Madras High Court
Madasamy vs The Secretary To Government on 11 August, 2016
Bench: K.K.Sasidharan, B.Gokuldas
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2016
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
and
THE HONOURABLE MR.JUSTICE B.GOKULDAS
H.C.P(MD)Nos.556 of 2016, 557, 558, 687 and 688 of 2016
Madasamy : Petitioner in H.C.P.(MD)No.556 of 2016
Pasumponpandian: Petitioner in H.C.P.(MD)No.557 of 2016
Kannan : Petitioner in H.C.P.(MD)No.558 of 2016
Meenakshi : Petitioner in H.C.P.(MD)No.687 of 2016
Abitha Banu : Petitioner in H.C.P.(MD)No.688 of 2016
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2.The Commissioner of Police,
Office of the Commissioner of Police,
Madurai City,
Madurai.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai District.
: Respondents in H.C.P(MD)Nos.556, 557 & 558 of 2016
1.State of Tamil Nadu,
rep. by its Secretary to Government,
Home, Prohibition & Excise Department,
Fort St.George,
Chennai-600 009.
2.The Commissioner of Police,
Madurai City,
Madurai District.
: Respondents in H.C.P.(MD)Nos.687 & 688 of 2016
PRAYER in H.C.P.(MD)No.556 of 2016: Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Habeas Corpus, calling for
the entire records, connected with the detention order of the second
respondent in No.23/BCDFGISSSV/2016, dated 21.04.2016 and quash the same and
direct the respondents to produce the detenu, namely Madasamy, son of
Muthupandi Thevar, aged about 35 years detained in Madurai Central Prison
before this Court and set him at liberty forthwith.
PRAYER in H.C.P.(MD)No.557 of 2016: Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Habeas Corpus, calling for
the entire records, connected with the detention order of the second
respondent in No.21/BCDFGISSSV/2016, dated 18.04.2016 and quash the same and
direct the respondents to produce the detenu, namely Pasumponpandian, son of
Sevugapandian, aged about 50 years detained in Madurai Central Prison, before
this Court and set him at liberty forthwith.
PRAYER in H.C.P.(MD)No.558 of 2016: Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Habeas Corpus, calling for
the entire records, connected with the detention order of the second
respondent in No.22/BCDFGISSSV/2016, dated 18.04.2016 and quash the same and
direct the respondents to produce the detenu, namely Kannan, son of Rajamani,
aged about 39 years detained in Madurai Central Prison, before this Court and
set him at liberty forthwith.
PRAYER in H.C.P.(MD)No.687 of 2016: Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Habeas Corpus, calling for
the records relating to the detention order passed by the second respondent
in No.25/BCDFGISSSV/2016, dated 18.05.2016, quash the same and direct the
respondents to produce the body of the detenu Suresh @ Mani, aged about 27
years, son of Chandrasekar (now detained at Central Prison, Madurai), before
this Court and set him at liberty.
PRAYER in H.C.P.(MD)No.688 of 2016: Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of Habeas Corpus, calling for
the records relating to the detention order passed by the second respondent
in No.24/BCDFGISSSV/2016, dated 11.05.2016, quash the same and direct the
respondents to produce the body of the detenu Ajmalkhan, aged about 25 years,
son of Ayubkhan (now detained at Central Prison, Madurai), before this Court
and set him at liberty.
!For Petitioners : Mr.V.Kathirvelu,
in H.C.P(MD)Nos.556, 557 Senior Counsel,
and 558 of 2016 For Mr.R.Alagumani
For Petitioners in : Mr.V.Kannan
H.C.P.(MD)Nos.687 & 688 of 2016:
^For Respondents : Mr.B.Pugalendhi,
in all H.C.Ps. Additional Advocate General,
Assisted by Mr.C.Ramesh,
Additional Public Prosecutor.
:C O M M O N O R D E R
INTRODUCTORY:
The affidavits of the sponsoring authority requesting the Commissioner of Police, Madurai, in his capacity as the Detaining Authority, to detain the detenus in these five cases, were prepared at the Office of the Commissioner of Police and attested by none other than the Commissioner of Police with an endorsement that it was signed in his immediate presence. Thereafter, within two days, the very same Commissioner of Police passed orders detaining the detenus involved in these Habeas Corpus Petitions. The course of conduct and the background facts clearly indicate the pre-determination on the part of the Detaining Authority to detain the detenus, who were against the then local M.L.A., and Minister, who is also a Minister in the present Government in Tamil Nadu. In short, the Commissioner of Police, who was instrumental in sponsoring detention, himself passed the orders of detention.
2. The facts are common in all these Habeas Corpus Petitions. The detenus were all detained on account of their alleged commission of offences on 09 January, 2016 and 10 January, 2016. Therefore, all these five Habeas Corpus Petitions were taken up for consideration together and they are being disposed of by this common order.
