Madras High Court
Vediyammal vs The State Of Tamil Nadu on 8 May, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, S.Ramathilagam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08-05-2018
C O R A M
THE HONOURABLE Mr.JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE Mrs.JUSTICE.S.RAMATHILAGAM
H.C.P.No.188 of 2018
Vediyammal ..Petitioner
.Vs.
1.The State of Tamil Nadu,
Rep. By its Secretary to Government,
Home Prohibition and Excise (XVI) Department,
Fort St.George, Secretariat,
Chennai 600 009.
2. The District Collector and
District Magistrate of
Krishnagiri,
Krishnagiri District. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, calling for the records in connection with the order of detention passed by the second respondent dated 16.01.2018 in his office Ref.S.C.No.01/2018 against the petitioner's husband by name Thiru.Babu, S/o. Pachiyappan, aged about 35 years, now confined at Central Prison, Salem, Salem District and set aside the same and direct the respondents to produce the above said detenue before this Hon'ble Court and set him at liberty.
For Petitioner : Mr.E.Kannadasan
For Respondents : Mr.R.Ravichandran
Government Advocate
O R D E R
The present Habeas Corpus Petition has been filed challenging the order of detention passed by the 2nd respondent dated 16.01.2018 in his office reference No.S.C.No.01/2018 against the petitioner's husband Thiru.Babu, S/o.Pachiyappan. One adverse case was registered against the detenue on 11.01.2018 in PS Crime No.16/2018 under Section 294(b), 353 and 506(ii) of Indian Penal Code. The said adverse case also in relation to the sand smuggling in a tipper mini lorry. The ground case also has been registered on the same day on 11.01.2018 by the Inspector of Police, Krishnagiri Thaluk Circle. The ground case also in connection with the sand smuggling in mini tipper lorry. The detaining authority came to the conclusion that the detenue is in the habit of indulging in such activities of sand smuggling, which is prejudicial to the maintenance of the public order and public health. In other words, the detenue has been declared as a habitual sand offender and therefore, the detaining authority had taken a decision to inflict the provisions of Act 14 on the detenue.
2. The learned counsel appearing on behalf the petitioner contended that there is an enormous delay in considering the representation submitted on behalf of the detenue, which is in violation of the fundamental rights enshrined to the detenue under the Constitution of India. In this regard, the learned Government Advocate submitted a memo forwarded by the Under Secretary to the Government in respect of the factual details. On a perusal of the said memo, it is found that the representation submitted on behalf of the detenue on 29.01.2018 was received on 02.02.2018. The remarks were called for on 02.02.2018 itself. However, the remarks on the files were received only on 22.02.2018, after a lapse of about 20 days. The said remarks were scrutinized and the files had been submitted to the Under the Secretary for perusal on 22.02.2018 and the Deputy Secretary also dealt with the file on the same day on 22.02.2018. However, the Hon'ble Minister approved the order of detention only on 09.03.2018. Thus, there is a long delay of about 15 days in considering the representation. In this regard, the learned Government Advocate brought to the notice of this Court that 24.02.2018, 25.02.2018, 03.03.2018 and 04.03.2018 are holidays. Inspite of that we are of the opinion that there is a considerable delay in dealing with the representation submitted on behalf of the detenue. The delay caused certainly affects the right of the detenue. In view of the fact that personal liberty is a fundamental right enshrined under the Constitution of India. Once the person is detained under the prevention law, there cannot be any delay in dealing with the representation, and such a delay affects the fundamental rights of the person. The Apex Court of India repeatedly emphasised that the person who was detained under prevention law, if submitted a representation, the same has to be considered and based on the grounds raised, the competent authority is bound to pass an order on merits and in accordance with law, such decision, the delay caused by the authorities will pave way to the detenue to get an order of release from this Court by way of a Habeas Corpus Petition.
