Madras High Court
Hidaya Banu vs State Of Tamil Nadu on 11 April, 2002
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11/04/2002
Coram
The Honourable Mr. Justice V.S. SIRPURKAR
and
The Honourable Mr. Justice MALAI SUBRAMANIAN
and
The Honourable Mr. Justice A. PACKIARAJ
H.C.P. No.1633 of 2001 and H.C.P.No. 1152 OF 2001
Hidaya Banu :: Petitioner in HCP 1633/2001
Mohamed Razick @
Ponnambalam :: Petitioner in HCP 1152/2001
:versus:
1. State of Tamil Nadu
rep. by Secretary to Govt.
Public (SC) Department
Fort St. George
Chennai – 600 009 :: R1 in both the HCPs
2. State of Tamil Nadu
rep. by Secretary to Govt.
Public (L & O) Department
Fort St. George
Chennai – 600 009 :: R2 in HCP 1152/2001
3. Union of India, rep. by
Secretary to Government
Ministry of Finance R2 in HCP 1633/2001
New Delhi – 1 :: R3 in HCP 1152/2001
4. The Superintendent
Central Prison
Chennai :: R3 in HCP 1633/2001
Petitions under Art.226 of the Constitution
for a Writ of Habeas Corpus as stated in the petitions
!For Petitioners :: Mr. Habibullah Basha, S.C.
For Mr. M.M. Abdul Huck
(in HCP No.1633 of 2001)
Mr. C.T. Subbiah
(in HCP No.1152 of 2001)
^For Respondents :: Mr. I. Subramanian,
Public Prosecutor for R1 & R3
Mr. K. Raviananthapadmanabhan
A.C.G.S.C. For R2 in
H.C.P.No.1633 of 2001
Mr. Su. Srinivasan,
A.C.G.S.C. for R3 in
H.C.P. No.1152 of 2001
:ORDER
V.S. SIRPURKAR, J.
The reference to the Full Bench is occasioned on account of two sets of conflicting judgments, all by Division Benches.
2. In H.C.P. No.1839 of 1999, decided on 19-6-2000, the Division Bench consisting of E. Padmanabhan and R. Balasubramanian, JJ. took the view that when it did not appear from the materials available on record that the detenu was in remand on the date when the detention order was passed and yet, it was asserted in the detention order that the detenu, on the day of passing the detention order, was a remand-prisoner lodged in jail, it only showed non-application of mind on the part of the detaining authority and the detention order was vitiated on that count.
3. In H.C.P. No.352 of 2001, decided on 26-9-2001 by a Division Bench consisting of N. Dhinakar and V. Bakthavatsalu, JJ. it was held that where the detaining authority had stated that the remand of the detenu was extended when it was factually not, it would still amount to non-application of mind. The Division Bench held that if the accused was not produced before the magistrate for the extension of remand and if the order of extension of remand was passed, it would still be a case of non-application of mind if that fact is missed by the detaining authority.
4. In H.C.P. No.1014 of 2001, decided on 26-11-2001, also the Division Bench consisting of S. Jagadeesan and P. Thangavel, JJ. came to the conclusion that the description of the detenu as “remand-prisoner” while he was not so would certainly amount to non-application of mind.
5. On the other hand, however, in H.C.P. No.1237 of 2000, decided on 22-12-2000, it has been held by a Division Bench consisting of K. Narayana Kurup and E. Padmanabhan, JJ. that under similar circumstances when the accused was not produced on the ground that he was admitted in the hospital for treatment and the remand application was directed to be placed on a different date and if, in the meantime, an order of detention was clamped, describing the detenu to be a “remand prisoner”, may not amount to non-application of mind and the detaining authority could still proceed on the ground that the detenu was in remand.
6. To the similar effect is the judgment in H.C.P. No.890 of 2000, decided on 28-9-2000, where, however, the Division Bench expressed that the detenu was factually under remand and, therefore, it could not be said to be a case of non-application of mind.
7. Though the referring-Bench has not specifically formulated the question referred to the Full Bench, the question can be broadly drafted as under:
“Whether reference to the fact that the detenu was a remand-prisoner lodged in a prison when there was no remand order in fact by a Magistrate and when in fact the detenu was not lodged in prison would vitiate the detention order on account of non-application of mind?”