FACTS IN NUTSHELL:
H.C.P.(MD)No.556 of 2016:
3. The Commissioner of Police, Madurai City, detained the petitioner, by order dated 21 April, 2016 branding him as a "Goonda". According to the Commissioner of Police, the petitioner was involved in a case in Crime No.74 of 2016 registered under the provisions of the Indian Penal code and Explosive Substances Act on 09 January, 2016. The confession of the accused Pasumponpandian was taken as the material to implicate the petitioner. Subsequently, there was another case in Crime No.61 of 2016 on the file of B6 Jaihindpuram Police Station registered on 10 January, 2016. The said crime was registered, pursuant to the report submitted by the Inspector of Police, B6 Jaihindpuram Police Station on 10 January, 2016 that he found a leather bag kept inside a white polythene bag in a suspicious manner near the public meeting place of AIADMK party at T.P.K.Road, Madurai. The petitioner was produced before the learned Judicial Magistrate No.V, Madurai, through a PT warrant on 30 March, 2016, in connection with the case registered in Crime No.74 of 2016. He was remanded till 04 May, 2016. The petitioner was produced in Crime No.61 of 2016 before the learned Judicial Magistrate No.IV, Madurai and he was remanded till 21 April, 2016. The bail application filed by the petitioner was dismissed by the learned Judicial Magistrate on 30 March, 2016. Thereafter, he filed another bail application before the learned Principal District and Sessions Judge, Madurai, in Crl.M.P.No.1841 of 2016, which was pending as on the date of detention.
4. The adverse cases registered on 09 January, 2016 and 10 January, 2016, and the ground case on 09 January, 2016, were taken as the basis to pass the order of detention by the Commissioner of Police on 21 April, 2016.
H.C.P.(MD)No.557 of 2016:
5. The petitioner was arrested by the Inspector of Police, E2 Madhichiyam Police Station, pursuant to the First Information Report registered on 09 January, 2016, alleging that explosion took place at the entrance of the AIADMK Party District Office, located at Panagal Road, Madurai. The First Information Report does not contain the name of the accused. The petitioner was arrested on 07 March, 2016. The police recorded his confession and added the names of other accused.
6. The Inspector of Police, B6 Jaihindpuram Police Station, during patrol, found a leather bag kept inside a white polythene bag near the place where a public meeting of AIADMK was scheduled to be held on 10 January, 2016. The police searched the leather bag and two petrol bombs and a country made bomb were seized. The petitioner was arrested in connection with the said case in Crime No.61 of 2016 and on the basis of his confession, the other detenues were arrayed as accused.
7. The petitioner was produced before the learned Judicial Magistrate No.II, Madurai, through a PT warrant on 14 March, 2016, in Crime No.33 of 2016. He was remanded till 18 April, 2016. The petitioner was produced in Crime No.61 of 2016 before the learned Judicial Magistrate No.IV, Madurai and he was remanded till 18 April, 2016. The bail application filed by the petitioner was dismissed by the learned Judicial Magistrate No.IV, Madurai, on 17 March, 2016. Thereafter, he filed another bail application in Crl.M.P.No.1735 of 2016 and the same was also dismissed. The bail application filed before the learned Principal District and Sessions Judge, Madurai, thereafter, was pending as on the date of detention.
8. The Commissioner of Police passed the detention order on 18 April, 2016 branding the petitioner as a "Goonda".
H.C.P.(MD)No.558 of 2016:
9. The petitioner was arrayed as an accused in Crime No.33 of 2016, pursuant to the confession given by Thiru.Pasumponpandian, the petitioner in H.C.P.(MD)No.557 of 2016. Similarly, his name was included as an accused in Crime No.61 of 2016 on the file of B6 Jaihindpuram Police Station again on the basis of the alleged confession statement given by the co-accused, Mr.Pasumponpandian, the petitioner in H.C.P.(MD)No.557 of 2016.
10. The petitioner was produced before the learned Judicial Magistrate No.II, Madurai, through a PT warrant on 14 March, 2016, in Crime No.33 of 2016. He was remanded till 18 April, 2016. The petitioner was produced in Crime No.61 of 2016 before the learned Judicial Magistrate No.IV, Madurai and he was remanded till 18 April, 2016. The bail application filed by the petitioner was dismissed by the learned Judicial Magistrate No.IV, Madurai, on 17 March, 2016. Another bail application filed by the petitioner was dismissed by the learned Judicial Magistrate, on 30 March, 2016. The petitioner filed another bail application before the learned Principal District and Sessions Judge, Madurai, in Crl.M.P.No.1841 of 2016 and the same was pending.
11. The Commissioner of Police, Madurai City, on the basis of the adverse case and ground case, passed the order of detention on 18 April, 2016, branding the petitioner as "Goonda".
H.C.P.(MD)No.687 of 201612. The petitioner is the mother of the detenu, by name Suresh @ Mani, who was detained by the Commissioner of Police, by order dated 18 May, 2016, under the provisions of the Tamil Nadu Act 14 of 1982.
13. The detenu was arrayed as an accused in Crime No.33 of 2016 on the file of E2 Madhichiyam Police Station, pursuant to the confession statement given by the petitioner in H.C.P.(MD)No.557 of 2016. Subsequently, he was arrayed as an accused in Crime No.61 of 2016 on the file of B6 Jaihinpuram Police Station, on the basis of the confession statement of Thiru.Pasumponpandian, the petitioner in H.C.P.(MD)No.557 of 2016.
