IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 26/03/2003
Coram
The Honourable Mr. Justice V.S. SIRPURKAR
and
The Honourable Mr. Justice V. KANAGARAJ
H.C.P. No.2153 OF 2002
Tmt. Chinnaponnu .... Petitioner
-VS-
1. State of Tamil Nadu
represented by the
Secretary to Government
Prohibition and Excise Department
Chennai 9
2. District Collector and
District Magistrate
Kancheepuram District
Kancheepuram ..... Respondents
Petition under Art.226 of the Constitution of India, praying for a Writ of
Habeas Corpus as stated in the petition
For Petitioner :: Mr. Swamidoss Manoharan
For Respondents :: Mr. A. Navaneethakrishnan
Addl. Public Prosecutor
:ORDER
(Order of the Court was made by V.S. SIRPURKAR, J.)
The writ petition is filed by one Chinnaponnu, challenging the
order dated 16-8-2002 passed by District Collector and District Magistrate,
Kancheepuram District, Kancheepuram, branding one Chakkarai alias
Chakkaravarthy as goonda and directing his detention under Sec.3 of the
Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders,
Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act,
1982 (in short Act 14 of 1982).
2. Two adverse cases are shown against the detenu while the
ground case is based on an incident dated 27-5-2002, which pertained to the
murder of one Kutty, husband of Tmt. Mangalam Kutty. The said Mangalam Kutty
was the President of the Melamaiyur village panchayat at the relevant time.
In the reasons it is suggested that detenu belonged to the group of one
Kanitha Sampath, sitting Member of Legislative Assembly from Thirupporur
Assembly constituency and the wife of the deceased Kutty had political rivalry
with Kanitha Sampath and this has resulted into the murder of Kutty at the
hands of the henchmen of the said Kanitha Sampath. As many as six persons
have been shown to be arrested on account of the allegation that they
assaulted Kutty with aruval and knives and caused him injuries resulting in
his death on the spot. The detaining authority has also relied on the fact
that Mangalam Kutty had lodged a number of complaints to the concerned police
station because of the threatening calls and threatening letters directed at
her by the henchmen of her political rival. It is also pointed out that
Mangalam Kutty was elected as the President of the said village panchayat
union, defeating the sitting M.L.A., Kanitha Sampath. The detaining authority
had come to the conclusion that this murder of the husband of the village
panchayat has resulted in the disturbance to the maintenance of public order.
3. Learned counsel for the petitioner, Mr. Swamidoss
Manoharan firstly pointed out that pages 71, 101, 102, 207, 225, 253, 255, 282
and 49 were illegible and, therefore, the detenu found it difficult to read
the same. He, therefore, had sought legible copy of these pages. He further
points out that 197, 199, 201, 203, 213, 61, 63, 65 and 55 were entirely in
English and since the detenu did not understand English, he had sought the
Tamil translation of these pages. Learned counsel suggested that though these
pages have been given, the Tamil translation of pages 299 and 301 are not
there in the booklet. He, therefore, suggests that this amounts to the denial
of opportunity to make a proper and effective representation against his
detention.
4. We have seen those pages. They pertained to the post-mortem
report, which is in English. There is no doubt that the translation of this
post-mortem report, which graphically describes the injuries on the person of
the deceased Kutty has not been supplied. However, the matters will not stand
concluded thereby. It is trite law now crystallised by the decision of the
Supreme Court in PAUNAMMAL v. STATE OF TAMIL NADU (1999 SCC Crl. 231) that
it is only the denial on the part of the State to supply the copies of or
translation of the relied upon documents, it would clinch the issue in
favour of the detenu. The Apex Court has clarified therein that if the detenu
askes for only the referred to documents, the non-supply thereof would not
result in vitiating the detention. We have seen the grounds very closely but,
we do not find that this post-mortem report is in any manner relied upon by
the detaining authority. At the most it is a referred document. In that
view, the contention of the learned counsel for the petitioner that a
prejudice was caused to the detenu on account of non-supply can also not be
accepted because the learned counsel has not been able to show us any
prejudice caused on account of the non-supply. Keeping in mind, the
principles laid down by the Apex Court in Paunammal case, cited supra, it will
have to be held that the contention raised does not deserve acceptance.
