Madras High Court
Shanmugam vs The State Of Tamil Nadu on 29 August, 2013
Author: V.Dhanapalan
Bench: V.Dhanapalan, C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 29.08.2013 Coram :- THE HON'BLE MR.JUSTICE V.DHANAPALAN and THE HON'BLE MR.JUSTICE C.T.SELVAM Habeas Corpus Petition Nos.693 and 695 of 2013 1. Shanmugam ... Petitioner in H.C.P.693 of 2013 2. Manjunath ... Petitioner in H.C.P.695 of 2013 -vs- 1. The State of Tamil Nadu Rep. by its Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Secretariat, Chennai-600 009. 2. The District Collector and District Magistrate, Krishnagiri District, Krishnagiri. ... Respondents. Common Prayer: Writ petitions under Article 226 of the Constitution of India are filed praying for issuance of a writ of habeas corpus calling for the records relating to the detention order passed by the 2nd respondent pertaining to the orders made in S.C.Nos.5 & 6 of 2013 dated 12.03.2013, quash the same and direct the respondents to produce the detenus / petitioners Shanmugam, S/o.Mani male 51 years and Manjunath, S/o.Kuberappa, male aged 39 years, who are detained at the Central Prison, Salem before this Hon'ble Court and set them at liberty. For petitioners : Mr.E.Kannadasan For respondents : Mr.M.Maharaja Addl. Public Prosecutor For Assistance : Mr.P.Wilson, Addl. Solicitor General Assisted by Mr.C.Kanagaraj ***** COMMON ORDER
(Order of the Court was made by V.DHANAPALAN,J.) The petitioners in both Habeas Corpus Petitions have been branded as "Boot Leggers" as contemplated under Tamil Nadu Act 14 of 1982 and detained under orders of the 2nd respondent passed in S.C.Nos.5 & 6 of 2013 dated 12.03.2013.
2. The petitioner/detenu in H.C.P.693/2013 came to adverse notice in the following case:-
Sl.No. Police Station and Crime No. Sections of Law
1.
Thiruvarur P.E.W., Crime No.427 of 2007 4(1) (aaa) r/w 4(1-A) of Tamil Nadu Prohibition Act, 1937 The petitioner/detenu in H.C.P.695/2013 came to adverse notice in the following case:-
Sl.No. Police Station and Crime No. Sections of Law
1.
Hosur P.E.W., Crime No.1417 of 2004 4(1) (aaa) r/w 7(II) of Tamil Nadu Prohibition Act, 1937 The ground case alleged against the petitioners / detenus is one registered on 09.02.2013 by the Inspector of Police, P.E.W., Krishnagiri in Crime No.116 of 2013 for offences under Sections 4(1)(aaa) r/w 4(1-A) of TNP Act, 1937 and 6 & 7 of TNRS Rules of 2000 and 379, 468, 471 and 420 IPC. Aggrieved by the orders of detention, the present petitions have been filed.
3. Mr.E.Kannadasan, learned counsel appearing for the petitioners submits that the facts of the grounds of detention do not constitute acts prejudicial to the maintenance of public order and thus, the provisions of Section 3(1) of the Tamil Nadu Act 14 of 1982, are not attracted. He would further contend that the detaining authority failed to ask clarification from the sponsoring authority about non serving of arrest memo in a proper manner to the family members, relatives or friends of the detenus and there was no proof to show that the intimation of arrest was given, as the arrest was communicated through cell phone to the wife and friend of detenus respectively, which clearly shows non application of mind on the part of detaining authority.
4. It is also contended by the learned counsel for the petitioners that the detaining authority has not furnished the Tamil version of certain pages of the booklet, viz., Page Nos.3 to 5, 51, 52, 58 & 59, which would affect the rights of detenus in making effective representation to the authorities concerned as the Constitution of India mandates that the grounds must be communicated in a language understood by the person concerned and what applies to a document would equally apply to furnishing a translated copy of the document in the language known to and understood by the detenu.
5. Per contra, Mr.M.Maharaja learned Additional Public Prosecutor submits that acts committed by the detenus are prejudicial to the maintenance of public order and peace and the arrest was communicated by way of cell phone to the wife and friend of detenus, which is an effective and speedy way of communication available with the authorities and therefore, there is no illegality in making such intimation. However, learned Additional Public Prosecutor fairly concedes regarding non furnishing of above stated page numbers in vernacular language.