14. The detenu was produced before the learned Judicial Magistrate No.II, Madurai, through a PT warrant on 14 March, 2016, in Crime No.33 of 2016. He was remanded till 18 May, 2016. The detenu was produced in Crime No.61 of 2016 before the learned Judicial Magistrate No.IV, Madurai and he was remanded till 18 May, 2016. The bail application filed on behalf of the detenu was dismissed by the learned Judicial Magistrate on 17 March, 2016. The bail applications filed on behalf of the detenu in Crl.M.P.Nos.1543 and 1563 of 2016 were also dismissed on 29 April, 2016 and 04 May, 2016, respectively, by the learned Judicial Magistrate No.IV, Madurai. Thereafter, he filed another bail application before the learned Principal District Judge, Madurai, in Crl.M.P.No.120 of 2016 and the same was pending as on the date of detention.
15. The Commissioner of Police passed the order of detention on 18 May, 2016, branding the detenu as "Goonda" within the meaning of the Tamil Nadu Act 14 of 1982.
H.C.P.(MD)No.688 of 2016:
16. The petitioner is the mother of the detenu, by name, Ajmalkhan, accused in Crime No.74 of 2016 on the file of C3 S.S.Colony Police Station. The detenu is also an accused in Crime No.61 of 2016 on the file of B6 Jaihindpuram Police Station. The detenu was arrayed as an accused in these two cases, on the strength of the confession statement given by Thiru.Pasumponpandian, petitioner in H.C.P.(MD)No.557 of 2016.
17. The detenu was remanded on 14 March, 2016 by the learned Judicial Magistrate No.V, Madurai. His remand period was subsequently extended upto 18 May, 2016. He was produced before the learned Judicial Magistrate No.II, Madurai on 08 March, 2016 in connection with the case in Crime No.61 of 2016 on the file of B6 Jaihindpuram Police Station. He was remanded upto 18 May, 2016.
18. The bail application filed on behalf of the detenu was dismissed by the learned Judicial Magistrate No.IV, Madurai, on 17 March, 2016. He filed another bail application in Cr.M.P.No.1543 of 2016. The bail application was dismissed by the learned Judicial Magistrate No.IV, Madurai, on 29 April, 2016. The bail application filed in Cr.M.P.No.1563 of 2016 was also dismissed by the learned Judicial Magistrate on 04 May, 2016. Subsequently, he filed another bail application in Crl.M.P.No.120 of 2016 and the same was still pending before the learned Principal District and Sessions Judge, Madurai.
19. While so, the Commissioner of Police, passed the order of detention under the provisions of Tamil Nadu Act 14 of 1982, branding the detenu as a "Goonda".
SUMMARY OF CONTENTIONS OF PETITIONERS:
20. The petitioners in all these Habeas Corpus Petitions took identical contentions to demonstrate that the Detaining Authority mechanically passed the detention orders and it was a pre-determined act in collusion with the Minister for Co-operation, who is inimically indisposed against Thiru.Pasumponpandian, who was the West Area Secretary In-charge of AIADMK party.
21. The petitioners contended that these three cases were fabricated by the police in connivance with the local Minister to see that the detenus are confined in prison during the time of Assembly election. The petitioners further contended that the First Information Report registered in Crime Nos.33, 61 and 74 of 2016 did not contain the name of any of the accused. It was prepared in such a way that it would enable the police to implicate all others who are in war with the local Minister. The non-consideration of the documents available on record before passing the orders of detention and the delay in considering the representations by the statutory authorities were also taken as grounds to quash the orders of detention.
COUNTER-AFFIDAVIT:
22. The Commissioner of Police filed separate counter-affidavits justifying the action taken by him to detain the concerned detenus. According to the Commissioner of Police, it was only to create a bad name to Thiru.Sellur.K.Raju, M.L.A., who was also a Minister, the detenus hurled bomb at the office of AIADMK located at Panagal Road. The detenus also made an attempt to disturb the peaceful conduct of the public meeting convened by the AIADMK party. The Commissioner explained the steps taken by him to detain the detenus under the provisions of Tamil Nadu Act 14 of 1982.
SUBMISSIONS ON BEHALF OF PETITIONERS:
23. The learned Senior Counsel appearing on behalf of the petitioners in H.C.P.(MD)Nos.556 to 558 of 2016 and the learned counsel appearing on behalf of the petitioners in H.C.P.(MD)Nos.687 and 688 of 2016, contended that three cases referred to by the Commissioner of Police, were all concocted with a view to suppress the dissenting opinion formed against the local Minister. According to the learned Senior Counsel, the local people were opposed to the activities of the Minister and as such, he was determined to put his opponents behind the bar, so as to deny them right to take part in the election process. The learned Senior Counsel submitted that a perusal of the Detention Orders would make it clear that there was total non-application of mind. The involvement of the concerned detenus in a case registered on 10 January, 2016, was taken as the adverse case. The case registered on 09 January, 2016, was treated as the ground case. The Commissioner of Police, in the Detention Orders, indicated that some of the detenus were produced on PT warrant. However, in the confession recorded by the police, it was mentioned that the accused appeared before the Inspector of Police, pursuant to the notice issued by him and they have given confession statements voluntarily. The learned Senior Counsel further contended that nobody was injured in explosion. The First Information Report did not contain the name of any of the accused. The police added the name of these detenus and cooked up a false case to detain them under the provisions of Tamil Nadu Act 14 of 1982.