3. When this HCP was taken up for hearing by this Court, we have raised a concern that large scale sand smugglings are going on, in our State. People while travelling the National Highway and other State Highway roads are frequently facing troubles from and out of these sand smugglers and their illegal activities. These mini tipper lorry which all are plying in the National Highway and other State highways are causing danger to the public, who are travelling on the road. These persons, who are committing such grave illegality or causing threat to the society and to the public order. People are frequently witnessing such sand smuggling throughout the day and night. We are unable to understand how these sand smugglings are openly happening in the national highway and other state highway, when the jurisdictional police are patrolling the areas frequently. All these sand smugglings are mostly happening with the knowledge of these patrolling vehicle and the jurisdictional police. We raised the question and requested the learned Government Advocate to clarify how many such cases are booked against the public officials, who are all not taking any action against such sand smuggling across the State. The Government Advocate today produced the particulars as per the instruction obtained from the Director of Vigilance and Anti Corruption, Chennai 16. The number of regular cases (trap) registered during the last 10 years are provided.
4. It is an alarming factor that in the year 2017 one non trapped case and 17 cases of trap alone had been registered. When such a sand smugglings are happening in many districts across the State and when these sand smugglers are frequently allowed by the Police to commit such illegality, we are of the opinion that it is the duty of the state as well as the Director General of Police to ensure prompt and quick action in this regard. We are informed that these police stations are receiving mamools (bribe) from these sand smugglers. We are not inclined to go into the details of such illegal activities of the public servants. It is the duty of the Vigilance and Anti Corruption Department to conduct frequent vigil over such activities of the public servants and prompt and immediate actions are imminent to maintain public peace or tranquility. As per the statistics large number of accidents are committed by these mini tipper lorry, which are all used for committing sand smuggling offences.
5. Thus quick action in this regard both by the State as well as by the Director General of Police and also by the Director of Vigilance and Anti-Corruption are certainly imminent.
6. We have raised the further question to the learned Government Advocate appearing on behalf of the State, how many cases were booked under the Act 14 of 1982, in respect of the public officials, who are abating the commission of crime of sand smuggling. In this regard, the learned Government Advocate has no answer at all. The learned Government Advocate in his polite words informed this Court that no case has been registered under Act 14 of 1982 against such public officials, who all are trapped for receiving mamools (bribes) or indulging in corrupt activities or abating sand smugglings across the State. Thus we would like to quote the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 .
7. The very object of the enactment states public order is adversely affected every now and then by the dangerous activities of certain person, who are known as bootleggers, drug-offenders, goondas, traffic offenders and Video Pirates. And whereas having regard to the resources and influences of the persons by whom, the large scale on which and the manner in which the dangerous activities are carried on in the State of Tamil Nadu and particularly in its urban areas, it is necessary to have special law in the State of Tamil Nadu, to provide for preventive detention of these eight classes of persons and for matters connected therewith.
8. The object of the Act has been enumerated in the case of Union of India Vs. Amrit Lal Manchanda [2004 (2) Supreme 150], and it reads as under:-
Object of the Act: The object of law of preventive detention is not punitive but only preventive, that it is restored to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law concerned and that the action of the Executive in detaining a person being only precautionary normally the matter has necessarily to be left to the discretion of the Executive Authority. Now let us look into the provisions of the Act, Section 2 of the Act provides definitions. 2(b) provides definition for Bootleggers ; 2(e) provides definition for Drug offenders; 2(ee) provides definition for Forest Offenders. It is pertinent to note that 2(f) defines a Goonda, means 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 offence [punishable under Section 153 or Section 153-A under Chapter VIII or under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860) or punishable under Section 3 or Section 4 or Section 5 of the Tamil Nadu Property (Prevention of Damages and Loss) Act, 1992 (Tamil Nadu Act 59 of 1992)]. Section 2(gg) defines Sand Offender means a person, who commits or attempts to commit or abets the commission of offences in respect of ordinary sand punishable under the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act 67 of 1957) or under the Tamil Nadu Minor Mineral Concession Rules, 1959.
9. Section 3 provides power to make orders detaining certain persons which is extracted as under:-
3. Power to make orders detaining certain persons.--(1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or video pirates or forest-offender or goonda or immoral traffic offender sand offenders or slum-grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2) If, having regard to the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section:
Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time, by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. Section 4 provides execution of detention orders. Section 5(A) provides grounds of detention.
10. On a perusal of the entire provisions of the Act, we are of the considered opinion that the term Goondas and Sand Offender are defined as stated supra. The word Goonda has been defined so as to include the person, who abets the commission of offence. The word Sand Offender also provides meaning so as to include the person, who abets the commission of offence in respect of ordinary sand punishable under the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act 67 of 1957) or under the Tamil Nadu Minor Mineral Concession Rules, 1959.
