Madras High Court
S.Deepika vs The State Of Tamil Nadu on 2 July, 2013
Bench: M.Jaichandren, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 2.7.2013
CORAM:
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
and
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
H.C.P.No.2603 of 2012
S.Deepika .. Petitioner
vs.
1. The State of Tamil Nadu
Rep. by its Secretary
Home Prohibition and Excise Department
Fort St. George, Chennai-600 009
2. The Commissioner of Police
Chennai Police
Egmore,
Chennai 8 .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the records of the second respondent in Memo No.898/BDFGISSV/2012, dated 4.12.2012 and quash the same thereby direct the detenue Tmt.Devi w/o.Srinivasan detained at Special Prison for women Puzhal, Chennai to be produced before this Court and set the detenue at liberty and to award cost.
For petitioner : Mr.N.R.Elango
senior counsel for Mr.G.Prabakaran
For respondents : Mr.S.Shanmughavelautham
Public Prosecutor, Assisted
by Mr.M.Maharaja, A.P.P.
O R D E R
(Order of the Court was made by M.JAICHANDREN,J) This Habeas Corpus Petition has been filed to call for the records relating to the order of the second respondent, dated 4.12.2012, and quash the same and to produce the detenue, namely, Devi, wife of Srinivasan, confined in the Special Prison for women Puzhal, Chennai, before this Court and to set her at liberty.
2. The second respondent had passed the impugned detention order, dated 4.12.2012, under sub-section (1) of Section 3 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. (Tamil Nadu Act 14 of 1982), read with the orders issued by the State Government, in G.O.(D) No.172, Home, Prohibition and Excise (XIV) Department, dated 18.10.2012, under sub section (2) of Section 3 of the said Act, directing the detention terming her as a 'Goonda'.
3. The petitioner herein is the daughter of the detenue. According to the petitioner, the detenue is a coordinator in a social organization, doing social service to the poor and the needy. The detenue had been falsely implicated in a number of cases due to various extraneous reasons. The detention, as per the order of the second respondent, dated 4.12.2012, is unconstitutional, void and illegal and therefore, is liable to be set aside.
4. Even though various grounds had been raised in the Habeas Corpus Petition filed by the petitioner, the learned counsel appearing on behalf of the petitioner had placed emphasis on the grounds, mentioned hereunder, while stating that the impugned detention order passed by the detaining authority is bad in the eye of law. He had submitted that there was clear non-application of mind, on the part of the detaining authority, while passing the detention order against the detenue.
5. Mr.N.R.Elango, the learned senior counsel appearing for the petitioner had contended, inter alia, that the delegation of the power, under Section 3(2) 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, (hereinafter referred to as the Act), for the passing of the detention order, based on which the detenue had been detained in custody, is defective in nature. Further, the confirmation of the detention order and its communication to the detenue and her family members was not made within a reasonable time. The detaining authority had failed to communicate the order of approval and the confirmation of the said order, as contemplated under the provisions of the Act.
6. The learned counsel appearing for the petitioner had further submitted that the pre-detention representation, sent on 12.11.2012, by way of a telegram had been received by the detaining authority. However, the detaining authority had failed to consider the same before passing the detention order.
7. The learned counsel appearing for the petitioner had further submitted that the detaining authority had failed to inform the blood relatives of the detenue about her detention, under the provisions of the Act. As such, she had lost the opportunity of making representation to the detaining authority, promptly.
8. The learned counsel had further submitted that the jail authorities concerned had not furnished the copies of the relevant records to the detenue and to her family members, within the time specified, under the provisions of the Act. The detenue had not been produced before the Advisory Board, along with the representation sent on behalf of the detenue, dated 17.12.2012, as contemplated under Sections 10 and 11 of the Act. The detaining authority had failed to consider the representation, dated 17.12.2012, before the approval of the impugned detention order, by the state Government. Further, the necessary documents had not been furnished to the detenue for the making of an effective representation.
9. The learned counsel appearing for the petitioner had further submitted that the detaining authority had committed serious irregularities in passing the impugned detention order. There has been total non-application of mind by the detaining authority, while passing the said order. Further, the detaining authority had considered extraneous materials, which are irrelevant to the facts and circumstances of the case, while passing the said detention order.
10. It had been further submitted that even though it has been stated, in page 3 of the grounds of detention, that, on 16.10.2012, one J.Vijaya had appeared before the detaining authority and had given a complaint, there is no record to show that the said complaint had been given, on 16.10.2012. The detaining authority had signed the detention order, mechanically, without applying his mind on the grounds, which were available on record, while passing the detention order. There are various aspects mentioned in the detention order, which are not found in the records furnished to the detenue.
11. The learned counsel appearing for the petitioner had further submitted that, even though it has been stated that the henchmen of the detenue had threatened the alleged victims, the First Information Report does not disclose the names of all the accused persons. It has also been stated, in the grounds of detention, that one Muthulakshmi, the daughter-in-law of Chandra, Manager of Mannargudi, had committed suicide, as her mother-in-law was absconding and that she was not in a position to give convincing answers to the women from whom her mother-in-law had collected the money and paid to I.P.Yesudoss and Devi, who, along with certain others, had found the Aphro Trust, a Non-Banking Financial Trust. However, such information had not been available in the paper book supplied to the detenue. Thus, it is clear that the detaining authority had passed the detention order, mechanically, without considering the relevant materials.
12. The learned counsel had further submitted that the conclusion arrived at by the detaining authority has not been supported by the available records. There is nothing to show that the detenue had involved herself in the commission of grave offences, in an organized and systematic manner, causing adverse effects on the alleged victims, as well as on the society at large. The detaining authority had failed to note that the adverse cases arising out of the offences, said to have been committed by the detenue, do not fulfil the requirements contemplated under Section 2(f) of the Act to term the detenue as a 'Goonda'.