24. The learned Senior Counsel, further, contended that there was undue delay in considering the representation by the statutory authority and as such, the Detention Orders are liable to be quashed on that ground also.
25. The learned Senior Counsel placed reliance on the following decisions:
(i) The judgment in Raj v. The Secretary to Government [2014(3) MWN (Cr.) 4)(DB)] was relied on to contend that there is no question of detention, in case similar cases relied upon by the Detaining Authority are not for same offences as that of ground case and adverse cases.
(ii) The judgment of the Supreme Court in State of Maharashtra v.
Zubair Haji Qasim [2008(3) MLJ (Crl) 627 (SC)], was relied on to contend that detention is recognized as an evil necessity and the same requires strict adherence to the safeguards that have been placed at different stages of the detention proceedings to ensure that such powers were not used indiscriminately to set the scores or to short-circuit the process of investigation and trial of an alleged offence.
(iii) The judgment of the Supreme Court in Rajammal v. State of Tamil Nadu [1999(1) SCC 417], was cited to explain the point that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In the said judgment, the Supreme Court observed that it is not enough to say that the delay was very short. Even longer delay can as well be explained. According to the Supreme Court, the test is not the duration or range of delay, but how it is explained by the authority concerned.
SUBMISSIONS ON BEHALF OF THE STATE:
26. The learned Additional Advocate General justified the impugned orders passed by the Commissioner of Police. According to the learned Additional Advocate General, the delay is only three days. The delay is not abnormal. Since the representation was considered during the time of election and the Minister in-charge to look into the matter himself was a candidate, there was a delay of three days. The said delay cannot be characterized as abnormal or unexplained. The learned Additional Advocate General, further, contended that the detenus wanted an atmosphere to be created to make it appear as if the ruling party is not in a position to control law and order and as such, a new Government should be elected. It was contended that the Commissioner of Police considered all the documents and arrived at a subjective satisfaction that the activities of the detenus are prejudicial to the interest of the State and rightly detained them.
27. The learned Additional Advocate General placed reliance on the following judgments:
(i) The judgment of the Supreme Court in M.Mohamed Sulthan v. JT. Secy.
to Government of India [1991 SCC (Cri) 104], was cited to contend that length of the delay alone is material. In the said case, the Supreme Court found that 6 days delay in considering the representation was not unduly long.
(ii) The judgment of the Supreme Court in K.M.Abdulla Kunhi v. Union of India [1991 SCC (Cri) 613] was cited to prove the point that as long as the Government without delay considers the representation with an unbiased mind, there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention.
(iii) The judgment in State of Tamil Nadu v. C.Subramani [1993 SCC (Cri.) 28], was relied on to contend that the question of any period taken in dealing with the representation has to be decided in the peculiar facts and circumstances of each case and it cannot be determined on the basis of any rigid period of time uniformly applicable to all cases.
(iv) The decision of the Supreme Court in Noor Salman Makani vs. Union of India [1994 SCC (Cri.) 521] was again cited to demonstrate that delay of 5 days taken by the authorities in furnishing the parawise comments on the representation is not undue delay.
28. The judgment of the Supreme Court in Subramanian v. State of TN [2012(4) SCC 699], was relied on to argue that when grounds of detention are precise, pertinent, proximate and relevant, subjective satisfaction formed on that basis by the Detaining Authority about detenu acting in a manner prejudicial to maintenance of public order and necessity of preventively detaining him is not open to judicial review.
DISCUSSION:
29. The petitioner in H.C.P.(MD)No.556 of 2016 was detained pursuant to the request made by Tmt.M.Santhi, Inspector of Police, Law and Order, E2 Madhichiam Police Station, Madurai City. The affidavit of the sponsoring authority is dated 20 April, 2016. The Inspector of Police requested the Detaining Authority, viz., the Commissioner of Police, Madurai, to take action against Madasamy, the petitioner in H.C.P.(MD)No.556 of 2016, under the provisions of Tamil Nadu Act 14 of 1982.
30. The sponsoring authority, in her request, through a sworn affidavit, indicated that the petitioner is involved in a case in Crime No.74 of 2016 on the file of C3 S.S. Colony Police Station. Similarly, he is involved in a case in Crime No.61 of 2016 on the file of B6 Jaihindpuram Police Station. The sponsoring authority, therefore, made a request to the Commissioner of Police, in his capacity as the Detaining Authority to detain the petitioner. However, very strangely, the affidavit of the sponsoring authority was attested by the very same Commissioner of Police, Madurai City, who was expected to consider the request independently and pass orders thereon in accordance with the Tamil Nadu Act 14 of 1982.
31. The affidavits of the sponsoring authority in the other Habeas Corpus Petitions were also attested by the Commissioner of Police, Madurai City, thereby giving an impression that it was prepared in his immediate presence at his office.