5. Learned counsel then argued that there was nothing to
suggest that this singular incident of murder had resulted in disturbance of
public order. Learned counsel contended that it could at the most be held to
be prejudicial to the maintenance of law and order situation in the village.
The argument was that this was a small hamlet wherein such murder by itself
cannot cause the repulse so as to disturb the public order. We were
extensively taken through the reported judgment of the Supreme Court in PIYUSH
KANTIVAL MEHTA v. COMMISSIONER OF POLICE, AHMEDABAD CITY AND ANOTHER (AIR
1989 SC 491) and more particularly the observations made in paragraphs 12, 16
and 17 thereof. There can be no dispute about the law laid down by the Apex
Court. However, it cannot be said that the incident of a murder of husband of
the President of the Village Panchayat was of such a potency so as not to
disturb the public order in the otherwise calm and quiet hamlet. We cannot
forget that in the grounds the pre-existing enmity between Mangalam Kutty and
Kanitha Sampath is referred to and relied upon. The murder was as a result of
political rivalry between Mangalam Kutty and Kanitha Sampath. The detaining
authority has also used the earlier complaints made by Mangalam Kutty asking
for the protection. He has also referred to the threatening calls and
threatening letters handed out by the group of the said Kanitha Sampath.
Under such circumstances, it cannot be said that a gruesome murder of the
husband of President of the village panchayat will not cause ripples in the
public order of that hamlet. After all, if Melamaiyur had a village
panchayat, it cannot be strictly said to be a sleepy hamlet. We have seen
even the sketch drawn by the Investigating Officer where this gruesome murder
took place though at night at 10o clock. It is in the vicinity of a few
houses. If the incident has taken place on the backdrop of the fierce
political rivalry and of such a person like husband of the President of the
village panchayat, it cannot be said that the public order of that area was
not likely to be disturbed.
6. Learned counsel then pointed out that this was a singular
incident and, therefore, it could not be said that it would disturb the public
order. In the recent decision in DARBAN KUMAR SHARMA v. STATE OF TAMIL NADU
(J.T. 2003 (1) SC 176), the Apex Court went into this question and observed
that a solitary assault on one individual could not be said to disturb the
public peace or place the public order in jeopardy. In paragraph 6, the
Supreme Court took note of the allegations made against the detenu in that
case, which was of his robing a person called Kumar in a public place. It,
therefore, came to the conclusion and recorded a finding that there was no
material on record to show that the reach and the potentiality of the solitary
incident of robbery was so great as to disturb the even tempo or normal life
of the community in the locality or disturb general peace and tranquility or
create a sense of alarm and insecurity in the locality. The Supreme Court
later on went on to quash the detention on the ground that in the
circumstances of that case, it could not be said that the act of the detenu
was sufficient to cause a disturbance to the public order. However, the
observations quoted above provide a clue for deciding as to whether a
particular act could be held to be sufficient to disturb the public order.
Though in the aforesaid decision, there were no such facts available, in our
opinion, the material is available in the present case. It cannot be
forgotten that there was a backdrop of a long standing rivalry in between two
groups one headed by the wife of the deceased and another by the sitting
Member of the Legislative Assembly. The wife of the deceased has been
constantly complaining and seeking protection of the police on the ground that
she was being given threatening calls and threatening letters. It cannot also
be forgotten that the person, who lost the life was the husband of President
of village panchayat. In our opinion, the consideration of this material to
be sufficient to cause the disturbance of the public order cannot be said to
be erroneous, on the part of the detaining authority. When we see the grounds
closely, this common thread of long political rivalry and the fierce result
thereof a murder of the husband of the President of the village panchayat
have been taken into consideration by the detaining authority. We cannot,
therefore, persuade ourselves to accept the contention that this was merely a
disturbance to the law and order rather than public order.
7. Learned counsel tried to urge that the incident had taken
place at night and there was nothing to suggest that it took place in presence
of the villagers. In fact, the bail application was rejected by the Sessions
Judge on the ground that there was enough evidence available to suggest that
the detenu with others had taken part in committing the overt act against the
said Kutty. It cannot, therefore, be said that the act on the part of the
detenu in committing the assault with deadly weapons and thereby committing
the murder of Kutty, husband of the President of the village panchayat, can be
dubbed only as disturbing the law and order and not the public order. The
contention, therefore, must be rejected.