6. We have considered the rival submissions and perused the materials available on record.
7. The detaining authority, in considering overall circumstances passed the detention orders dated 12.03.2013 in a mechanical manner and it is relevant to extract paragraph nos.4 to 7 of the detention order passed against the detenu in H.C.P.No.693 of 2013 as under:
4) I am aware that Thiru.Shanmugam was produced before the Judicial Magistrate, Uthangarai on 10-02-2013 in Krishnagiri P.E.Wing Cr.No.116/2013 u/s.4(1)(aaa) r/w. 4(1-A) TNP Act, 1937 and 6, 7 of TNRS Rules 2000 and 379, 468, 471, 420 IPC and was remanded to judicial custody and lodged at Central Prison, Salem, as a remand prisoner till 22-02-2013. His remand has been extended upto 22-03-2013. He has filed a bail application to grant bail in the above said case before the District Principal Sessions Court, Krishnagiri in Crl.M.P.No.305/2013 and the same was dismissed on 13-02-2013. He has also filed a bail application to grant bail in the above said case before the Hon'ble High Court, Chenna in Crl.O.P.No.4183/2013 and the same is pending in the Court. I am also aware that in a similar case registered against an accused Thiru.Raman at Krishnagiri P.E.Wing Cr.No.702/2010, u/s. 4(1)(aaa) r/w 4(1-A) TNP Act, 1937 and 6, 7 of TNRS Rules 2000 and 468, 471, 420 IPC, bail was granted by the Hon'ble High Court, Chennai, vide Crl.O.P.No.1931/2010, dt. 03-11-2011. Hence, I infer that it is very likely of his (Thiru Shanmugam) coming out on bail in the above ground case, by the pending bail application in the ground case before the Hon'ble High Court, Chennai, since bails are granted by the Courts in such cases. If he (Thiru.Shanmugam) comes out on bail, he will indulge in future activities, which will be prejudicial to the maintenance of public order and public health. Further the recourse to normal criminal will not have the desired effect of effectively presenting him from indulging in such activities which will be prejudicial to the maintenance of public order and public health. On the materials placed before me and after coming to consideration the ground case as well as the past case together, I am satisfied that the said Thiru. Shanmugam is a Bootlegger as defined under clause 2(b) of Tamil Nadu Act 14 of 1982 and that there is a compelling necessity to detain him under the provisions of the Tamil Nadu Act 14 of 1982 in order to prevent him from indulging in such activities in future which will be prejudicial to the maintenance of public order and public health.
5) A detention order under section 3(1) 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) has been made against Thiru. Shanmugam, S/o.Thiru. Mani, Vide Order S.C.No.05/2013, Dated 12.03.2013.
6) Thiru. Shanmugam is informed that this detention order shall not remain in force for more than 12 days after making thereof unless in the meantime, it has been approved by the State Government. Thiru. Shanmugam is also informed that he has a right to make representation in writing against the said detention order, to the detaining authority and if any such representation is received by the detaining authority before the approval of the Government, the said representation will be duly considered by the detaining authority. If the detenu wishes to make any written representation to the detaining authority he should address it to the District Collector and District Magistrate of Krishnagiri District and forward it through the Superintendent, Central Prison, in which he is confined as expeditiously as possible. He is also informed that he has a right to make representation in writing against the detention order to the State Government and if he wishes to make any representation to the State Government, he should address it to the Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9, through the Superintendent of the Central Prison, in which he is detained, as expeditiously as possibly. Further he is informed that he has right to make representation to the Chairman, Advisory Board, Singaravelar Maligai, Ground Floor (Backside Entrance) Chennai to Collectorate, No.32, Rajaji Salai, Chennai 600 001. Any representation that is made by him to the Government will be duly considered by the Government and will also be placed before the Advisory Board along with his case details for consideration under section 10 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). He is informed that he is entitled to be heard in person by the Advisory Board. He is requested to intimate to the Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9 specifically in writing as expeditiously as possible, whether he desires to be heard in person by the Advisory Board.