THE ATTESTATION OF AFFIDAVITS OF THE SPONSORING AUTHORITY BY DETAINING AUTHORITY INDICATES PRE-DETERMINATION:
32. The sponsoring authority in these five cases submitted separate applications to the Commissioner of Police, Madurai City, to detain the concerned detenus under the Tamil Nadu Act 14 of 1982. The Commissioner, while attesting the affidavits of the sponsoring authority, made an endorsement that the deponent solemnly affirmed before him on the date indicated in the affidavit and signed in his presence. The seal of the Commissioner, Madurai City is found affixed in the affidavits sworn to by the sponsoring authority.
33. The very same Commissioner, thereafter, passed the order of detention on different dates. The detention order in H.C.P.(MD)No.556 of 2016 was passed on 21 April, 2016. The detention order in H.C.P.(MD)No.557 of 2016 was passed on 18 April, 2016. The detention order in H.C.P.(MD)No.558 of 2016 was passed on 18 April, 2016. The detention order in H.C.P.(MD)No.687 of 2016 was passed on 18 May, 2016. Similarly, the detention order in H.C.P.(MD)No.688 of 2016 was passed on 11 May, 2016.
34. The affidavit of the sponsoring authority in H.C.P.(MD)No.556 of 2016 is dated 20 April, 2016. Based on the said affidavit, duly attested by the Commissioner of Police, the very same Commissioner of Police, Madurai, in his capacity as the Detaining Authority passed the order of detention on 21 April, 2016, which is challenged in H.C.P.(MD)No.556 of 2016.
35. The sponsoring authority is at liberty to make a request to the Detaining Authority to detain the accused. Mere affidavit is not sufficient. The sponsoring authority must produce materials before the Detaining Authority to show that the detenu is acting in a manner prejudicial to the maintenance of public order and as such, he should be detained under the provisions of Tamil Nadu Act 14 of 1982. Here, in this case, the authority empowered to detain, himself acted as the complainant by attesting the affidavit of the sponsoring authority.
NATURE OF JURISDICTION:
36. The Tamil Nadu Act 14 of 1982 was enacted to prevent dangerous activities prejudicial to the maintenance of public order. The Act empowers the State Government, District Magistrate and Commissioner of Police, to deny or deprive the citizen of his liberty without resorting to enquiry or trial. It is only because of the nature of jurisdiction conferred under Tamil Nadu Act 14 of 1982, the power is given to the State Government and few superior officers.
37. The detention by invoking the provisions of Act 14 of 1982 is not in the nature of punishment. It is essentially to prevent the detenu from undertaking activities prejudicial to public order.
38. The Commissioner of Police was designated as the authority to detain a person under Act 14 of 1982. He is, therefore, empowered to deprive the detenu of his freedom and personal liberty for a particular period. The Detaining Authority, therefore, must be satisfied that there are sufficient grounds justifying preventive action against the person concerned. He should analyze the materials produced before him by the sponsoring authority and must arrive at a subjective satisfaction that in case the detenu is not detained, he would indulge in activities prejudicial to the maintenance of public order.
39. The Commissioner of Police was expected to consider the materials independently and in an unbiased manner without the intervention of the sponsoring authority. He is exercising a statutory function conferred on him by the statute. He is not acting as a police officer, but as an authority empowered to detain a person under Act 14 of 1982. Since the Commissioner of Police is the statutory authority to detain those who are likely to engage in acts prejudicial to maintenance of public order, he is not expected to take part in any of the preparatory works for detention. The Commissioner of Police should not be seen as a complainant or privy to the decision to make a request to detain a person. If it is demonstrated that the Commissioner of Police himself made the ground work to detain a person, and thereafter, passed the order of detention, such orders are liable to be quashed on the ground of pre-determination.
40. The Act mandates that the Commissioner of Police must arrive at a satisfaction on the basis of materials placed before him. In case the materials were collected by him, or he actively took part either to make out the grounds to detain a person or to make a request to detain a person through the sponsoring authority, it would be clear that he acted with a pre- conceived notion to set the scores.
41. The Detaining Authority should act independently and with an open mind. He should not prejudge the issue even before considering the materials produced before him by the sponsoring authority.
42. In the subject cases, it is clear that the Commissioner of Police actively took part in the process of sponsoring the case of the detenus for detention. The affidavits of the sponsoring officers were attested by the Commissioner of Police by sitting in the arm-chair of the Detaining Authority. He was, therefore, in the know of things, even before the commencement of statutory proceedings for detention. In short, the Commissioner of Police himself was part of the team of complainants otherwise called as sponsoring authorities. Thereafter, he turned the chair and acted in a different capacity as the Detaining Authority. The sponsoring authority and Detaining Authority are practically one and the same in all these matters.
43. The active participation of the Detaining Authority in the process of sponsoring the name of the detenus for detention would go to the root of the matter and, therefore, is sufficient to set aside the orders of detention on the ground of pre-determination. We are, therefore, of the view that the detention orders are unsustainable in law.