13. The learned counsel had further submitted that, in paragraph 4 of the grounds of detention, the detaining authority had stated that the detenue is in remand, in Central Crime Branch X Cr.Nos.396/2012, 403/2012, 437/2012, 446/2012 and 531/2012 and that the detenue has moved bail applications in the said cases, before the Chief Metropolitan Magistrate Court, Egmore, in Crl.M.P.Nos.5340/2012, 5342/2012, 5781/2012, 5782/2012, and 5778/2012 respectively. The said bail applications had been dismissed, on 16.11.2012. The detaining authority has further stated that the detenue has moved bail applications, once again, in respect of the said crime numbers, before the Principal Sessions Court, Chennai,in Crl.M.P.Nos.11827/2012, 11828/2012, 11829/2012, 11830/2012 and 11831/2012, respectively, and that they are pending. It has been further stated that, in a similar case, registered at the Central Crime Branch Crime No.296/2012, under Sections 406 and 420 of I.P.C., bail had been granted by the Court of sessions, Chennai, in Crl.M.P.No.7225/2012. Therefore, the detaining authority had inferred that there is a real possibility of the detenue coming out on bail, in Central Crime Branch X Cr.Nos.396/2012, 403/2012, 437/2012, 446/2012 and 531/2012.
14. It has also been stated, in the grounds of detention, that, if the detenue comes out on bail, she would indulge in further activities, which would be prejudicial to the maintenance of public order, and recourse to the normal criminal law would not have the desired effect of effectively preventing her from indulging in such activities. However, the detaining authority had failed to note that the case, in Cr.No.296/2012, is not similar in nature to the cases referred to by the said authority, pertaining to the detenue.
15. The learned counsel had further submitted that the case, in Cr.No.296/2012, referred to by the detaining authority, as a similar case, is relating to a dispute between the partners in a partnership firm, relating to the dishonour of a cheque. Thus, it is clear that the facts and circumstances of the case, in Cr.No.296/2012, is different in nature. It has also been stated that all the relevant records relating to the case in crime No.296/2012 had not been furnished to the detenue. Only a copy of the bail order had been furnished to the detenue. Thus, the detenue had been prevented from making an effective representation against the impugned detention order.
16. Further, the facts and circumstances of the case referred to by the detaining authority, as a similar case, are different in nature. The said case does not relate to a co-accused. The case, in crime No.296/2012, referred to by the detaining authority, is relating to a person, who is not connected with the cases pertaining to the detenue. As such, the conclusion of the detaining authority that there was a real possibility of the detenue coming out on bail, in Central Crime Branch X Cr.Nos.396/2012, 403/2012, 437/2012, 446/2012 and 531/2012, is not sustainable, either in law or on facts.
17. It has been further stated that the alleged ground case is concerned only with the law and order problem and it would not amount to disturbance of public order. Even if the allegations made against the detenue are true, it cannot be said that they would be prejudicial to public order. The detenue could be dealt with under the ordinary criminal law. Therefore, there is no necessity for detaining the detenue under the Act.
18. The learned senior counsel appearing for the petitioner had further submitted that the gravity of the offence could not be looked into by the detaining authority, while passing the detention order. He had relied on the decision of the Supreme Court, in KUNDANBHAI DULABHAI SHAIKH Vs. DISTT. MAGISTRATE, AHMEDABAD AND OTHERS (1996) 3 SCC 194), in support of his contentions. The learned counsel had referred to paragraph 25 of the said decision of the Supreme Court, which reads as follows:
"25. Black-marketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm hand, but when it comes to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicated in Mahesh Kumar Chauhan's case (1990) 3 SCC 148 and in an earlier decision in Prabhu Dayal Deorah v. District Magistrate, AIR 1974 SC 183, in which it was observed that the gravity of the evil to the community resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by law particularly as normal penal laws would still be available for being invoked rather than keeping a person in detention without trial."
19. The learned counsel had further submitted that, even if panic and terror are caused due to the acts of assault or murder committed by a detenue, it cannot be held that it would disturb the even tempo of the life of the community in the locality concerned. In support of the said contentions, the learned counsel had relied on paragraph 4 of the decision of the Supreme Court, in DIPAK BOSE ALIAS NARIPADA Vs. STATE OF WEST BENGAL (1973) 4 SCC 43, which reads as follows:
"4. The question, therefore, to be properly asked in the present case is whether acts attributed to the petitioner in the grounds of detention fell in the same class and have the same kind of impact as acts alleged In the cases above referred to. In the two incidents described in the grounds the petitioner was said to have been accompanied by certain associates and it was also alleged that he and his associates carried with them certain weapons including bombs. The first Incident was said to have taken place on August 12, 1971, when one Kashinath Shah was killed on a public road. The second incident was said to have taken place on August 26, 1971 when one Jyotirmay was dragged out of the shop and killed on the road. Both the acts were said to have caused panic and terror in the locality. Neither of the grounds, however, suggested that the petitioner or any one of his associates used bombs in perpetrating the crime, nor was it suggested that the acts were done in pursuance of or for promoting a certain political ideology as in some cases which have recently come up before this Court, so that other persons of the locality not subscribing to that cult or ideology might feel apprehensive that they would next become the targets of similar attacks in future and thus disturb the even tempo of the life of the community in that locality. Every assault in a public place like a public road and terminating in the death of a victim is likely to cause horror and even panic and terror in those who are the spectators. But that does not mean that all of such incidents do necessarily cause disturbance or dislocation of the community life of the localities in which they are committed. There is nothing in the two incidents set out in the grounds in the present case to suggest that either of them was of that kind and gravity which would jeopardise the maintenance of public order. No doubt bombs were said to have been carried by those who are alleged to have committed the two acts stated in the grounds. Possibly that was done to terrify the respective victims and prevent them from offering resistance. But it is not alleged in the grounds that they were exploded to cause terror In the locality so that those living there would be prevented from following their usual avocations of life. The two incidents alleged against the petitioner, thus, pertained to specific individuals, and therefore, related to and fell within the area of law and order. In respect of such acts the drastic provisions of the Act are not contemplated to be resorted to and the ordinary provisions of our penal laws would be sufficient to cope with them."
20. The learned counsel appearing for the petitioner had further submitted that the concepts of law and order and public order are different in nature. He had relied on the decision of the Supreme Court, in K.K.SARAVANA BABU Vs. STATE OF TAMIL NADU AND ANOTHER (2008) 9 SCC 89), wherein, the Supreme Court has explained in clear terms the distinction between public order and law and order.
21. The learned senior counsel appearing for the petitioner had relied on the decision of the Supreme Court, in REKHA Vs. STATE OF TAMIL NADU (2011) 5 SCC 244), in support of his contention that the detaining authority should make out a good case for passing the order of detention stating that there was a real or imminent possibility of the detenue coming out on bail. The statement of the detaining authority that there was a real or imminent possibility of the detenue coming out on bail in the absence of sufficient materials to support such a view, would be mere ipse dixit and therefore, such a statement cannot be sustained. As such, the detention order passed by the detaining authority would stand vitiated. Further, the learned senior counsel had placed emphasis on paragraphs 29 and 30 of the said decision, which read as follows:
"29. Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It follows, therefore, that if the ordinary law of the land (Indian Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."
