into detail about the preventive
justice and the law of the land in such cases and case law of the Apex Court on
preventive justice.
14.12 The Apex Court has clearly states in the recent judgment reported in
(2006(1) SCC(Crl) 257) Union of India and another vs. Chaya Ghoshal and another
“While dealing with the habeas corpus application, undue importance is not to be
attached to technicalities”,
14.13 Further the Supreme Court has observed in the latest judgment reported in
(2006 (1) SCC (Cri) 593) T.Saravanan @ S.A.R.Prasana Venkatachaarlar Chaturvedi
Vs. State through Secretary and another that the detaining authority has to draw
inference from the available material on record and it is not merely ipse dixit
statement.
14.14 In the instant case the detaining authority has discussed all the above
aspects basing on the material available before them and observed that there is
no real possibility to the petitioner to come out on bail.
14.15 Further, In Kamarunnissa Vs. Union of India,(1)
It is observed that
“From the catena of decisions referred to above it seems clear to us that
even in the case of a person in custody a detention order can validly be passed
(1) if the authority passing the order is aware of the fact that he is
actually in custody;
(2)if he has reason to believe on the basis of reliable material placed
before him (a) that there is a real possibility of his being released on bail,
and
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(1)1991 SCC (Cri) 88,
(b) that on being so released he would in all probability indulge in
prejudicial activity; and
(3) if it is felt essential to detain him to prevent him from so doing.
If the authority passes an order after recording his satisfaction in
this behalf, such an order cannot be struck down on the ground that the proper
course for the authority was to oppose the bail and if bail is granted
notwithstanding such opposition to question it before a higher court.”
14.16 The full bench of this Court in
K.Thirupathi Vs. District Magistrate, Thiruchirapalli, (2005
Crl.L.J.4384)
It is held that the strict insistence of the usage of word “imminent” is
not necessary and expressions like real possibilities, very likely or most
likely can be used by the detaining authority to reflect his caution with regard
to the immediate release of the detenu on bail.
Therefore, the Full Bench of this Court clearly observed that expressions
like real possibility or very likely or most likely, can be used by the
detaining authority with regard to the future release of the detenu on bail and
it is subjective satisfaction and it is after application of mind.
14.17 This judgment on the point being delivered by full bench of this Court
must be respected and followed.
14.18 This Court had discussed in detail about the preventive detention in
H.C.P.No.3/06 by following the judgments of the Honourable Supreme Court cited
in
A.K.Gopalan vs. State of Madras (1950 SCR 88),
A.K.Roy vs. Union India (AIR 1982 SC 710),
Hardhan Saha vs. State of W.B. (AIR 1974 SC 2154)
Samir Chatterjee vs. State of W.B. (AIR 1975 SC 1165)
Khudiram Das vs. State of W.B. (AIR 1975 SC 550)
Additional Secy, Govt of India vs. Alka (1992 Supp.(1) SCC 496)
S.K.Jalnal vs. District Magistrate (AIR 1975 SCC 229)
Central Prison, Fatehgarh vs. Ram Manohar Lohia (1960 SCC 633)
Ram Manohar vs. State of Bihar (AIR 1966 SCC 740)
Harpreet Kaur Harvinder Singh Bedi vs. State of Maharastra (AIR 1992 SCC 979)
S.Sebastin vs. State of Tamil nadu and others (2006 Crl.L.J. 947)
K.Thirupathi vs. District Magistrate, Thiruchirapalli (2005 Crl.L.J.4384)
T.V.Saravanan @ S.A.R.Prasana Venkatachaarlar Chaturvedi vs. State through
Secretary and another (2006 (1) SCC (Cri) 593)
Kamarunnissa vs. Union of India (1991 SCC (Cri) 88)
M.C.Metha vs. Union of India (2006(3) SCC 399)
Rajammal vs. State of Tamil Nadu and another (AIR 1999 SCC 684)
Latha vs. The Secretary to the Government (2005(4) CTC 17.(Madras))
A.Malmoona vs. State of Tamil Nadu and others ((2006) 1 SCC (Cri) 428)
Lilly vs. Chief Secretary to Govt. of T.N. and others ((2006) 1 SCC (Cri)
515)
Chakravarthy vs. State of T.N. (2006 (1) SCC (Cri) 619)
Bhutnath vs. State of W.B. (AIR 1974 SC 806) &
Birendra Kumar Rai vs. Union of India (1993 CRL.L.J.134)
14.19 As all the above discussions support only view that in the cases of this
nature the Court has to take the disturbance of public order as primary and
whether there is any malafide intention in passing detention order, all other
technical defects if any need not be viewed seriously. Hence, We do not find
any merit in this petition. Accordingly, the petition is dismissed.
gcg/Inba
M.CHOCKALINGAM
AND
M.E.N.PATRUDU