7) He is also informed that he is permitted to have the assistance of a friend/relative of him, if he so desires at the time of personal hearing by the Advisory Board, provided that his friend/relative is not an Advocate and that he has to make his own arrangements to get the said friend/relative to be present at the time of personal hearing by the Advisory Board.
8. On perusal of the detention orders passed as against both the petitioners/detenus, questions, which arise for consideration in the instant cases, are as follows:
i) Whether acts committed by the detenus are prejudicial to the maintenance of public order and health;
ii) Whether the communication of arrest through cell phone defeats the rights of detenus;
iii) Whether non furnishing of the translated version of documents relied upon by the detaining authority is detrimental to the rights of detenus in making effective representation.
Question No.(i)
9. On a deep scrutiny of the detention orders as well as records furnished before us, it is seen that the detaining authority, in exercise of the powers conferred by Sub-Section (1) of Section 3 of the Tamil Nadu Act 14 of 1982, passed the detention orders in arriving at the conclusion that there is likelihood of the detenus coming out on bail and indulging in activities, which may be prejudicial to the maintenance of public order. The authorities, on prediction of the fact that indulgence of detenus in further activities would make the public order in troublesome, are empowered to prevent such situation and accordingly, the detention orders came to be passed after looking into the overall situation in the manner as contemplated under law. Therefore, to the first question, we find that the detaining authority acted in accordance with law and thus, the first question is answered in favour of the detaining authority.
Question No.(ii)
10. As regards the second question, viz., intimation of arrest by way of cell phone to the wife and friend of detenus, is concerned, it is stated at page no.9 of the booklet by the Inspector of Police to the effect that the date on which detenus were arrested being Sunday and the telegraphic offices also remained closed, the factum of arrest was intimated to Mrs.Ilavarasi, wife of the detenu in HCP No.693 of 2013 over cellphone No.80565 53285 and also to one Nanjundan, friend of the detenu in HCP No.695 of 2013 vide cellphone No.99452 98282.
11. To examine the above question as to the effect of intimating the arrest over a cell phone is in accordance with law and the procedure contemplated, we have requested Mr.P.Wilson, learned Additional Solicitor General of India assisted by Mr.C.Kanagaraj, learned Central Government Standing Counsel, to inform as to what is the speedy and effective mode of communication subsequent to abolition of telegraphic services.
12. The learned Additional Solicitor General of India has filed a Memo by inter alia stating that e-post system has been introduced with effect from 30.01.2004 by the Department of Posts, Government of India, which acts as a more effective and speedy alternative for telegrams and postal services and e-post will be an effective and speedy method of official communication by public authorities. In this regard, a document is also filed explaining as to the benefit and usage of e-post on abolishment of telegram service, which reads as under:
The internet revolution has allowed rapid exchange of communication through email. However, the internet has not reached most of the rural India and other remote areas. To bridge this digital divide, and to bring the benefit of revolutionary intertechnology to people living in these areas, Department of Posts has introduced epost. The epost was initially launched in 5 States on experimental basis. In the wake of the experience gained, a tie up has been established with National Informatics Centre (NIC) who have developed the software, and the service is being launched on national basis. epost post is a service under which printed or even handwritten messages of customers are scanned and transmitted as email through internet. At the destination offices, these messages are printed, enveloped and delivered through postmen like other letters at the postal addresses. For this purpose, epost centres have been set up in the Post Offices, covering all the districts and towns. These epost centres are equipped with internet connection, computers, printers and other necessary equipment. However, epost service is not limited to the epose centres. It can be availed of from any Post Office. Irrespective of whether a customer is in a metropolis or in a remote village, he can send and receive epost messages.
The messages booked at Post Offices which are not the epost centres, are sent to epost centres for scanning and dispatch. Similarly messages received at epost centres for areas beyond their delivery jurisdiction are printed and sent to concerned Post Offices for delivery.
Besides availing epost service through Post Offices, it can also be accessed from customer's home or office if he has a computer and internet access. The customer can make payment through a prepaid card that is available from selected Post Offices and other outlets. The customer has to register as a user, and can access the service at the epost portal indiapost.nic.in and folling the instructions. At present, only text messages can be sent in this mode. e messages can also be sent to email ID(s) anywhere in the world. Booking can be done from both a Post Office or from customer's computer at home or office. The epost messages would be printed on A4 (8.27 x 11.69) size paper. Therefore, the message booked should be in sheets of no more than A4 size. However, there is no limit on the number of pages that can be sent. epost messages are treated on par with the unregistered letters under the Indian Post Office Act, 1898.