22. The learned counsel had further submitted that only the first and third pages of the First Information Report concerned had been furnished to the detenue, along with the detention order. As such, the detenue had not been given sufficient opportunity to make a prompt and effective representation against the impugned detention order.
23. The learned counsel had also relied on the decision of the Supreme Court, in ICCHU DEVI CHORARIA Vs. UNION OF INDIA (AIR 1980 SC 1983), wherein, it had been held that an unreasonable delay in the supply of the documents relied upon the detaining authority in formulating the grounds of detention would render the detention order illegal. Even though the copies of some of the relevant documents had been furnished to the detenue on a later date, the detenue was not in a position to submit an effective representation at the earliest possible.
24. The learned counsel had also relied on a decision of the Division Bench of this Court, in FARZANA HAJI SUMAR Vs. THE STATE OF TAMIL NADU (2006 (5) CTC 487), in support of his contention that the subjective satisfaction arrived at by the detaining authority is defective in nature, due to the non-supply of the relevant documents to the detenue, and as it had prevented the detenue from making an effective representation.
25. The learned senior counsel appearing for the petitioner had also relied on the decision of the Supreme Court, in HUIDROM KONUNGJAO SINGH Vs. STATE OF MANIPUR AND OTHERS (2012) 7 SCC 181. The learned senior counsel had further submitted that the impugned detention order passed by the detaining authority cannot be sustained in the eye of law, as the detaining authority, while passing the said detention order, had taken into consideration irrelevant materials.
26. The learned senior counsel appearing for the petitioner had stated that one Muthulakshmi, the daughter-in-law of Chandra, the Manager of the Mannargudi unit of the Aphro Trust, a Non-Banking Financial Trust, had committed suicide, as she could not answer the queries raised by the women from whom her mother-in-law had collected money for the said Trust. Such facts, even if they are true, cannot be taken into consideration for the passing the detention order, as they are totally irrelevant. As such, the impugned detention order passed by the detaining authority is illegal and void. Further, no materials relating to the said incidents had been supplied to the detenue. However, certain documents relating to the said incidents had been given to the detenue, along with the letter, dated 22.12.2012, but there is no explanation in the said letter as to how the said documents are relevant to the facts and circumstances of the present case. The said documents had been furnished to the detenue, even though no requests had been made by the detenue for the same.
27. The learned counsel had also relied on the decision of the Supreme Court, in STATE OF T.N. Vs. SENTHIL KUMAR (1999) 2 SCC 646), in support of his contention that reasons for the furnishing of the documents in question had not been stated by the detaining authority. Thus, the detenue had been kept in the dark about the purpose of furnishing the documents and therefore, the detenue was not given the earliest opportunity to make an effective representation against the order of detention. Paragraphs 11, 12 and 13 of the said order read as follows:
"11. Now adverting to the facts of this case, it is not in dispute that the grounds of detention were served on the detenu within the specified time. The documents in question given to the detenu are not supplemental or additional grounds but additional material in support of the grounds already conveyed to the detenu.
12. Though, the documents furnished to the detenu in this case fall in the 'other types, as the State has acted in conflict with the safeguard of giving the earliest opportunity to the detenu to make an effective representation inasmuch as the documents were sent to him in a casual manner without a covering letter and without being told for what purpose they were sent to him and without mentioning that they would be placed before the Advisory Board as well as the Government in connection with the confirmation of the order of detention; consequently, he was deprived of his right to make an effective representation to the Government. Whereas punitive incarceration is after trial on the allegations made against a person, preventive detention is without trial into the allegations made against him. The Courts, therefore, adhere to strict compliance of the procedural safeguards in every case of preventive detention. A usual or random approach in complying with procedural safeguards more often results in infringement of the safeguard and validates the detention. In this view of the matter, the fact that the wife of the detenu did file a representation is no answer to the complaint of the detenu that had he been informed that those documents were intended to be placed before the Advisory Board and that would also be taken into consideration for purposes of passing the order of confirmation under Section 8(f) of the COFEPOSA Act, he would have made an effective representation. At any rate, he would not have complained that he did not have the opportunity to make an effective representation.
13. On the facts of the case, we are satisfied that the manner in which documents were served on the detenu did cause confusion to the detenu as he was kept in the dark about the purpose of furnishing the documents and far from giving him the earliest opportunity to make an effective representation, it deprived him of the chance of making a representation which resulted in infringement of right guaranteed under Article 22(5) of the Constitution. The High Court was, therefore, right in quashing the impugned order of detention. We do not find any merit in the appeal and accordingly we dismiss the same."
28. The learned counsel had also pointed out that a similar view has been expressed by the Supreme Court, in NANDOLI MOHAMED RAFEEQ Vs. UNION OF INDIA AND OTHERS (2004) 12 SCC 218).
29. The learned senior counsel appearing for the petitioner had also submitted that, when the Commissioner of Police, Chennai, who has passed the detention order, had also received the initial complaint made against the detenue, and therefore, it would not be appropriate for the said authority to pass the detention order. Thus, it is clear that it would be inappropriate for the same authority to initiate the investigation against the detenue and to pass the detention order.
30. The learned counsel appearing for the petitioner had also submitted that, after the lapse of twelve days from the date of the detention order, the detaining authority becomes functus officio. The impugned order of detention had been passed by the detaining authority, on 4.12.2012. The detenue had made a representation, dated 17.12.2012, against the impugned detention order passed by the detaining authority and the said representation had been received by the detaining authority, on 19.12.2012. The detaining authority had considered the said representation and had passed an order rejecting the same, on 22.12.2012, beyond the period of twelve days from the date of the passing the detention order. Thus, it is clear that the impugned order of detention is unsustainable in the eye of law.
31. Per contra, the learned Public Prosecutor appearing on behalf of the respondents had submitted that the allegation made by the petitioner that the detenue had been falsely implicated in false and fabricated cases, due to political pressure, is denied. It is only on specific complaints, the cases had been registered against the detenue. The cases had been filed against the detenue, based on sufficient material evidence.
