Madras High Court
Kathiresan vs The State Of Tamil Nadu on 9 December, 2013
Bench: S.Tamilvanan, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.12.2013 CORAM THE HON'BLE MR.JUSTICE S.TAMILVANAN AND THE HON'BLE MR.JUSTICE V.S.RAVI H.C.P.(MD)No.1008 of 2013 Kathiresan .... Petitioner Vs 1.The State of Tamil Nadu, Rep.by The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9. 2.The District Collector and District Magistrate, Thanjavur District, Thanjavur. 3.The Inspector of Police, Thanjavur Town East Police Station, Thanjavur. .... Respondents Prayer Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records pertaining to the detention order passed by the second respondent in P.D.No.27/2013, dated 01.06.2013, and to quash the same and direct the respondents to produce the person or body of the detenu, Muthu @ Muthamilselvan, aged about 22 years, before this court and set him at liberty, now detained at Central Prison, Trichy. !For petitioner ... Mr.M.Karunanithi ^For respondents ... Mr.C.Ramar, APP :ORDER
(Order of the Court was made by S.TAMILVANAN,J.) Heard the learned counsel appearing for the petitioner as well as the learned Additional Public Prosecutor appearing for the respondents.
2.The Habeas Corpus Petition has been filed under Article 226 of the Constitution of India, seeking an order to call for the records pertaining to the detention order passed by the second respondent in P.D.No.27/2013, dated 01.06.2013 and to quash the same and also direct the respondents to produce the person or body of the alleged detenue, viz.,Muthu @ Muthamilselvan, aged about 22 years, before this Court and set him at liberty.
3.The learned counsel appearing for the petitioner submitted that the respondents have not followed the mandatory procedures as contemplated under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) herein after referred to as "Act", and there is a violation of fundamental rights guaranteed under Article 21 of the Constitution of India and therefore, the petitioner is entitled seek an order as prayed for.
4.Per contra, Mr.C.Mayilvahanarajendran, learned Additional Public Prosecutor appearing for the respondent submitted that there were three adverse cases, apart from the ground case pending against the detenue. According to the learned Additional Public Prosecutor, there was subjective satisfaction for the detaining authority and that the mandatory procedures have been followed by the respondents while passing the impugned detention order.
5.It is seen from the impugned detention order passed by the second respondent that a case in Crime No.229 of 2013 on the file of Thanjavur Town East Police Station was registered under Sections 147, 148, 341, 323, 295(A), 294(b), 324, 307 and 506(ii) of IPC based on the occurrence dated 07.04.2013. Subsequently, on 12.04.2013, according to the respondents, the detenue involved in committing another offence punishable under Section 392 of IPC, for which, a case in Crime No.247 of 2013 on the file of Thanjavur Town East Police Station was registered. Similarly, on 17.04.2013, according to the respondents, the detenue involved in another similar incident, whereby, committing an offence punishable under Section 392 of IPC, for which, a case in Crime No.263 of 2013 was registered by Thanjavur Town East Police Station.
6.It is an admitted fact that in all the aforesaid adverse cases, the detenue herein was enlarged on bail. However, he was not released on account of his none furnishing of sureties as per the bail orders. The ground case is that on 03.05.2013 at about 17 hours one Manikandan aged about 28 years appeared before the Thanjavur Town East Police Station and gave a complaint against the detenue. As per the complaint, the detenue along with one Sadam Hussain, S/o Shake Mohammed, proceeding in a motor bike, weigh-laid the de facto complainant Manikandan threatened him by showing knife and the detenue took away Rs.2,000/- from the shirt packet of the de facto complainant. During the occurrence, the de facto complainant raised his alarming voice and the people nearby the area came to the scene of occurrence. Thereafter, the detenue and the co-accused showed knife and threatened the public that they would kill, if they come near to them. Based on the aforesaid allegations, a case in Crime No.297 of 2013 has been filed by the Thanjavur Town East Police Station under Sections 341, 294(b), 386 and 506(ii) of IPC r/w 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act 1992.
7.Learned counsel appearing for the petitioner submitted that the respondents have not furnished the copies of material papers within 5 days as contemplated under Section 8 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). In this regard, the learned counsel appearing for the petitioner relied on the decisions reported in 1989 Supp.(2) SCC 155 (Smt.Dharmista Bhagat Vs. State of Karnataka and another) and 1987 (2) SCC 234 (Bhupinder Singh Vs. Union of India and others). Referring the decisions rendered in Mehrunissa Vs. State of Maharashtra (1981(2) SCC 709) and Bhupinder Singh Vs. Union of India (1987 (2) SCC 234) the Hon'ble Supreme Court has held that it is imperative that the detaining authority has to serve the grounds of detention, which include also all relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenue to make an effective representation to the Advisory Board as well as to the detaining authority. Hence the refusal on the part of the detaining authority to supply legible copies of the said relevant document to the detenu for making an effective representation would infringe the detenu's right under Article 22(5) of the Constitution. Accordingly the detention order was set aside by the Hon'ble Apex Court.
8.In Bhupinder Singh's case the Hon'ble Supreme Court has held that the detenu therein was denied the opportunity of making a representation and legible copies of documents relied on by the authorities were not supplied to the detenu and hence, there was contravention of right guaranteed under Article 21 of the Constitution. Accordingly, it was held that the detenu therein was entitled to be set at liberty.