11. Considering the very purpose and the object of the Act and also the provisions enumerated, this Court is of an opinion that it is not only the persons, who are committing the offence of sand smugglings alone to be booked and the persons, who are abating commission of offences are also to be punished under the Act.
12. It is not, as if, the Executives/Police Officials of the State are bound to implement the law. It is important that such implementation must be proper, effective and efficient so as to implement such Prevention Laws in its letter and spirit. If such Prevention Laws are implemented in piecemeal or at the whims and fancies of the Executives/Police Officials, then we are afraid that the very object of maintaining the public peace and order would certainly fail. There cannot be any variations or discriminations in respect of implementation of the Act in respect of various classes of offenders enumerated under the Act. The uniformity in the sense, if a driver of a lorry, who has involved in the illegal activity of sand smugglings alone is punished, would not serve the purpose nor the same can be construed as an effective implementation of the Act. Such a piecemeal implementation of the Act, will not only encourage the habitual offenders but also provide scope for corrupt activities by the Executives/Police Officials. Thus, all the persons involved, both the persons involved in the commission of offence as well as the persons who abates the commission of offence, are booked equally under the Act. In this regard, there should not be any leniency or misplaced sympathy by the State or by the competent authorities. The Executives/Police Officials abating such commission of offence by receiving mamools (bribes) or indulging in corrupt activities are also certainly be punished under the Act and that is the very spirit of the Act. Those officials, who have involved in abating the commission of offence are to be brought under the definition of Goondas or as Sand Offenders. However, we are painful to note that the law implementing authorities have so far not booked even a single case against such corrupt public officials under the Act. We are informed that these sand smugglings are frequently happening mostly with the knowledge of the jurisdictional police officials and the revenue officials concerned. The public authorities, who are bound to prevent such illegal activities are either adopting a compromising attitude or receiving mamools (bribes) from such offenders, and closing their eyes and keeping silence. All these offences are to be carefully taken note of and suitable actions under the Act and the Rules are to be initiated without any delay.
13. In view of the discussions, we are of the considered opinion that the public officials, including the police officials and the revenue officials and other concerned officials, the State and the authorities competent/concerned should issue appropriate circulars/instructions in order to ensure effective implementation of the Act and the Rules.
14. As far as the present Habeas Corpus Petition is concerned, there is a considerable delay on the part of the competent authority in considering the representation submitted on behalf of the detenue. Accordingly, the Habeas Corpus Petition stands allowed. The detenue is set at liberty, if he is not otherwise required in any other cases.
15. In conclusion, we direct the Principal Secretary to Government, Home (Police) Department, Fort St. George, Chennai-9, the Director General of Police, Mylapore, Chennai-4 and the Director, Vigilance and Anti-Corruption Department, Greenways Road, Chennai-28, to issue consolidated circulars/instructions to all the law enforcing authorities, including the police stations and other revenue officials across the State, clearly stating that the public servants, who all are abating the commission of the offence of sand smugglings will be punished under The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982. Such consolidated instructions/circulars should contain that the public officials are liable to face both the departmental disciplinary proceedings as well as the penal provisions under the provisions of Tamil Nadu Act 14 of 1982. Such instructions/circulars are directed to be issued within a period of twelve weeks from the date of receipt of a copy of this order.
16. The Registry of the Madras High Court is directed to communicate the copy of this order to (1) The Principal Secretary to Government, Home (Police) Department, Fort St. George, Chennai-9, (2) The Director General of Police, Mylapore, Chennai-4 and (3) The Director, Vigilance and Anti-Corruption Department, Greenways Road, Chennai-28.
Post the matter for reporting compliance on 17.8.2018.
(SMSJ) (SRTJ)
08-05-2018
Internet : Yes / No
Index : Yes / No
Speaking / Non-speaking
msv/sai/Svn
Note: Issue order copy by 09.05.2018
To
1.The Secretary to Government,
Home Prohibition and Excise (XVI) Department,
Fort St.George, Secretariat,
Chennai 600 009.
2. The District Collector and
District Magistrate of
Krishnagiri,
Krishnagiri District.
3.The Public Prosecutor
High Court, Chennai.
S.M.SUBRAMANIAM, J.
and
S.RAMATHILAGAM, J.
msv/sai/Svn
H.C.P.No.188 of 2018
Dated : 08-05-2018