32. The learned Public Prosecutor appearing on behalf of the respondents had submitted that it is not correct to state that the order of detention passed by the second respondent is ultra vires the Constitution of India. It is not mala fide in nature, as alleged by the petitioner. Further, it is not correct to state that the delegation of power, under Section 3(2) of the Act, is defective in nature. The allegation made by the petitioner that the confirmation of the detention order and the further communications of the same was not made in time is not sustainable. The order of detention was confirmed, after the receipt of the opinion of the Advisory Board, on 14.2.2013. The confirmation of the detention order had been made only after exercising due and proper care.
33. The learned Public Prosecutor appearing on behalf of the respondents had further submitted, based on the counter affidavit filed on behalf of the second respondent, that no pre-detention representation had been received and placed before the second respondent for his consideration. Further, the petitioner had not furnished sufficient details in the affidavit filed in support of the Habeas Corpus Petition, with regard to the pre-detention representation said to have been submitted on behalf of the petitioner.
34. The learned Public Prosecutor appearing on behalf of the respondents had further submitted that it is incorrect to state that the necessary information had not been given to the members of the family of the detenue regarding the detention. In fact, written communication had been issued to Rosemary, sister of the detenue, on 5.12.2012, informing her about the place, date and the purpose of the detention of the detenue. The grounds of detention and the necessary documents had been furnished to the detenue, by the jail authorities, on 8.12.2012, itself.
35. It had been further stated that, on 9.1.2013, the detenue had been produced before the Advisory Board, along with the representation sent on behalf of the detenue, including the representation, dated 17.12.2012.
36. It had been further submitted that the order of detention passed on 4.12.2012, and the approval for the detention order had been given, on 14.12.2012, by the first respondent. The representation alleged to have been submitted by the petitioner is dated 17.12.2012. Since the said representation had been submitted three days after the approval had been granted for the detention order, it had not been considered by the second respondent detaining authority. However, the said representation had been considered by the Government, after the approval had been granted, on 14.12.2012.
37. It had also been stated that the complaint of Vijaya, dated 16.10.2012, registered as Central Crime Branch X in Cr.No.531 of 2012, and the First Information Report had been furnished to the detenue, as document No.576, on her request. Further, copies of the said documents had been furnished to the detenue, on 25.12.2012, along with the copies of certain other documents.
38. It had also been stated that it is clear from the First Information Report that the statements made under Section 161 of the Criminal Procedure Code, by the complainant and the other witnesses in the incident in question, had taken place, on 23.7.2012. The complaint copy of Chandra was furnished to the detenue, on 25.12.2012, on her request.
39. It had been further submitted that the detenue had cheated about 15,000 persons, involving an amount of about Rs.15 crores, in a manner prejudicial to the maintenance of public order.
40. It had been further submitted that the bail applications moved on behalf of the detenue, in Central Crime Branch X Cr.Nos.396/2012, 403/2012, 437/2012, 446/2012 and 531/2012, before the Principal Sessions Court, Chennai, in Crl.M.P.Nos.11827, 11828, 11829, 11830 and 11831 of 2012, are pending. Since, bail had been granted in a similar case, arising under Sections 406 and 420 of I.P.C., similar to the cases pending on the file of the Principal Sessions Court, Chennai, the detaining authority had arrived at his subjective satisfaction stating that there was a real possibility of the detenue coming out on bail, in Central Crime Branch X Cr.Nos.396/2012, 403/2012, 437/2012, 446/2012 and 531/2012.
41. It had also been stated that the incident that had taken place, on 23.7.2012, clearly shows that it falls within the realm of public order. The grounds of detention and connected statements would clearly show as to how the acts committed by the detenue would be prejudicial to the maintenance of public order. Thus, it could be noted that the impugned detention order passed by the detaining authority, dated, 4.12.2012, cannot be held to be invalid and void. As such, the Habeas Corpus Petition filed by the petitioner is devoid of merits and therefore, it is liable to be dismissed.
42. The learned Public Prosecutor, appearing on behalf of the respondents, had submitted that the contention of the learned senior counsel for the petitioner that the normal law would take care of the offences alleged to have been committed by the detenue cannot be sustained. The order of detention passed by the detaining authority is not punitive in nature. In fact, it is preventive in nature. The order of detention is passed in order to prevent the detenue from committing further offences, which could be prejudicial to the maintenance of public order. Even if normal laws are in existence to punish the detenue, it would be open to the detaining authority to pass the detention order to detain the detenue. As it was found that it would be in public interest to keep the detenue in custody, the order of detention had been passed, as a precautionary measure.
43. The learned Public Prosecutor appearing for the respondents had further submitted that the objects and the reasons behind the enactment of the Act has to be looked into. If the gravity of the offences committed by the detenue is likely to disturb the maintenance of public order, it would be open to the detaining authority to pass the detention order, to keep the detenue in custody, in order to prevent her from indulging in such activities in future.
44. The learned Public Prosecutor, appearing for the respondents, had relied on the decision of the Supreme Court, in HARADHAN SAHA Vs. the STATE OF WEST BENGAL AND OTHERS (1975) 3 SCC 198) wherein, it had been held that, merely because the detenu is liable to be tried in a criminal Court, for the commission of a criminal offence, or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure, would not by itself debar the Government from taking action for his detention under the Act. The order of detention is a precautionary measure. It is based on the reasonable prognosis of the future behaviour of the person, based on the past conduct, in the light of the surrounding circumstances.
45. The learned Public Prosecutor, appearing for the respondents, had also relied on the decision of the Supreme Court, in STATE OF MAHARASHTRA AND OTHERS Vs. BHAURAO PUNJABRAO GAWANDE (2008) 3 SCC 613), wherein, it had been held that there is no authoritative definition of preventive detention, either in the constitution, or in any other statute. The expression, however, is used in contradistinction to the word punitive. It is not a punitive or a penal provision, but is in the nature of a preventive action or a precautionary measure. The primary object of the preventive detention is not to punish the person for having done something, but to intercept him before he does it. It had also been held that the liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. Security of state, maintenance of public order and services essential to the community, prevention of smuggling and blackmarketing activities etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.
46. The learned Public Prosecutor, appearing for the respondents, had also submitted that the contentions of the learned senior counsel for the petitioner that the acts alleged to have been committed by the detenue cannot be said to be prejudicial to the maintenance of public order, as such acts may only amount to a law and order situation, cannot be accepted.