DELAY:
44. The Under Secretary to Government, Home, Prohibition and Excise (IX) Department produced a proforma in all these Habeas Corpus Petitions indicating the receipt of representations from the detenus and the disposal of the same by the Government.
H.C.P.(MD)No.556 of 2016:
45(A). The first representation dated 28.04.2016 was received by the Government on 02.05.2016. After obtaining the remarks, the Under Secretary and the Deputy Secretary perused the file and offered remarks on 11.05.2016 and sent it to the Minister. The Minister rejected the first representation on 17.05.2016. There is a delay of 6 days between 11.05.2016 and 17.05.2016. Even if 3 days holidays in between, including the date of polling on 16.05.2016, are excluded, still there is a delay of 3 days. This delay has not been explained at all.
(B). The second representation was considered by the Under Secretary and Deputy Secretary on 14.06.2016 and the file was sent to the Minister forthwith. The Minister rejected the representation on 01.07.2016. There is a delay of 17 days between 14.06.2016 and 01.07.2016. In between there were 4 holidays. Even if those holidays are excluded, still there is a delay of 13 days in the disposal of the representation.
There was no attempt made either by the Detaining Authority or by the Government to explain the undue delay in considering the representations submitted by the detenu.
H.C.P.(MD)No.557 of 2016:
46(A). The representation dated 28.04.2016 was received by the Government on 02.05.2016. After obtaining the remarks, the Under Secretary and the Deputy Secretary considered the representation and offered their comments on 10.05.2016. The file was sent to the Minister for Electricity and Prohibition and Excise immediately. The Minister rejected the representation on 17.05.2016. There is a delay of 4 days in considering the representation.
(B). The fifth representation was received by the Government on 06.06.2016. The Under Secretary and the Deputy Secretary, after obtaining the remarks, considered the issue on 14.06.2016. The file was sent to the Minister on 14.06.2016. The Minister rejected the representation on 01.07.2016. There is a delay of 17 days in considering the representation by the Minister. Even if 4 holidays in between are deducted, still there is a delay of 13 days. This delay has not been explained either by the Detaining Authority or by the Government by furnishing materials.
H.C.P.(MD)No.558 of 2016:
47(A). The first representation dated 28.04.2016 was received by the Government on 02.05.2016. After obtaining the remarks on 02.05.2016, the file was submitted to the Secretary on 04.05.2016. The Under Secretary and the Deputy Secretary perused the file and offered their remarks on 05.05.2016. However, the Minister considered the file only on 17.05.2016 and rejected the representation. There is a delay of 12 days between 05.05.2016 and 17.05.2016. There were 5 holidays in between including the date of polling on 16.05.2016. Even after excluding those 5 days, there is a delay of 7 days.
This delay has not been explained either by the Detaining Authority or by the Government in a satisfactory manner.
The rejection letter prepared on 18.05.2016 was sent to the detenu on 19.05.2016. It was served only on 23.05.2016. The mode of sending the rejection letter is not indicated by the Government in the proforma or in the counter filed by the Detaining Authority.
(B). The third representation was received by the Government on 06.06.2016. The Under Secretary and the Deputy Secretary offered their remarks on 13.06.2016. The file was sent to the Minister for Electricity and Prohibition and Excise. The Minister perused the file on 01.07.2016 and rejected the representation. There is a delay of 18 days between 13.06.2016 and 01.07.2016. There were four holidays in between the date of consideration by the Deputy Secretary and the Minister. If those 4 days are excluded, still there is a delay of 14 days. The delay was not at all explained either by the Detaining Authority or by the Government.
H.C.P.(MD)No.687 of 2016:
48(A). The representation dated 27.05.2016 was received by the Government on 06.06.2016. After receiving the remarks, the file was submitted on 07.06.2016. The Deputy Secretary to Government perused the file and offered his remarks on 08.06.2016. Thereafter, the file was dealt with by the Minister for Electricity, Prohibition and Excise on 29.06.2016. Between 08.06.2016 and 29.06.2016, there was a delay of 21 days. There were 6 holidays in between 08.06.2016 and 29.06.2016. Even after excluding the Holidays, there is a delay of 15 days in considering the representation by the Government.
The rejection letter was prepared on 30.06.2016. There is noting on record to show as to when it was served on the detenu.
(B). The second representation was considered by the Under Secretary and the Deputy Secretary on 15.06.2016. The file was sent to the Minister for Electricity, Prohibition and Excise. It was kept pending till 01.07.2016. The Minister rejected the representation on 01.07.2016. The rejection letter was sent to the detenu on 04.07.2016. However, nothing is stated as to when the rejection letter was served on the detenu. There were 4 holidays between 15.06.2016 and 01.07.2016. Even if holidays are excluded, still there is a delay of 12 days. This delay has not been properly explained either by the Detaining Authority or by the Government.
H.C.P.(MD)No.688 of 2016:
49(A). The first representation dated 27.05.2016 was received by the Government on 06.06.2016. After obtaining the remarks, the Under Secretary considered the file on 07.06.2016. Thereafter, the file was dealt with by the Deputy Secretary on 08.06.2016. The file was sent to the Minister on 08.06.2016. The Minister passed orders rejecting the representation on 29.06.2016. There is a delay of 21 days between 08.06.2016 and 29.06.2016.