The current rates for the epost service are Rs.10 per page per addressee. With the launching of the epost by INDIA POST, email can now be sent and received by even the people living in remote areas, even without the sender or the addressee having access to computers or internet. Besides making the benefits of internet available even to Indians living in remote areas, epost enables businessmen and professionals to advertise their produces and services to select customers. They can send their publicity material even from their or home or office from their computers, without having to spend for printing of advertisements and then on posting or hand delivering them. For availing the epost service, or to have further information, customers can approach the nearest post office or log on to indiapost.nic.in.
13. To clarify the position further, learned Additional Solicitor General has furnished a booklet informing in nutshell the advantages of availing e-post service, which is in existence with effect from 30.01.2004. Some of the salient features as described in the booklet, are as follows:
epost We convey your feelings ePost combines the speed of email with delivery at your address by postman.
Epost can be sent from home or office using prepaid cards.
ePost prepaid cards of various denominations are available at your nearest Head post office.
ePost Corporate Service enables corporate customers to draft, design and send the message as per their business requirements from their office premises by using internet. It is pertinent to mention here that the e-post facility is available since 30.01.2004.
14. The procedure to be followed in the matter of arrest and detention of a person as specified under Article 22 (1), (2) and (5) of the Constitution of India, reads as under:
"Article 22: Protection against arrest and detention in certain cases.-
(1). No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
* * * * * * * * * * (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
15. Intimation of arrest should be communicated to the relatives or the friends of the person concerned through anyone of the legally recognised modes, which would ensure the right of the person arrested under preventive detention. If such intimation of arrest has not been made effectively, then, it would confer a right upon the arrestee to impugn the arrest effected on him and thereby, the detention order would get vitiated on that ground also. Here is a case, where the arrest of the detenus had been communicated through cell phone to the wife and friend of the detenus, but, there is no proof to exhibit that the intimation of arrest was given to the family members of the detenus. On the failure of the same, the detention order would be vitiated on the ground of deprivation of right guaranteed under Article 22(1) of the Constitution of India.
16. Also, the Honourable Supreme Court in A.K.Roy v. Union of India reported in 1982 Supreme Court Cases (Cri) 152, held as follows:
"Moreover, in order that the procedure attendant upon detentions should conform to the mandate of Article 21 of the Constitution of India in the matter of fairness, justness and reasonableness, it is imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody. Intimation must also be given as to the place of detention, including the place where the detenu is transferred from time to time. It is necessary to treat the detenu consistently with human dignity and civilised norms of behaviour."
(emphasis supplied.)
17. Further, Section 50-A of the Code of Criminal Procedure, 1973, which was inserted under Amendment Act 25 of 2005 and is in existence since 23.06.2006, stipulates the obligation of person making arrest to inform about the arrest etc., to a nominated person. The clause-1 of Section 50-A of the Cr.P.C., reads as under:
"(1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information."
18. In furtherance to the above, the Government of Tamilnadu, Home, Prohibition and Excise (XVI) Department, Secretariat, Chennai issued certain instructions vide its letter dated 07.02.2012 to the Director General of Police, Chennai, all the District Magistrate and District Collectors and the Commissioner of Police, giving clear proposition as to the rectification of technical lapses frequently committed by detaining authorities at the time of passing detention orders, as brought to the notice of the Government by the Public Prosecutor, High Court, Chennai, as the lapses end in release of detenus by the Hon'ble High Court. Out of which, clause-15 of the instructions provides that arrest intimation over cell phone / land line phone should be avoided. Thus, the Government requested all the authorities concerned to ensure that the points suggested ought to be followed without any lapse in the Preventive Detention Cases and any lapse in this regard will be viewed seriously.
19. Despite clear instructions given by the Government after touching upon the legal position, the officer, who arrested the detenus informed the said arrest to the wife and friend of detenus over cellphone, by simply stating that the date of arrest being Sunday, no telegraphic service was available, which is a matter of ignorance on the part of arresting authorities, as in our country, telegraphic services are available even on Sundays. The mode of communication adopted by the authorities, which was not even looked into by the detaining authorities is not only unknown to the settled principles, but also is an attempt to cast aside the instructions given by the Government.