8. In all, two petitions have been referred before us as in both the petitions though the concerned detenu was not under a remand order and was also not lodged in the jail, they were described to be so. Since the reference is on this limited factual background, we need not refer to the facts in details in both the petitions and suffice it to say that it was an admitted position in both the matters that on the day when the detention order was passed, the detenus were not under remand in the sense that no remand order was passed against them by the concerned Magistrate authorising their custody with the police nor were they lodged in the jail though in the detention orders in both the petitions, the detaining authority had described so.
9. The learned senior counsel, Mr. Habibullah Basha, pointed out that the detenu in H.C.P. No.1633 of 2001, who was arrested by the police on 20-9-2001, was produced before the Additional Chief Metropolitan Magistrate, E.O.II, Chennai and was remanded upto 4-10-2001, authorising his custody with the police. On 4-10-2001, however, the detenu Hidayathulla was admitted in the Government General Hospital, Royapettah as he had taken ill on 29-9-2001 and, therefore, he was not produced before the magistrate though the other prisoner one Chandramohan (A-2) was so produced. The magistrate extended the remand of Chandramohan alone upto 18-10-2001 and noted that the detenu Hidayathullah (A-1) was not produced. He, therefore, directed the case to be called on 18-10-2001, the same day up to which the remand of Chandramohan was extended. However, on 17-10-2001, the detention order came to be passed against the detenu Hidayathulla under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) under Sec.3(1)(i) by the Government. The learned counsel specifically invited our attention to paragraph (xxx) of the detention order, which reads as under:
“The DRI, Chennai filed a petition on 4-10-2001 before the ACMM, E.O.II, Chennai seeking for the extension of your remand and that of Thiru S.Chandra-
mohan, ACMM, E.O.II, Chennai passed an order on 4-10-2001 that A.2 was produced and A.1 was not produced; that letter with warrant received that he is admitted at G.R.H. And hence call on 18.10.2001 and that remand extension till then for A.2.” The learned senior counsel thereafter invited our attention to paragraph 5 of the order, the relevant portion of which is as under:
“The State Government are also aware of the fact that you are in the Central Prison, Chennai as remand prisoner and there is likelihood of you being released on bail. The State Government are satisfied that there is likelihood of your indulging in such prejudicial activities again while on bail and there is a compelling necessity to prevent you from indulging in such activities. ...” From this the learned counsel pointed out that on 17-10-2001 when the detention order came to be clamped firstly, the accused was not under remand; secondly, he was also not lodged in the Central Prison and he was in fact admitted in the Government Hospital, Royapettah as an indoor-patient. The learned counsel contended that this was, therefore, a total non-application of mind on the part of the detaining authority.
10. The gravamen of his contention is that the detaining authority has mechanically described the detenu to be a “remand prisoner” and that too lodged in Central Prison. The learned counsel, therefore, pointed out that the detaining authority was not even alive to the fact that the detenu was in the hospital as an indoor-patient. He points out that these facts of the remand not being extended in case of the detenu and his not being lodged in Central Prison but being admitted as an indoor-patient in the Government Hospital, Royapettah were the relevant facts which could have had affected his decision to clamp the detention order on the day it was done, i.e. on 17-10-2001. Ignoring these relevant factors if the detaining authority proceeded on the wrong factual premise, this was nothing but a classic example of non-application of mind.
11. The learned counsel very earnestly argues that there was a total and complete absence of a remand order much less a valid remand order. The contention was that on the date when the detention order was clamped, the detenu was not in the custody of police much less a valid custody. Developing this argument further, the learned counsel heavily relying on the provisions of Sec.167(2)(b) of the Code of Criminal Procedure (in short “Crl.P.C.”) submitted that indeed, the magistrate, in law, could not have extended the remand and did not, in fact, extend the remand and, therefore, describing the detenu as a “ remand prisoner” lodged in Central jail was non-application of mind and, therefore, the detention order was vitiated. The learned counsel categorically clarified that he was not questioning the validity or otherwise of the custody of the detenu in between 4-10-2001 and 17-10-2001 but canvassing the invalidity of the detention order on account of this apparent nonapplication of mind.