Even if 6 holidays are excluded, still there is a delay of 15 days.
(B). The second representation was considered by the Under Secretary and Deputy Secretary on 14.06.2016. The Minister rejected the representation on 01.07.2016. There is a delay of 17 days in between 14.06.2016 and 01.07.2016. Even if 4 holidays are excluded, still there is a delay of 13 days in considering the second representation.
The Detaining Authority and the Government miserably failed to explain the undue delay in disposal of the representations.
UNEXPLAINED DELAY RENDERS DETENTION ILLEGAL:
50. In Rekha Vs. State of Tamil Nadu, [2011 (5) SCC 244], the Hon'ble Supreme Court has held that the procedural safeguards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities undertaken by the detenu.
51. In Sumaiya Vs. The Secretary to Government, [2007 (2) MWN (Cr.) 145], a Division Bench of this Court has held that the unexplained delay of three days in disposal of the representation made on behalf of the detenu would be sufficient to set aside the order of detention.
52. In Tara Chand Vs. State of Rajasthan and others, [1980 (2) SCC 321], the Hon'ble Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.
53. There is no hard and fast rule with respect to the outer time limit for disposal of the representation given by the detenu. Each case has to be decided on the peculiar facts.
54. In the cases on hand, the Detaining Authority very clearly stated that the detenus made an attempt to create a bad name to Thiru.Sellur.K.Raju, the Hon'ble Minister for Co-operation. According to the Detaining Authority, the detenus wanted to disrupt the public meeting convened by AIADMK party on 10 January, 2016. The detenus are stated to be the members of AIADMK. They are adverse to the activities of Thiru.Sellur.K.Raju. The name of Thiru.Sellur.K.Raju, the Hon'ble Minister, is mentioned in so many places by the Detaining Authority. Though the concerned Under Secretary and Deputy Secretary forwarded the representations to the Minister, who is a member of the Cabinet along with Thiru.Sellur.K.Raju, it was kept pending by the Minister, without any reasonable cause. According to the petitioners, Thiru.Natham Viswanathan, the Minister for Electricity, who is also a close associate of Thiru.Sellur.K.Raju and hailing from Madurai Region, kept the representations pending deliberately. The proformas produced by the Government would clearly show that the Hon'ble Minister for Electricity kept the representations for days together without any justifiable reason. There was no attempt on the part of the Government to give reasons for the delay. The Detaining Authority also failed to explain the delay in considering the representations by the Hon'ble Minister.
55. The background facts very clearly show that the Minister for Electricity, who was given the authority to consider the representations of the detenus, slept over the issue for days together. The learned Additional Advocate General has given a reason that the Minister himself was a candidate and as such, the matter was delayed. We are not inclined to accept the said submission. In fact, even the Government or Detaining Authority have no such case. The Minister, as a delegate of the Government, was required to consider the representations as expeditiously as possible with all seriousness. The fact that the Minister himself was a candidate cannot be a valid reason to keep the representations pending indefinitely.
56. It is trite that the number of days delay alone are not material.
It is the cause for delay which is material. There was no genuine attempt made either by the Detaining Authority or by the Government to explain the inordinate delay in the disposal of the representations submitted by the detenus. We are, therefore, of the view that the impugned Detention Orders are liable to be quashed on the ground of unexplained delay in considering the representations and its disposal.
BAIL GRANTED TO THE ACCUSED IN SIMILAR CASES:
57. The Detaining Authority in the impugned detention orders indicated that the bail applications filed by the respective detenus were dismissed by the Trial Court. The bail petitions filed before the Sessions Court were pending.
58. The bail granted by the learned Third Additional District Judge (PCR), Madurai, to Thiru.Balamurugan, who was an accused in Crime No.1273 of 2013 under the provisions of the Indian Penal Code and the Explosive Substances Act was taken as a ground to state that there is a possibility of the detenus enlarged on bail. In short, the case of another accused in an unconnected crime was considered as a similar case. The Detaining Authority apprehended that the detenus also would be released on bail as in the case of the accused in Crime No.1273 of 2013.
59. In Huidrom Konungjao Singh v. State of Manipur [2012(7) SCC 181], the Supreme Court held that a similar case is relevant only in case a co-
accused in the same offence is enlarged on bail and on the basis of which, the detenu could also be enlarged on bail. The Supreme Court made it clear that in case the orders relied upon by the Detaining Authority do not relate to co-accused in the same case, meaning thereby, the accused released on those cases on bail, had no concern with the present case, such cases cannot be taken as the basis to arrive at a satisfaction that the detenu would be enlarged on bail at any time. The Supreme Court opined that merely because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case also the detenu would be released on bail.
60. In the subject cases, bail granted to the accused in Crime No.1273 of 2013 was taken as the basis to arrive at a satisfaction that the detenus are likely to be released on bail. The bail granted to the accused Balamurugan has nothing to do with the cases registered against the detenus. Thiru.Balamurugan is not a co-accused. The Detaining Authority considered irrelevant materials to arrive at a satisfaction that there is a likelihood of the detenus being released on bail. The impugned Detention Orders are liable to be quashed on this ground also.
