Madras High Court
M. Kalaivani vs The Principal Secretary To Government on 6 February, 2020
Author: R. Subbiah
Bench: R.Subbiah, R. Pongiappan
hcp 2733 of 2019
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06-02-2020
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR. JUSTICE R. PONGIAPPAN
Habeas Corpus Petition Nos. 2733 and 2735 of 2019
---
M. Kalaivani .. Petitioner in HCP 2733
R. Premavathy .. Petitioner in HCP 2735
Versus
1. The Principal Secretary to Government
The Department of Home, Prohibition & Excise
Fort Saint George, Chennai - 600 009
2. The District Collector & District Magistrate
District Collectorate
Salem - 636 001
3. The Superintendent of Police
Salem District
Salem
4. The Superintendent of Prison
Central Prision .. Respondents in both the
Salem Habeas Corpus Petitions
HCP No. 2733 of 2019:- Petition filed under Article 226 of The Constitution of
India praying to issue a Writ of Habeas Corpus by calling for the records of the
second respondent in relation to the impugned order of detention made in C.M.P.
No.49/S.G./C2/2019 dated 11.11.2019 and set aside the same and consequently
direct the respondents to produce the body of the petitioner's husband namely
P. Mani, aged about 65 years, before this Court, who is presently detained in
Central Prison, Salem and set him at liberty.
HCP No. 2735 of 2019:- Petition filed under Article 226 of The Constitution of
India praying to issue a Writ of Habeas Corpus by calling for the records of the
second respondent in relation to the impugned order of detention made in C.M.P.
No.48/S.G./C2/2019 dated 11.11.2019 and set aside the same and consequently
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direct the respondents to produce the body of the petitioner's husband namely
P. Shanmugam, aged about 67 years, before this Court, who is presently detained
in Central Prison, Salem and set him at liberty.
For petitioner : Mr. V. Raghavachari
for Mr. M.R. Thangavel
in both the Habeas Corpus Petitions
For respondents : Mr. R. Prathap Kumar
Additional Public Prosecutor
in both the Habeas Corpus Petitions
COMMON ORDER
(Order of the Court was made by R. Subbiah,J) The petitioner in HCP No. 2733 of 2019 is the wife of the detenu by name P. Mani. The petitioner in HCP No. 2735 of 2019 is the wife of the detenu namely P. Shanmugam. Both these Habeas Corpus Petitions are filed assailing the validity and/or correctness of the orders of detention passed by the second respondent on 11.11.2019 invoking Section 2 (h) of the Tamil Nadu Act 14 of 1982, branding the detenus as "slum grabbers".
2. It is stated in the affidavits filed in support of the Habeas Corpus Petitions that the detenus in these Habeas Corpus Petitions are blood brothers. It is further stated that the detenu in HCP No. 2733 of 2019 is the Vice-Chairman of Palanisamy Gounder Charitable Trust, in which the detenu in HCP No. 2735 of 2019 is the Chairman. According to the petitioners, the Trust was established by the father of the detenus Late. Palanisamy Gounder and it is a registered Trust. It is further stated that the Trust was formed with an avowed object of imparting education to the rural masses in Salem District. That apart, the family of the detenus also involved themselves in Textile and Transport business in the locality. http://www.judis.nic.in 2/12 hcp 2733 of 2019 It the the further case of the petitioners that one Mohan, Son of Late. Natesa Gounder sold the land measuring an extent of 2.31 acres out of 6.93 acres in Survey No.38/1, Iveli Village, Sankari Taluk, Salem District by a registered sale deed dated 15.05.1998 registered as document No. 480 of 1998 on the file of Sub- Registrar, Sankari in favour of Shanmugam, detenu in HCP No. 2735 of 2019. From the date of such purchase, the family of the detenus were in peaceful possession and enjoyment of the said property.
3. The petitioners would further contend that on 20.12.2018, the police personnel attached to Sankari Police Station came to their residence and they called upon the detenus to attend an enquiry to be conducted by the Deputy Superintendent of Police, Sankari. The detenus also attended the enquiry. During the course of such enquiry, it is alleged that the detenus were threatened to re- convey the land purchased by them from the vendor Mohan, else they have to face dire consequences. The detenus were also threatened by Thiru. Ashok Kumar, Deputy Superintendent of Police that on their failure to oblige the demand, criminal cases will be foisted against them on the basis of a tailor-made complaint prepared and kept ready by them. Therefore, apprehending arrest, the detenus have filed Anticipatory Bail in Criminal Original Petition No. 30566 of 2018 before this Court and when the petition came up for hearing on 27.12.2018, it was represented by the learned Public Prosecutor that only a petition enquiry is pending against the detenus herein. Recording the same, Crl.OP No. 30566 of 2018 was closed by this Court.