8. Lastly, Mr. Swamidoss Manoharan, argued that the detenu
had sought the copy of the affidavit sworn by the sponsoring authority by
which he placed the copy of the order dated 16-8-2002 before the detaining
authority. The argument is duel. Firstly, it is contended that such copy
came to be surreptitiously pasted in the documents which have been supplied;
alternatively, the argument is that if the copy of the order dated 16-8-2002
was actually supplied to the detaining authority then, necessarily it had to
be supplied only by way of an additional affidavit because all the other
papers must have already been supplied to the detaining authority.
9. In the first place, there is nothing on record to suggest
that any additional affidavit was sworn and supplied to the detaining
authority by the sponsoring authority. The argument of the learned counsel is
based on the presumption that all the documents and the affidavit came to be
supplied earlier to 16-8-2002 and on that basis the order of detention was
passed on 16-8-2002. It cannot be forgotten that the bail application came to
be rejected by order dated 14-8-2002 and the copy thereof was made available
to the sponsoring authority only on 16-8-2002. Under such circumstances, the
copy could have been supplied to the detaining authority even on 16-8-2002 and
before the detention order was passed. Therefore, this question also pales
into insignificance. Learned counsel, however, says that the said affidavit
was not supplied. In our opinion that there was such an affidavit is itself
not established and, therefore, there will be no question of any prejudice
being caused to the detenu because of the nonsupply of the alleged additional
affidavit.
10. Lastly, learned counsel relied on the question of delay
in consideration of the representation. The first representation, dated 16
-9-2002, made by the detenu was received by the Government through the
Advisory Board and it came to be rejected by the Government on 7-10-2002.
This representation was received by the Government on 20 -09-2002. It
immediately called the parawise remarks on 20-9-2002, which was received by
the Government only on 30-9-2002. Thereafter, the file was placed before the
Under Secretary and the Deputy Secretary on 1-10-2002. It is to be remembered
that 21st, 22nd, 28th and 29 th October, 2002 were holidays. Therefore, there
was no question of any delay here. Ultimately, the Honble Minister dealt
with the representation and rejected it on 7-10-2002. If the file was put
before the Honble Minister on 4-10-2002 and was disposed of on 7-10-2002,
there was no question of any delay.
11. Learned counsel, however, points out that one more
detailed representation was made by the detenu on 30th September, 2002 and
that was not properly considered in time. Learned Additional Public
Prosecutor drew our attention at the counter wherein the time-table is given.
This representation was received by the Government on 4-10-2002. Parawise
remarks were called from the detaining authority on 7 -10-2002. 5th and 6th
October were holidays being Saturday and Sunday. The remarks were received
back by the Government on 28-10-2002. The matter was considered by the Under
Secretary and Deputy Secretary on 30-10-2002 and 31-10-2002 respectively,
while it was kept before the Honble Minister on 2-11-2002 and it was rejected
on 6-11-2 002.
12. Learned counsel takes exception to the period between
7-10-200 2 and 28-10-2002 and secondly between 2-11-2002 and 6-11-2002. In so
far as the first spell is concerned, it is pointed out by the learned
Additional Public Prosecutor that 12th to 15th, 19th, 20th, 26 th and 27th of
October, 2002 were public holidays. Learned Additional Public Prosecutor
argues that some time would be required because the Government had to call the
parawise remarks from the detaining authority, viz. District Collector and
District Magistrate, Kancheepuram who had to further call the remarks of the
sponsoring authority and after receipt of those remarks had to despatch the
same to the Government. If, in the whole process, as many as ten to twelve
days were public holidays, there would be no question of any delay. Learned
counsel also pointed out that some time would be required in the postoffice
also. Therefore, the explanation is reasonable and we are of the clear
opinion that there is no delay in consideration of the second representation
also.
13. In short, we are of the clear view that the petition has
no merits and must be rejected. It is accordingly dismissed.
Index:Yes
Website:Yes
Jai
To:
1. State of Tamil Nadu represented by the Secretary to Government Prohibition
and Excise Department Chennai 9
2. District Collector and District Magistrate Kancheepuram District
Kancheepuram