47. The learned Public Prosecutor, appearing for the respondents, had submitted that the Supreme Court, in ASHOK KUMAR Vs. DELHI ADMINISTRATION AND OTHERS (1982) 2 SCC 403), had held that preventive detention is devised to afford protection to the society. Therefore, the preventive measures initiated, even if they involve such restraint and hardship upon certain individuals, cannot be taken as a punishment. It had been further held that the distinction between the concepts of 'public order' and law and order lies not in the nature of and quality of the act, but in the degree and extent of its reach upon the society. The distinction between the two concepts is a fine one.
48. The learned Public Prosecutor, appearing for the respondents, had relied on the decision, in HARPREET KAUR Vs. STATE OF MAHARASHTRA (1992) 2 SCC 177), wherein, the Supreme Court had held that it is the degree and the extent of the reach of the objectionable activity upon the society which is vital for considering the question whether a person has committed only a breach of 'law and order', or has acted in a manner likely to cause disturbance to public order. It is the potentiality of the act to disturb the even tempo of the life of the community, which makes it prejudicial to the maintenance of public order.
49. The learned Public Prosecutor appearing for the respondents had relied on the decision, in SUBRAMANIAN Vs. STATE OF TAMIL NADU (2012) 4 SCC 699), wherein, the Supreme Court had held that when the grounds of detention are precise, pertinent, proximate and relevant, the subjective satisfaction formed on that basis, by the detaining authority, for passing the detention order, would not be open to interference by the courts of law. If the acts of the detenue and the detenues henchmen causes threat and creates panic among the public, the detaining authority would be justified in passing the detention order, in order to safeguard and protect the interests of public.
50. The learned public prosecutor, appearing for the respondents, had further submitted that the contention raised on behalf of the petitioner that there was no imminent possibility of the detenue coming out on bail is liable to be rejected. The detaining authority had clearly stated in the grounds of detention that there was a real possibility of the detenue coming out on bail, as bail had been granted by the Court concerned, in a similar case.
51. The learned public prosecutor appearing for the respondents had further submitted that the mere pendency of a bail application on the file of the Court concerned would be sufficient for the detaining authority to come to the conclusion that there was a real possibility of the detenue coming out on bail, by getting a bail order.
52. The learned public prosecutor, appearing for the respondents, had relied on the decision of the Supreme Court, in REKHA Vs. STATE OF TAMIL NADU (2011) 5 SCC 244), to state that if the detaining authority is aware of the fact that the detenue is in custody and that the said authority is reasonably satisfied, based on the cogent materials available, that there is a likelihood of his release and that, in view of his antecedent activities, he may indulge in prejudicial activities, the detention order can be validly made. It had also been held that there would be a real possibility of the release of a person, who is already in custody, on bail, provided he had moved a bail application which is pending. It follows logically that, if no bail application is pending, there is no likelihood of the person in custody being released on bail and hence, the detention order would be illegal. However, there can be an exception to the said rule, that is, where a co-accused, whose case stands on the same footing, had been granted bail. In such cases, the detaining authority can reasonably conclude that there was a likelihood of the detenu being released on bail, even though no bail application of his is pending. The details of such alleged similar cases must be given to the detenu.
53. The learned Public Prosecutor, appearing for the respondents, had also relied on the decision of the Supreme Court, in HUIDROM KONUNGJAO SINGH Vs. STATE OF MANIPUR AND OTHERS (2012) 7 SCC 181), to state that, merely for the reason that somebody else in a similar case had been granted bail, there could be no presumption that in the case in hand the detenu would be released on bail, if he had applied for it. If the impugned order of detention is based on ipse dixit statement in the grounds of detention, it cannot be sustained in the eye of law.
54. The learned Public Prosecutor, appearing for the respondents, had also relied on the decision of the Supreme Court, in G.REDDEIAH Vs. GOVERNMENT OF ANDHRA PRADESH (2012) 2 SCC 389), to state that it is clear that if the detaining authority is aware of the relevant facts that the detenu was under custody and that he would be released, or likely to be released, and if an order is passed after due satisfaction in this regard, the order of detention would be valid. It had also been held that in a matter of detention the law is clear that, as far as subjective satisfaction is concerned, it should either be reflected in the detention order, or in the affidavit justifying the said order. Once the detaining authority is subjectively satisfied that the detenu would continue to commit the offences, habitually, and that it would be difficult to control him under the normal circumstances, the detaining authority would be free to pass an appropriate order to detain the detenu in custody.
55. The learned Public Prosecutor appearing for the respondents had further submitted that there are only two persons, who are accused in the present case and that both of them had been detained under the Act. The acts committed by the detenue is a serious case of cheating, involving a large number of persons. The detained person and her henchmen had been threatening the witnesses, who had demanded the return of their money, which had been paid to her, as advance, for the obtaining of their loans.
56. The learned Public Prosecutor appearing for the respondents had further submitted that the offences committed by the detenue had been considered by the detaining authority. The offences had arisen under Sections 406 and 420 of the Indian Penal Code. In a similar case pointed out by the detaining authority, bail had been granted by the Court concerned. Therefore, the detaining authority had come to the conclusion that there was a real possibility of the detenue coming out on bail and would indulge in activities prejudicial to the maintenance of public order.
57. The learned Public Prosecutor appearing for the respondents had further submitted that the learned senior counsel for the petitioner had contended that the detenue had not been furnished the second page of the First Information Report, along with the detention order. The non-furnishing of the said First Information Report in its full form had caused serious prejudice to the detenue, as she could not make an effective representation, at the earliest point of time. Such a contention raised on behalf of the petitioner cannot be accepted. The detenue cannot be said to be prejudiced by the non-furnishing of the second page of the First Information Report, as all the necessary particulars were found in the statements made by the complainant and the other witnesses, under Section 161 of the Criminal Procedure Code. Further, the second page of the First Information Report had also been furnished to the detenue, pursuant to the representation made by her.
58. The learned Public Prosecutor, appearing for the respondents, had also submitted that the mentioning of the incident of suicide committed by Muthulakshmi, the daughter-in-law of Chandra, Manager of the Mannargudi unit of the Aphro Trust, in the grounds of detention, cannot be held to be prejudicial in nature. The detaining authority, while narrating the facts and the circumstances of the case, had mentioned about the suicide committed by Muthulakshmi, as she was not in a position to answer the women, who had paid the advance amounts for obtaining the loans. Such a passing remarks by the detaining authority cannot cause any prejudice to the detenue, even if the relevant records relating to the said incident had not been furnished to the detenue.