9.Learned counsel appearing for the petitioner drew the attention of this Court that though the detention order was passed by the second respondent on 01.06.2013, the same was furnished only on 06.06.2013, for which, he produced an endorsement available in the booklet served on the detenue on 06.06.2013. Per contra, the learned Additional Public Prosecutor submitted that as per Section 8 of the Act, copies were properly furnished within 5 days.
10.The learned counsel appearing for the petitioner submitted that legible copies were not furnished. Per contra, the learned Additional Public Prosecutor submitted that only page No.69 was not legible, however, no such request was made immediately and therefore, it would not be a ground in this Habeas Corpus.
11.The next point for consideration is subjective satisfaction. Learned Additional Public Prosecutor drew the attention of this Court to the decision rendered by the Hon'ble Supreme Court in the case reported in 2012 SCC 699, wherein, certain guidelines have been issued by the Hon'ble Supreme Court. We have perused the typed set of papers. According to the learned Additional Public Prosecutor, guidelines issued by the Hon'ble Supreme Court have been complied with and therefore, according to him, it is not open to the petitioner to argue that there was no subjective satisfaction. However, we are of the view that subjective satisfaction is only a legal satisfaction of the Detaining Authority to pass the detention order as per law. Admittedly, in this case though there are three adverse cases, bail was granted in all the cases, in favour of the detenue, which is not in dispute. Based on the ground case, the detention order was passed by the second respondent herein.
12.In a decision reported in 2011(1) MLJ (Crl.) 513 (Malleeswari Vs. State Government, Rep.by its Secretary to Government, Home, Prohibition and Excise Department and another), this Court has held that delay in supply of copy of detention order and the grounds of detention and connected papers to the detenue is violative of the mandate under Section 8(1) of the said Act and further this Court has held that an order of preventive detention passed on the ground that there is real possibility of the detenue coming out on bail by filing bail application. Accordingly, it was decided based on the grounds it could not be held that there was real possibility of detenue coming out on bail by filing bail application is which is non application of mind, hence, the order is liable to be set aside.
13.The learned Additional Public Prosecutor appearing for the respondents submitted that as per the order passed by the earlier Division Bench of this Court reported in 2011(1) MLJ 513 (Cited supra) a copy of the detention order along with the material papers, relied on for having subjective satisfaction, referred in the detention order, have to be supplied within 5 days. Accordingly, the copy of the detention order and copies of the documents relied on for the subjective satisfaction were furnished and therefore, the aforesaid decision is not supporting to the case of the respondents.
14.It is relevant to refer Section 2(a) of the Act, which clearly stipulates the object of the Act and as per definition clause of Section 2 of the Act was enacted to prevent persons engaging in the trade as bootlegger, drug offender, forest offender, goonda, immoral traffic offender, sand offender, slum grabber, video pirate, acting in any manner which are prejudicial to the maintenance of public order. The detention order is clamped against the persons, who violated the public order.
15.In the instant case, admittedly, having considered the facts and circumstances, the competent Courts have granted bail in all the adverse cases and the detention order was passed only based on the ground case. On the reading of the detention order, it is clear that no one was injured and the allegation is that the detenue and other accused have threatened the de facto complainant one Manikandan with knife and people got afraid of by the act of the petitioner. However, even as per the averments of the second respondent in the impugned detention order, only based on the complaint given by the de facto complainant Manikandan, the Inspector of Police / Sponsoring Authority went to the alleged scene of occurrence. The averments in the complaint would not show any prima facie threat to the public order, so as to invoke the provisions of the Act and pass the detention order.
16.As contented by the learned counsel appearing for the petitioner, a perusal of the impugned detention order would show that the impugned detention order was passed as the petitioner was granted bail and he could not furnish sureties. Further it is pertinent to note that the occurrence relating to the first adverse case, which was taken place on 07.04.2013. Subsequently, on 12.04.2013, there was occurrence relating to the second adverse case for registering the case under Section 392 IPC and the third case was registered within few days i.e., on 17.04.2013 against the detenue for the offence punishable under Section 392 IPC then few days later, the ground case was registered on the alleged occurrence dated 03.05.2013. On the available records, it is not clear as to how the petitioner was detained on the ground that there was imminent possibility for comming out on bail, when he could not furnished sureties.
17.on the aforesaid alleged facts and circumstances, how subsequent occurrence dated 03.05.2013 had taken place is also a pertinent question. In this regard, the respondents have not furnished any details to show whether the detenue was enlarged on bail in committing the subsequent alleged offence relating to the ground case. As there is no satisfactory explanation for the contradiction with regard to the filing of various cases relating to various alleged occurrences, one after another. Merely because the detenue got bail in three adverse cases, based on the ground case without sufficient material the respondent / sponsoring authority sponsored the name of the detenue for preventive detention and the detention order has been passed mechanically without following the mandatory procedures, as contemplated under the Act.
18.The second respondent without properly considering the material papers available on record passed the order, clamping detention on the detenue, against mandate of Article 21 of the Constitution of India. On the facts and circumstances, we are of the view that there is no sufficient material for subjective satisfaction to invoke the Act and detain the person, hence, it could be construed as non application of mind. Hence, we are of the view that the Habeas Corpus petition has to be allowed to meet the ends of justice.
19.In the result, the Habeas Corpus petition is allowed and the impugned detention order in P.D.No.27/2013, dated 01.06.2013 passed by the second respondent is set aside. The detenu, viz., Muthu @ Muthamilselvan, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
To
1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.
2.The District Collector and District Magistrate, Thanjavur District, Thanjavur.
3.The Inspector of Police, Thanjavur Town East Police Station, Thanjavur.