Madras High Court
Rani vs The District Magistrate And District ... on 16 December, 2003
Author: A.K. Rajan
Bench: A.K. Rajan
JUDGMENT A.K. Rajan, J.
1. Wife of the detenu is the petitioner herein. The detenu has been detained 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) on the basis of three adverse cases first one under section 307 IPC, second one under sections 285, 286 and 506(ii) IPC and sections 3, 5(A) of Explosive Substance Act and the third one under sections 147, 148, 452, 342, 365, 392, 397, 307 and 506(ii) IPC and section 3(1) of TNPP(DL) Act, 1992 apart from the ground case in crime No.178 of 2003.
2. On 29.3.2003, at 23.30 hours, the complainant Tmt.Suseela appeared before the Inspector of Police, Manalmedu Police Station and gave a statement that she and her elder sister were the wives of late Gandhi Ravi, that her elder sister had got a son and a daughter and she got a son that after the death of her husband, her elder sister also died and she was maintaining the children with the support of Dhanasekaran, the brother of her late husband that whileso, Balaiyan murdered one Kannaiyan of Aathur Village and the that the detenu is the son of the said Kannaiyan and he was in Cuddalore Jail at that time that her in law Dhanasekaran was a close friend of the said Balaiya who masterminded the murder of the father of the detenu and hence, the detenu who had since been released from jail was in enmity with Dhanasekaran and on that account, Dhanasekaran complained to her that the detenu had quarrelled with him and whileso, on 29.3.2003 at 9.00 pm when she, her children and Dhanasekaran were inside the house, the detenu along with three other persons all with aruval came to their house, forcibly entered into the house and stating that Dhanasekaran helped to eliminate his father, attacked him with aruval. Dhanasekar sustained multiple injuries and died on the spot. Thereafter, the detenu left the place. This was registered in crime No.178/2003.
3. On the basis of the materials placed before the detaining authority, the detaining authority arrived at subjective satisfaction that the detention of the detenu is necessary for maintenance of public order and therefore, the order of detention was passed on 3.4.2003. That detention order is challenged in the writ petition.
4. Learned counsel appearing for the petitioner submitted that the representation submitted by the detenu has not been considered in time and there is a delay in considering the representation. Learned Additional Public Prosecutor submitted that there was no delay in considering the representation. He has also furnished the list of dates and submitted that the representation was considered in time.
5. It is seen from the list that the order of detention was passed on 23.4.2003, representation dated 7.5.2003 was received on 8.5.2003, remarks were called on 9.5.2003, remarks were received on 16.5.2003, the file was submitted on the same day viz., 16.5.2003, the file was placed before the Under Secretary, Additional/Deputy Secretary and Minister for Law on 19th, 20th and 21st May 2003 respectively. The representation was rejected on 22.5.2003 and the same was sent to the Central Prison, Trichy on 23.5.2003. Further, the representation from the Central Prison was received on 12.5.2003 and parawar remarks were called for from the sponsoring authority on the same day and remarks were received on 14.5.2003 and report was sent to Government on 14.5.2003. It is further seen that the rejection order was served on 26.4.2003. A perusal of these dates show that there has been not at all delay in considering the representation. The argument of the counsel for the petitioner in this aspect is not acceptable.
6. The learned counsel for the petitioner next submitted that in the remand extension order itself there is a reference that there is a proposal for detaining the detenu and therefore, there is pre-determination to detain the detenu before passing the detention order and this is not permissible and on that ground alone, the detention order is liable to be quashed. The learned Additional Public Prosecutor submitted that a request was made by the Inspector of Police to the court to get a copy of the order of remand and in that letter, the Inspector of Police has stated that as he needed the copy of the remand extension order for the purpose of placing it before the detaining authority. That is what he says that he required it for detaining the detenu. It is not the sponsoring authority who detains a person and the decision making is only the detaining authority and not the Inspector of Police who made this application. It cannot be lost sight of that the detaining authority is not bound by any advice given by the sponsoring authority. The detaining authority has to arrive at subjective satisfaction based on the materials placed by the sponsoring authority and therefore, the decision is made only by the detaining authority and not by the Inspector of Police. In the circumstances, the words contained in the request for getting a copy of the remand order does not in any way affect the detention. Therefore, this agreement of the counsel for the petitioner is also not acceptable.
7. The learned counsel for the petitioner next submitted that the facts complained of the detenu only amounts to infringement of law and order and it cannot be said to be infringement of public order. The detention is to be made only to maintain public peace and public order and therefore, there is no violation of public order and infringement of law and order cannot be a ground to arrive at subjective satisfaction that detention of the detenu is required to maintain public order. This argument of the counsel is not acceptable in view of the definition under Act 14/82. Section 2(f) defines "goonda" as "a person who either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, 1860 (Central Act No.45 of 1860)"
Explanation to section 2(a) reads thus, "For the purpose of this clause (a) public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the person referred to in this clause (a) directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health or ecological system."
A reading of section 2(f) along with explanation to section 2(a) shows that for the purpose of this clause even public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely if any of the activities of any of the person referred to in this clause directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health or ecological system.
8. Considering the adverse cases in which the detenu was involved in offences under sections 307 IPC, 285, 286 and 506(ii) IPC and sections 3, 5(A) of Explosive Substance Act and sections 147, 148, 452, 342, 365, 392, 397, 307 and 506(ii) IPC and section 3(1) of TNPP(DL) Act, 1992, it is clear that the detenu had the tendency to create apprehension of danger or harm or feeling insecurity among the general public. The ground case, though occurred inside the house, cannot be said to have not affected the public order. Some group of people with armed with aruval forcibly entering into a house and murdering a person will certainly create sense of insecurity among the general public in the surrounding areas. Therefore, this contention of the counsel for the petitioner is not acceptable.
9. The learned counsel for the petitioner next submitted that in the grounds of detention it is stated that there is imminent possibility for the detenu to come out on bail moving the High Court of law; but the petitioner had not even filed bail application before the Sessions Court and therefore, the imminent possibility of coming out of bail by the order of High Court was not factually correct. To arrive at such a conclusion, there was no material for the detaining authority. This argument of the counsel for the petitioner is not acceptable as there is no prohibition under any law for filing bail application initially before the Sessions Court and later before the High Court. That is what is referred in the grounds of detention. Therefore, the contention that there is non application of mind is not acceptable.
10. The counsel for the petitioner next submitted that post mortem report found at page 91 of the typed set is not legible and therefore, it amounts to non furnishing of document which handicaps the detenu in making effective representation. This argument of the counsel is not acceptable in view of the fact that translated copy of the same is found at page 93 which is very legible. Therefore, this argument that he was deprived of making effective representation is not correct.
11. The counsel for the petitioner next submitted that the detenu made representation before the Advisory Board seeking for help of a friend but, that was not provided for him. We have perused the file maintained by the Government. The proceedings of the Advisory Board dated 3.6.2003, clearly refers to the fact that the detenu had requested to hear the representation of his wife Tmt.Rani and the Board has also heard the representation of Tmt.Rani. Therefore, the argument that his request to have a friend's assistance was not considered is not factually correct. Therefore, this argument also fails.
12. The learned counsel for the petitioner next submitted that the detention order was intimated after three days. It is seen from the file that the detention order was made ready on 23.4.2003, the detenu was detained from 25.4.2003 and a copy of the detention order was served on the very next day i.e., on 26.4.2003 on the wife of the detenu the petitioner herein. Therefore, this contention of the counsel for the petitioner is also not acceptable.
13. In the result, none of the grounds raised by the petitioner is acceptable. Hence, there is no reason to set aside the detention order. The Habeas Corpus Petition is dismissed.