59. The learned Public Prosecutor, appearing for the respondents, had relied on the decision of a Division Bench of this Court, in LAKSHMIBAI Vs. STATE OF TAMIL NADU REP. BY SECRETARY TO GOVERNMENT PUBLIC (SC) DEPT., CHENNAI-9 (2001 (1) MWN (Cr.) 48. He had submitted that it is unnecessary to furnish the copies of the documents to which a casual and a passing reference had been made and which had not been relied upon by the detaining authority while passing the order of detention. The detenue must show that the non supply of such documents had impaired or prejudiced her right, in some way.
60. The learned Public Prosecutor, appearing for the respondents, had also relied on the decision of the Supreme Court, in ABDUL SATHAR IBRAHIM MANIK Vs. UNION OF INDIA AND OTHERS (1992) 1 SCC 1, wherein, it had been held that, when the detaining authority had merely referred to certain incidents, while narrating the events that had lead to the passing of the detention order, especially, when he had not relied upon the same, the failure to supply such documents cannot cause any prejudice to the detenu in making an effective representation. The learned Public Prosecutor, appearing for the respondents, had also relied on the decision, in SURIYA MOORTHY Vs. STATE OF TAMIL NADU (1998) (2) CTC 7), to reiterate his contentions.
61. The learned Public Prosecutor appearing for the respondents had further submitted that the reference made by the detaining authority, regarding the suicide committed by Muthulakshmi, had no impact on the detention order. Hence, it cannot be stated that the detenue had been prejudiced due to the non-furnishing of the relevant documents relating to the said incidents. The learned Public Prosecutor appearing for the respondents had relied on the decisions in J.ABDUL HAKEEM Vs. STATE OF T.N. (2005 7 SCC 70) and STATE OF TAMIL NADU Vs. ABDULLAH KADHER BATCHA, (dated 12.11.2008 in Crl.A.No.231 of 2001) in support of his contentions.
62. The learned Public Prosecutor appearing for the respondents had relied on the decision of the Supreme Court, in U.VIJAYALAKSHMI Vs. STATE OF T.N. AND another (1995 SCC CRI) 176), wherein, it had been held that the Court cannot probe into the correctness of the alleged facts, as it had the limited role in the matter of examining the validity of the detention order. Even if a ground relied on by the detaining authority for the passing of the detention order is extraneous or irrelevant, it would not affect the validity of the detention order, in view of the introduction of Section 5-A of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982.
63. The learned Public Prosecutor appearing for the respondents had further submitted that, even if certain documents had been furnished to the detenue after the passing of the detention order, along with the covering letter, it cannot be held that the detenue would be prejudiced, even if the said letter does not contain the detailed explanation for the non-furnishing of the documents sent along with it at an earlier point of time. Even if certain irrelevant documents had been sent to the detenue, it would not prejudice her interest, as alleged by the learned senior counsel for the petitioner.
64. The learned Public Prosecutor appearing on behalf of the respondents had submitted that the communication sent by the detaining authority, dated 22.12.2012, pursuant to the representation submitted on behalf of the detenue, dated 17.12.2012, is not a rejection of the said representation. It is only a communication sent by the detaining authority enclosing certain documents based on the request made on behalf of the detenue. In fact, the state Government had rejected the representation, dated 17.12.2012, sent on behalf of the detenue, by its communication, dated 31.12.2012.
65. The learned Public Prosecutor appearing for the respondents had relied on the decision of the Division Bench of this Court, in K.VELU Vs. THE STATE OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT, PUBLIC (SC) DEPARTMENT AND OTHERS (2003 (4) CTC 321). Paragraph 12 of the said decision reads as follows:
"12. In our view, in order to attract the infringement of Art.22(5) of the Constitution, the following factors are a must. There should be a supply of document, which is in the nature of "additional material" in support of the grounds already supplied to the detenu meaning thereby, that such documents should have a relevance to the detention aspect or nexus with the detention or should have some connection with it. If such document is supplied during detention then, however, an adequate care must be taken to see that the detenu is not confused. For this, wherever necessary, the authorities may explain in a separate covering letter. However, a 'covering letter' is not a must and its' absence does not vitiate the detention where such covering letter is superfluous, which is precisely the case here. Since we have answered the reference in negative, we would choose to dismiss the habeas corpus petition."
66. In view of the said decision, the learned Public Prosecutor appearing for the respondents had submitted that the covering letter, dated 22.12.2012, issued by the detaining authority is superfluous in nature. It has referred to certain documents, which do not form the basis for the detention order. As such, the detenue cannot be said to be aggrieved due to the communication issued by the detaining authority, dated 22.12.2012.
67. The learned public Prosecutor appearing for the respondents had also submitted that effective steps had been taken, by the state Government, to bring to book all those who are involved in the large scale fraud committed on thousands of innocent persons. He had submitted that the detenue, along with her accomplices, had cheated the public, within the Chennai area, to the tune of more than 33 crores of rupees. He had further submitted that a large number of complaints had been received against the Aphro Trust, a Non-Banking Financial Trust, and all those cases have been transferred to the Economic Offences Wing, for being investigated. In such circumstances, this Court may be pleased to dismiss the Habeas Corpus Petition.
68. In view of the submissions made by the learned senior counsel appearing on behalf of the petitioner and the learned Public Prosecutor appearing on behalf of the respondents and on a perusal of the records available, and on considering the decisions cited supra, it is noted that the second respondent, who is the detaining authority, had passed the impugned detention order, dated 4.12.2012, detaining the detenue, under 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. The detaining authority has stated, in paragraph 4 of the grounds of detention, that he is aware that the detenue is in remand in Central Crime Branch X Cr.Nos.396/2012, 403/2012, 437/2012, 446/2012 and 531/2012 and that the detenue has moved bail applications in the said cases. However, the said bail applications had been dismissed, on 16.11.2012, by the Chief Metropolitan Magistrate, Egmore, in Crl.M.P.Nos.5340/2012, 5342/2012, 5781/2012, 5782/2012, and 5778/2012, respectively. It had also been stated that the detenue had moved another bail application in the said cases, before the Principal Sessions Court, Chennai, in Crl.M.P.No.11827/2012, 11828/2012, 11829/2012, 11830/2012 and 11831/2012, respectively and that they are pending on the file of the said Court.