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4. According to the petitioners, the detenus were periodically threatened by the police officials to oblige their demand, but it was refused by the detenus. While so, a case in Crime No. 31 of 2019 was registered against the detenus as well as Karthikeyan, son of the detenu in HCP No. 2733 of 2019, on the file of Sankari Police Station for the alleged offences punishable under Section 420, 465, 468 and 471 of Indian Penal Code read with Section 4 of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act. On registration of the case, Criminal Original Petition No. 2327 of 2019 was filed and bail was granted by this Court on 01.02.2019. Thereafter, Crl.OP No. 2771 of 2019 was also filed before this Court to quash the case in Crime No. 31 of 2019 in which interim stay was granted on 01.02.2019. Further, as there was constant harassment and disturbance at the instance of the police officials attached to Sankari Police Station, the detenus have also filed Crl.OP No. 41 of 2019 for a direction to the respondents not to harass them. On 04.02.2019, when Crl.OP No. 41 of 2019 was taken up for hearing, it was represented on behalf of the respondents that only a Petition enquiry is pending against the detenus and they are not harassed, as alleged. Recording the said submission, Crl.OP No. 41 of 2019 was closed.
5. According to the petitioners, unable to bear the frequent harassment meted out to the detenus, they have briefed the print and visual media on 07.02.2019 and it was widely published. Irked by the interview given by the detenus complaining about the harassment caused to them by the police officials, five cases have been foisted against the detenus in quick succession and they are
(i) Crime No. 1 of 2019 for the offences under Section 120-B, 406 and 420 of IPC in http://www.judis.nic.in 4/12 hcp 2733 of 2019 which the detenus were arrested and remanded to judicial custody on 27.08.2019
(ii) Crime No. 279 of 2019 for the offences under Section 120-B, 420 and 506 (i) of IPC in which arrest intimation was served to the family members of the detenus while the detenus were in judicial custody in connection with Crime No. 1 of 2019
(iii) Crime No. 9 of 2019 registered on 05.09.2019 in which detenus were shown to have been formally arrested on 07.09.2019 (iv) Crime No. 14 of 2019 registered on 05.10.2019 in which the detenus were shown to have been formally arrested on 08.10.2019 and (iv) Crime No. 343 of 2019 for the offences punishable under Sections 294 (b), 120-B, 409, 420 and 506 (i) IPC in which also the detenus were shown to have been formally arrested on 03.11.2019. According to the petitioners, all the aforesaid five cases have been falsely registered to threaten and intimidate the detenus to part with the prime land which they have lawfully purchased. It is also stated that the aforesaid complaints relate to alleged cheating and falsification of records registered 25 years after purchasing the land referred to above. It is further alleged that when police custody was granted to the detenus in Crime No. 1 of 2019 on 26.08.2019, Thiru. Ashok Kumar, former Deputy Superintendent of Police, Sankagiri Police Station barged into the police Station and threatened the detenus while they were interrogated by the police officials.
6. The petitioners would further contend that while the detenus were undergoing incarceration, the second respondent passed the impugned orders of detention on 11.11.2019 branding the detenus as Slum Grabber under Act 14 of 1982. It is the contention of the petitioners that the orders of detention came to be passed solely on the ground that the detenus were granted bail in Crime Nos. 9 and http://www.judis.nic.in 5/12 hcp 2733 of 2019 14 on 19.09.2019 and 17.10.2019 respectively by the learned Judicial Magistrate No.I, Sankari in CMP No. 3428 of 2019. However, the detaining authority did not consider the fact that the detenus could not come out on bail inasmuch as they are under judicial custody in connection with Crime No. 1 of 2019, Crime No. 279 of 2019 and Crime No. 343 of 2019. The detaining authority also did not consider the fact that the adverse case Nos. 2, 3 and 4 mentioned in the orders of detention came to be passed while the detenus were under judicial custody, while so, the question of their activities being prejudicial to the maintenance of public order will not arise.
7. The learned counsel appearing for the petitioners, while reiterating the facts narrated above, would vehemently contend that the impugned orders of detention are legally not sustainable. The learned counsel for the petitioners would mainly contend that representations dated 18.11.2019 and 19.11.2019 were sent by the petitioners seeking revocation of the detention orders against the detenus but they were rejected after a long delay and such delay vitiate the orders of detention. The learned counsel for the petitioners also would contend that the detention orders, branding the detenus as Slum Grabber, are legally not sustainable inasmuch as the the Honourable Supreme Court as well as this Court has time and again held that cases of Land Grabbing can no longer will fall within the realm of detention law and it has to be dealt with only through invocation of ordinary Criminal Law. It is also contended that the detaining authority, without application of mind has concluded that there is a possibility of the detenus coming out on bail when the detenus were in judicial custody in three cases foisted against http://www.judis.nic.in 6/12 hcp 2733 of 2019 them in Crime No.1 of 2019, Crime No. 279 of 2019 and Crime No. 343 of 2019. It is also contended that the detaining authority did not consider the fact that the bail applications filed on behalf of the detenus in Crime No. 279 of 2019 in CMP No. 2823 of 2019 was dismissed on 17.09.2019. Further, a bail petition filed in CMP No. 3187 of 2019 seeking bail in the very same Crime No. 279 of 2019 before the learned Principal Sessions Judge, Salem was also dismissed on 30.10.2019, while so, the question of the detenus coming out on bail cannot be ruled out. The detaining authority, without application of mind to the aforesaid facts has passed the orders of detention and therefore, the learned counsel for the petitioners prayed for allowing the Habeas Corpus Petition.