20. The Hon'ble Supreme Court in the case of D.K.Basu vs. State of W.B. reported in (1997) 1 SCC 416 has laid down a dictum in respect of arrest or detention by the Police, as under:
"35. We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee ad shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board." (emphasis supplied.) In the above judgment, the Honourable Supreme Court elaborately dealt with the right of the arrestee/detenu and issued mandatory directions in the shape of 'requirements' for compliance by the police personnel while arresting or detaining any person.
21. Keeping in view the settled principles enunciated in the above referred judgments of the Honourable Supreme Court and also considering the violation of instructions given by the Government of Tamilnadu, by authorities concerned, the second question is answered against the respondents.
Question No.(iii)
22. Insofar as the third question is concerned, the paramount consideration in the matter of preventive detention cases, is that documents relied upon by the detaining authority should be furnished to the detenu both in English and in the language known to the detenu. On verification of the record, it shows that the translated version of page nos.3 to 5, 51, 52, 58 & 59, which are vital documents relied on by the detaining authorities to detain them, are not given to the detenus and the same would definitely deprive the detenus of the opportunity of clear understanding and making an effective representation to the authorities concerned and also amounts to an infringement of right ensured under Article 22(5) of the Constitution of India as the grounds must be communicated in a language understood by the person concerned, which would enable him to make an effective representation. Such deprivation would vitiate the orders of detention. Therefore, the third question is answered in favour of the detenus.
23. Accordingly, the impugned detention orders passed by the 2nd respondent, detaining the detenus / petitioners Shanmugam, S/o.Mani and Manjunath, S/o.Kuberappa, made in S.C.Nos.5 & 6 of 2013 dated 12.03.2013 are quashed and the Habeas Corpus Petitions are allowed. In view of quashing of impugned orders, the bail bonds executed pursuant to the grant of interim bail to the detenus, shall stand cancelled.
24. At this juncture, learned counsel for the parties requested this Court to frame guidelines in order to overcome this kind of legal impediment in respect of effective communication owing to discontinuation of telegraphic services with effect from 15.07.2013.
25. Before considering the above request, it is mandatory to take note of what is the prevailing system existing in our country. As per the memo filed by the learned Additional Solicitor General, in the place of telegraphic services which was discontinued with effect from 15.07.2013, an advanced system, namely, "e-post" has been introduced by the Department of Posts, Government of India with effect from 30.01.2004. In the light of the above, we suggest the Government of Tamilnadu / respondents herein to consider implementation of the following guidelines in order to streamline the procedure for effective communication of intimation of arrest:
i)The officer effecting arrest of a person shall intimate the same to his/her relatives, friends or the person authorised by the detenu through e-post, which has come into force from 30.01.2004 and the officer concerned shall follow the e-post system in the manner prescribed.
ii) In case of intimation through cellphone/land line, we would suggest to the Government of Tamilnadu that the Secretary to the Government shall invite the Officials of the Bharat Sanchar Nigam Limited (BSNL) for a consultation to device a mechanism to frame an effective method of communication, including receipt of acknowledgment for the proof of service of communication through BSNL. On reaching such formulation, the respondents shall follow the same for effecting communication of intimation of arrest.
iii) We would further suggest that the Government of Tamilnadu shall consider to effect communication through FAX messages from the station of the arresting Officer effecting arrest or from the closest station where such facilities are available, to the closest station of the person to be intimated. The respondents shall follow the same as a mode of communication and the procedure for intimation after consultation with the stakeholders.
26. In the result, both the Habeas Corpus Petitions are allowed, with the above directions, observations and guidelines suggested.
[V.D.P.J.,] [C.T.S.J.,] 29.08.2013 Index : Yes Internet : Yes ar / rsb V. DHANAPALAN, J.
AND C.T. SELVAM, J.
ar / rsb To
1. The Secretary to Government, State of Tamil Nadu Home, Prohibition and Excise Department, Fort St.George, Secretariat, Chennai-600 009.
2. The District Collector and District Magistrate, Krishnagiri District, Krishnagiri.
3. The Public Prosecutor High Court, Chennai.
Habeas Corpus Petition Nos.693 and 695 of 2013 29.08.2013