69. It had also been stated that, in a similar case registered at the Central Crime Branch Crime No.296/2012, under Sections 406 and 420 of I.P.C., bail had been granted by the Court of sessions, Chennai, in Crl.M.P.No.7225/2012. Therefore, it had been inferred that there was a real possibility of the detenue coming out on bail in Central Crime Branch X Cr.Nos.396/2012, 403/2012, 437/2012, 446/2012 and 531/2012. It had also been stated that if the detenue comes out on bail, she would indulge in further activities, which would be prejudicial to the maintenance of public order. However, it is noted that the case referred to by the detaining authority, in paragraph 4 of the grounds of detention, does not relate to a co-accused in the cases relating to the detenue. Further, it cannot be said that the cases relating to the detenue are not similar in nature with the case in Central Crime Branch Crime No.296/2012, on facts. Even though the case, in Central Crime Branch Crime No.296/2012, is said to be similar in nature, arising under Sections 406 and 420 Indian Penal Code, it cannot be said that they are similar in nature, in respect of other aspects, with the cases concerning the detenue. Further, only a copy of the bail order, relating to crime No.296/2012, had been furnished to the detenue.
70. Even though the Detaining Authority had stated, in the grounds of detention, that there is a real possibility of the detenue coming out on bail, there is nothing available on record to substantiate such a claim. Unless, there are sufficient and cogent materials for the detaining authority to arrive at his conclusion that there is a real possibility of the detenue coming out on bail and indulging in activities, which would be prejudicial to the maintenance of public order, the conclusion of the detaining authority would be a mere ipse dixit and as such, the conclusion arrived at by the detaining authority cannot be held to be valid in the eye of law.
71. Further, unless, the similar case referred to by the detaining authority, in the grounds of detention, are comparable with the cases relating to the detenue, in all aspects, it would not be open to the detaining authority to arrive at his conclusion that the detenue would be enlarged on bail. In the present case, it has not been shown that all the relevant materials relating to similar cases, referred to by the detaining authority, had been furnished to the detenue, in order to enable her to make an effective representation against the detention order. The failure of the detaining authority to furnish all the materials would, no doubt, cause substantial prejudice to the detenue, resulting in the failure on the part of the detaining authority in following the mandate, enshrined in Clause(5) of Article 22 of the Constitution of India.
72. Even though the detaining authority had stated that the order of detention is passed in order to prevent her from indulging in activities, which would be prejudicial to the maintenance of public order, no cogent materials were available on record to substantiate such a claim.
73. In a number of decisions this Court had held that cogent materials should be available for the detaining authority to arrive at his subjective satisfaction for the passing of the detention order. The materials available on record should be sufficient for the detaining authority to arrive at his decision that the detenue is likely to be enlarged on bail and that, in such a case, she would indulge in activities, which would be prejudicial to the maintenance of public order. Unless, such materials are available, the decision of the detaining authority to detain the detenue, by passing the detention order, would clearly be an indication of non-application of mind on the part of the detaining authority, while passing the detention order.
73.1) In VELUMURGAN @ VELU Vs. THE COMMISSIONER OF POLICE (2005(1) CTC 577), it had been held as follows:
3 unless there is a clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application, the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu coming out on bail or likelihood of the detenu being released on bail, the detaining authority may pass such an order under Tamil Nadu Act 14 of 1982. When such an essential requirement, namely, the imminent possibility of the detenu coming out on bail, is absent, it has to be held that the order of detention is vitiated. 73.2) In KASTHURI Vs. THE DISTRICT COLLECTOR AND D.M., KANCHEEPURAM (2009(1) MWN (Cr.) 418 (DB), this Court had set aside the detention order passed against the detenu stating that the detaining authority had not followed the guidelines prescribed by the Supreme Court, in D.K.BASU Vs. STATE OF W.B, (1997 SCC (Cri) 92), and the other decisions of the Supreme Court, wherein, the following facts were considered as being violative of the orders of preventive detention passed by the detaining authorities concerned:
(a) Non-intimation of the detention order to any of the family members or friends within a reasonable time
(b) Delay in considering the representation made by the detenu or any other person interested, on behalf of the detenu.
(c) Non-supply of copies of material documents relied on by the Detaining Authority.
(d) Furnishing illegible copies of documents, so as to prevent detenu from making effective representation as contemplated under the Act.
(e) Non-furnishing of copies translated in the language known to the detenu for making effective representation.
(f) Non-application of mind by the Detaining Authority in having subjective satisfaction while passing the order. 73.3) In A.MURUGESAN Vs. SECRETARY TO GOVERNMENT (2010 (1) MLJ (Crl.) 950), it had been held that, while no bail application had been filed on behalf of the detenu, before the Court concerned, it would be too early for the detaining authority to record his satisfaction that the detenu is likely to come out on bail or that, if he is let to remain at large, he would indulge in such activities, in future, which would be prejudicial to the maintenance of public order. Unless, cogent materials are available, the subjective satisfaction of the detaining authority would be a clear indication of the non-application of mind by the detaining authority in the passing of the detention order.
73.4) In BALAJI Vs. STATE OF TAMIL NADU (2010(1) CTC 820), a Division Bench of this Court, referring to the decisions, in CHANDRU Vs. THE COMMISSIONER OF POLICE, THIRUCHIRAPALLI CITY, TRICHY AND ANOTHER (2007(1) TCJ 766, and CHELLADURAI Vs. STATE OF TAMIL NADU, REPRESENTED BY SECRETARY TO GOVERNMENT, HOME, PROHIBITION AND EXCISE DEPARTMENT, FORT ST. GEORGE, CHENNAI600 009, AND ANOTHER, had held that the mere statement of the detaining authority, that there is a real possibility of the detenu coming out on bail, especially, when no bail application had been filed on behalf of the detenu, shall not be sufficient to show that the satisfaction recorded by the detaining authority is based on cogent materials.