NON-APPLICATION OF MIND:
61. The Detaining Authority referred to the confession statement given by Thiru.Pausmponpandian and implication of other detenus on the basis of his statement. The Detaining Authority referred to the confession statements of other detenus also.
62. The materials available on record would show that the accused were produced on PT warrant. However, in the confession statements, the Inspector of Police made a statement as if the detenus appeared before him on summons. The statement of the Inspector of Police in the respective confession statements goes against the other documents evidencing the production of the accused on PT warrant. The Detaining Authority failed to consider any of these documents and contradictions and signed the Detention Orders in a routine manner.
CONFUSION WITH REGARD TO ADVERSE CASE AND GROUND CASE:
63. The First Information Report was registered on 09 January, 2016. There was no eye witness to the incident in question. The police arrested Pasumponpandian, the petitioner in H.C.P.(MD)No.557 of 2016 and recorded his confession statement. Thereafter, the name of the other accused were included. It is also not in dispute that no body was injured on account of the explosion. Thereafter, another case was registered on 10 January, 2016 by the Inspector of police, B6 Jaihindpuram Police Station on the basis of his own report to the effect that he found a leather bag kept inside a white polythene bag containing two petrol bombs and a country made bomb. According to the Inspector of Police, Anti-social elements placed the explosive materials with an intention to destabilize the public meeting of AIADMK Party scheduled to be held there. The ground case was mentioned as the crime registered on 09 January, 2016. The adverse case was mentioned as the case registered on 10 January, 2016. The Commissioner of Police failed to consider the mistake in the report submitted by the sponsoring authority with regard to adverse case and ground case and passed the orders of detention primarily on the premise that there is a likelihood of releasing the detenus on bail.
64. The Supreme Court in Ramesh Yadav v. Dist. Magistrate, Etah [AIR 1986 SC 315], observed that the likelihood of granting bail alone cannot be a reason to pass an order of detention. The Supreme Court said:
"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed...................."
65. The Supreme Court in Shashi Aggarwal v. State of U.P. [1988(1) SCC 436], observed that the possibility of the Court granting bail to the detenus alone would not be sufficient to pass an order of detention. The Supreme Court said:
"10. Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order."
66. The Supreme Court in Hem Lall Bhandari v. State of Sikkim [AIR 1987 SC 762], observed that the Detaining Authority must act in strict compliance with the mandatory provisions of law. The Supreme Court said:
"12. It is not permissible in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizens is involved, it is necessary for the officers to act with almost expectation and in strict compliance with the mandatory provisions of law. Expeditious action is necessitated upon as a safeguard against the manipulation."
67. In the subject cases, the police initially registered a First Information Report on 09 January, 2016 and the second one on 10 January, 2016. The detenus were arrested on different dates in the month of March and April, 2016. The Detention Orders were passed on 21.04.2016, 18.04.2016, 18.04.2016, 18.05.2016 and 11.05.2016. Therefore, it is clear that when the orders of detention were passed, the detenus were in jail. There are no acceptable materials to show that the detenus would be released on bail or there was such a possibility of their release. The Detaining Authority, on the basis of the so-called similar case registered against another accused in an altogether different case, observed that there is a possibility of the detenus being released on bail. In short, there were no cogent materials before the Detaining Authority to satisfy that the detenus were likely to be released on bail. The mere statement of the Detaining Authority that there is a likelihood of the detenus being released on bail alone is not sufficient. There should be supporting materials available on record. There are no such materials in the subject cases. We are, therefore, of the view that the Detention Orders are liable to be quashed.
DISPOSAL OF INDIVIDUAL CASES:
H.C.P.(MD)No.556 of 2016:
68. The impugned Detention Order, passed by the second respondent in his proceedings in No.23/BCDFGISSSV/2016, dated 21.04.2016, is quashed. The detenu, namely Madasamy, son of Muthupandi Thevar, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
H.C.P.(MD)No.557 of 2016:
69. The impugned Detention Order, passed by the second respondent in his proceedings in No.21/BCDFGISSSV/2016, dated 18.04.2016, is quashed. The detenu, namely Pasumponpandian, Son of Sevugapandian, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
H.C.P.(MD)No.558 of 2016:
70. The impugned Detention Order, passed by the second respondent in his proceedings in No.22/BCDFGISSSV/2016, dated 18.04.2016, is quashed. The detenu, namely Kannan, Son of Rajamani, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
H.C.P.(MD)No.687 of 2016:
71. The impugned Detention Order, passed by the second respondent in his proceedings in No.25/BCDFGISSSV/2016, dated 18.05.2016, is quashed. The detenu, namely Suresh @ Mani, Son of Chandrasekar, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
H.C.P.(MD)No.688 of 2016:
72. The impugned Detention Order, passed by the second respondent in his proceedings in No.24/BCDFGISSSV/2016, dated 11.05.2016, is quashed. The detenu, namely Ajmalkhan, Son of Ayubkhan, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
73. In the upshot, we allow the Habeas Corpus Petitions.
To
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai.
3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..