8. The learned Additional Public Prosecutor appearing for the respondents would justify the passing of the orders of detention. According to him, the detenus are habitual offenders and they have conducted themselves in a manner prejudicial to maintenance of public law and order. According to the learned Additional Public Prosecutor, the detaining authority, having regard to the involvement of the detenus in several cases and the nature of offence said to have been committed by them, has rightly passed the orders of detention against them. In such circumstances, having regard to the fact that the normal criminal law will not have the desired effect to effectively preventing the detenus from indulging in such activities prejudicial to maintenance of public law and order, the detaining authority has arrived at a subjective satisfaction to pass the orders of detention against the detenus. The learned Additional Public Prosecutor therefore prayed for dismissal of these Habeas Corpus Petitions.
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9. We have heard the learned counsel for both sides and perused the materials placed on record. Even though several contentions have been raised on behalf of the counsel for both sides, we feel that the Habeas Corpus Petitions have to be allowed on the ground that the representations submitted by the petitioners have not been considered by the detaining authority and there is delay at each and every stage. In the proforma submitted by the learned Additional Public Prosecutor, the representations submitted by the detenus or the petitioners on behalf of the detenus on 19.11.2019, 19.11.2019, 18.11.2019, 18.11.2019, 29.11.2019, 29.11.2019 and 13.12.2019 have been dealt with. In relation to the first representation dated 19.11.2019, it is seen that the representation dated 19.11.2019 was received by the detaining authority on 22.11.2019 and on the same day remarks were called for. However, the remarks have been received only on 17.12.2019 and there is a delay of nearly 24 days, excluding the holidays. The remarks so received on 17.12.2019 was sent to the Under Secretary to the Government on the next day namely 18.12.2019, but it was rejected by the Minister concerned only on 07.01.2020. Here again from 18.12.2019 to 07.01.2020, there is a delay of nearly 8 days, excluding the holidays. Ultimately, the representation dated 19.11.2019 was rejected only on 08.01.2020 with a total delay of 27 days. This delay, in our opinion, has not been properly explained by the detaining authority. Therefore, we are of the view that the delay of 27 days in considering the representation dated 19.11.2019 vitiates the orders of detention passed against the detenus. In this context, we are fortified by the decision of the Honourable Supreme Court in the case of Rajammal vs. State of Tamil Nadu reported in [(1999) 1 SCC 417] wherein it has been held as follows:
http://www.judis.nic.in 8/12 hcp 2733 of 2019 ‘It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest.’
10. As per the dictum laid down by the Supreme Court in the above cited decision, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities or not. In the present case, as we have held supra, the delay in considering the representation of the detenus has not been properly considered.
11. Similarly, in a recent decision in Ummu Sabeena vs. State of Kerala reported in [2011 STPL (Web) 999 SC], the Honourable Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.
12. In the light of the above fact as well as the decisions of the Honourable Supreme Court cited supra, we have no hesitation in quashing the orders of detention on the ground of delay on the part of the Government in disposing of the representations submitted either on behalf of the detenus or by the detenus themselves.
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13. In the light of the above, both the Habeas Corpus Petitions are allowed and the orders of detention passed by the second respondent in C.M.P. No.49/S.G./C2/2019 and C.M.P. No.48/S.G./C2/2019 dated 11.11.2019 respectively are set aside and the detenus namely P. Mani, aged about 65 years and P. Shanmugam, aged about 67 years are directed to be set at liberty forthwith, if their detention is not required in connection with any other case.
14. It is now represented by the learned counsel for the petitioners that the petitioner in HCP No. 2733 of 2019 is presently detained in Central Prison, Tiruchirapalli and the petitioner in HCP No. 2735 of 2019 is detained in Central Prison, Cuddalore. The same is recorded and the respective authorities of the Central Prison Cuddalore and Tiruchirapalli are directed to release the detenus in this case forthwith.
(R.P.S.J) (R.P.A.J.,)
06.02.2020
Index : Yes / No
Speaking Order : Yes / No
rsh
To
1. The Principal Secretary to Government
The Department of Home, Prohibition & Excise
Fort Saint George, Chennai - 600 009
2. The District Collector & District Magistrate
District Collectorate
Salem - 636 001
3. The Superintendent of Police
Salem District
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Salem
4. The Superintendent of Prison
Central Prision
Salem
5. The Superintendent of Prison
Central Prison, Tiruchirapalli
6. The Superintendent of Prison
Central Prison, Cuddalore
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hcp 2733 of 2019
R. SUBBIAH, J
and
R. PONGIAPPAN, J
rsh
HCP Nos. 2733 & 2735/2019
06-02-2020
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