73.5) In SOOSAI @ BALU Vs. THE SECRETARY TO GOVERNMENT [2011(1) MWN (Cr.) 413 (DB)], it had been held as follows:
4.. In the second and Third Adverse cases and also in the Ground case, the detenu has not moved for any bail. Apart from this, the Second Adverse case is one for murder. But the Authority has mechanically stated in the order that there is a real possibility of the detenu coming out on bail. The said observation is without any basis or material much less cogent material, which the law would require. 73.6) In GOWRI Vs. THE SECRETARY TO GOVT. OF TAMIL NADU, HOME, PROHIBITION AND EXCISE DEPARTMENT (2011(2) CTC 145), this Court had held that the subjective satisfaction recorded by the detaining authority was without sufficient or cogent materials, relying on the decision of the Full Bench of this Court, in KALAISELVI, G. Vs. THE STATE OF TAMIL NADU (2007(5) CTC 657), wherein, it had been held as follows:
24.From the reading of the aforesaid decisions, it is clear that the conclusion of the Detaining Authority that there is imminent an possibility of the detenu being released on bail must be based on cogent materials and not on the mere ipse dixit of the Detaining Authority. As has been observed by the Supreme Court, the question as to whether there is possibility of being released on bail depends upon several factors, such as nature of offence, the stage of the investigation, the availability of statutory bail as envisaged under section 167(2), Proviso oof Cr.P.C. Even though it is not possible nor desirable to enumerate the circumstances in which bail is likely to be granted, one can venture to say that it is very rare for a Court of law to grant bail during pendency of the investigation when there is allegation of commission of serious offence, such as punishable under Section 302 or Section 395, I.P.C. On the other hand, it is also safe to conclude that in offences relating to prohibition laws or white collar offences, the Courts usually grant bail notwithstanding the fact that in offences relating to prohibition laws or white collar offences, the Courts usually grant bail notwithstanding the fact that investigation may be still going on. Similarly, when a charge-sheet is not filed within the statutory period contemplated, notwithstanding the seriousness of the allegation, on the expiry of the period, the accused got a right to be released on bail.
25. In the present case, the conclusion of the Detaining Authority, as already been extracted. We have searched for the materials on record in support of such conclusion and we find none. There was no imminent possibility of the detenu obtaining statutory bail as hardly 60 days had elapsed from the date of the arrest and the investigating agency had more than a month for completion of the investigation. The alleged offence under Section 302, IPC cannot be characterised as an offence of routine nature which would prompt any Court to grant bail even before completion of investigation. Top of it, the Bail Application had in fact been rejected by the Sessions Judge and no other Bail Application was pending. In such a factual situation, in our considered opinion, the decision of the Supreme Court in T.V.Saravanan v. State, (2006(2) SCC 664, is squarely applicable and it can be said that the conclusion of the Detaining Authority is mere ipse dixit and there is hardly any material in support of such conclusion. On this score also, the detention order is liable to be quashed. 73.7) In M.RAJESH Vs. THE GOVERNMENT OF TAMIL NADU [2011(1) MWN (Cr.) 279 (DB)], it had been held that, when no bail application is pending, the decision of the detaining authority that there was a real possibility of the detenu coming out on bail would show the non-application of mind on the part of the detaining authority, in passing the detention order. Thus, it is clear that the detaining authority had failed to apply his mind, properly, in passing the impugned detention order. In fact, it could be said that the detaining authority had considered irrelevant materials to arrive at his conclusion that there is a real possibility of the detenue coming out on bail and indulging in activities prejudicial to public order.
74. It is also noted that the second page of the copy of the First Information Report containing the facts relating to the offences said to have been committed by the detenue had not been furnished to the detenue, along with the order of detention. As such, it is clear that the detenue had been prevented from making a prompt and effective representation against the impugned detention order.
75. The learned public prosecutor appearing for the respondents had submitted that the relevant facts relating to the offences alleged to have been committed by the detenue, found in the statements made by the witnesses, under Section 161 of the Criminal Procedure Code, had been furnished to the detenue and therefore, the non furnishing of the second page of the First Information Report concerned cannot be held to have prejudiced the detenue, in any manner.
76. Further, the contention of the learned public prosecutor appearing on behalf of the respondents that the offences committed by the detenue are serious and grave in nature and therefore, the activities of the detenue had caused prejudice to the maintenance of public order cannot be countenanced. The Supreme Court has stated, in clear terms, in KUNDANBHAI DULABHAI SHAIKH Vs. DISTT. MAGISTRATE, AHMEDABAD AND OTHERS (1996) 3 SCC 194) that the gravity of the offences alleged to have been committed by the detenue cannot be a sufficient reason for invading the personal liberty of the detenue, except in accordance with the procedures established by law.
77. It is also noted that a reference had been made by the detaining authority in the grounds of detention, relating to the act of suicide committed by one Muthulakshmi, the daughter-in-law of Chandra, Manager of the Mannargudi unit of the Aphro Trust. However, the relevant records relating to the said incident had not been furnished to the detenue, at the initial stage. However, the records relating to the said incident had been furnished to the detenue, subsequently, by way of a covering letter. The relevancy of the said documents to the case of the detenue had not been explained in the covering letter. Thus, it is clear that the detenue had no knowledge as to whether the said incident had been taken into consideration, by the detaining authority, while passing the impugned order of detention. As per the decision of the Supreme Court in STATE OF T.N. Vs. SENTHIL KUMAR (1999) 2 SCC 646), the detenue had not been given a fair opportunity of making an effective representation, with regard to the said issue.
78. The learned Public Prosecutor appearing for the respondents has not been in a position to substantiate the claim made by the detaining authority that the detenue and her henchmen had caused disturbance of public order, by threat and by the use of deadly weapons. Thus, it could be seen that certain irrelevant aspects had been taken into consideration by the detaining authority while passing the order of detention. Therefore, the impugned detention order passed by the detaining authority is invalid in the eye of law, as held by the Supreme Court in HUIDROM KONUNGJAO SINGH Vs. STATE OF MANIPUR AND OTHERS (2012) 7 SCC 181).
79. Thus, it could be seen that the detaining authority had committed certain serious irregularities at the time of the passing of the detention order. There has been total non-application of mind by the detaining authority, while passing the said order. The detaining authority had considered extraneous materials which are not relevant for the passing of the detention order against the detenue.
80. The learned Public Prosecutor appearing for the respondents had also submitted that the complaints relating to the offences said to have been committed by the detenue and certain others, who had associated with her, had been referred to the Economic Offences Wing, for further investigation. Thus, it is clear that the normal criminal law have been set in motion against the detenue and the others said to have been associated with her in the alleged illegal activities.
81. In such circumstances, this Court is constrained to hold that the impugned detention order, dated 4.12.2012, passed by the detaining authority, is devoid of merits and therefore, it is liable to be set aside. Hence, it is set aside. Accordingly, the Habeas Corpus Petition stands allowed. The detenue is directed to be set at liberty, forthwith, unless her detention is required in connection with any other case or cause. Connected M.P.Nos.2 and 3 of 2013 are closed.
lan To:
1. The Secretary Home Prohibition and Excise Department The State of Tamil Nadu Fort St. George, Chennai-600 009
2. The Commissioner of Police Chennai Police Egmore Chennai 8