12. As against this, the learned Public Prosecutor, Mr. I. Subramanian, contended that firstly it could not be said that the accused in this case was not in custody and as such was not a remand prisoner. According to him, though the detenu was not produced before the magistrate, the magistrate had not ordered the release of the accused – detenu herein but had directed the case to be called on 18-10-2001. The learned Public Prosecutor, therefore, urged that the direction to call the case on 18-10-2001 virtually amounted to the extension of the remand particularly seen on the backdrop of the fact that there was no “release order” passed by the magistrate. The learned Public Prosecutor heavily relying on the Full Bench decision of the Patna High Court reported in AIR 1988 Pat. 199 (Ramesh Kumar Ravi v. State of Bihar) as also the Full Bench decision of the Andhra Pradesh High Court reported in 1992 Crl.L.J. 3485 (Kurra Dasaratha Ramaiah v. State of Andhra Pradesh) and Division Bench judgment of the Karnataka High Court reported in 1993 Crl.L.J. 102 (Smt. Noor Jahan v. State of Karnataka) contended that the consensus of the legal opinion was that where the accused could not be produced on account of some genuine difficulties before the magistrate yet, even in the teeth of Sec.167(2)(b) of Crl.P.C. the remand could be legally extended and at least it could be said that any order extending the remand in the absence of the accused on account of such extraordinary factual situation making the production of the accused impossible satisfactorily proved before the magistrate would not by itself invalidate the remand order. The learned Public Prosecutor, therefore, proceeds to say that the situation was no different in this case and, therefore, in fact, the accused-detenu did continue to be on extended remand and, therefore, could be validly described as a “remand prisoner”. Relying on some rules of the Jail Manual, the learned Public Prosecutor further tried to stretch his argument that though the detenu was admitted in the Government Hospital, there was nothing wrong if he was described to be “in Central Prison” and that expression in paragraph 5 of the detention order could at the most be called “inappropriate expression” and could not be relied upon by the detenu as an example of non-application of mind. The learned Public Prosecutor very heavily relied on the judgment of the Apex Court reported in AIR 1993 SC 962 (Birendra Kumar v. State) for this purpose.
13. It will be, therefore, for us to decide as to whether the defects shown in the detention order described above could really amount to the non-application of mind, vitiating the detention orders.
14. For arriving at a finding of non-application of mind by the detaining authority, it will have to be essentially found whether the detaining authority has in fact failed to consider any relevant situation which would have affected his decision of clamping the detention order. Further, it would be also a non-application of mind if the authority proceeds on the basis of totally incorrect facts, completely ignoring the circumstance that those facts were factually incorrect if such facts have the effect of affecting his decision-making process. We shall now test whether such is the situation in the present case.
15. It was obvious that on the day when the detention order was passed, i.e. on 17-10-2001, there was no remand order in case of the detenu. It was fairly admitted by the learned Public Prosecutor that the remand was extended only in case of the other accused Chandramohan. The remand order also stands testimony to this fact. It was obvious that the learned Magistrate, who was dealing with the remand, had taken note of the fact that accused-detenu was not produced before him and was in fact admitted in the Government Hospital, Royapettah as an indoor-patient. He has noted this fact also in his order. However, the fact remains that he did not pass a remand order considering this situation of the accused-detenu being admitted in the hospital on the day and it being impossible for the police to produce him in the court. Thus, there was no remand order in existence on the day when the detention order was passed and as such, the detenu could not be said to be a “remand-prisoner”. Again, factually there is no dispute that on that day the accused-detenu was not an inmate of the Central Prison, Chennai though he was described to be so in the detention order. He was admitted in the Government Hospital, Royapettah as an in-door patient. Mr. Basha, therefore, contended and in our opinion rightly that here was a situation where even being aware of the fact of the non-extension of remand on account of the detenu being admitted in the hospital and not having been produced before the magistrate, the detaining authority still went on to describe the accused-detenu as a “remand-prisoner” and lodged in the Central Prison, Chennai. He pointed out that the awareness on the part of the detaining authority of the facts of non-extension of the remand was writ large in paragraph (xxx) of the detention order and yet ultimately in paragraph 5, the concerned detaining authority described the detenu as a “remandprisoner”. This, according to the learned senior counsel, was a classic example of non-application of mind.
16. The other argument was that in describing the accused-detenu as a “remand-prisoner” and his being lodged in the Central Prison, Chennai, the detaining authority has ignored a very relevant fact that the detenu was in fact admitted in the Government Hospital, Royapettah as an indoor-patient and that he could not have been produced or was not produced before the magistrate on account of his precarious health. According to Mr. Basha, these facts were extremely relevant because they would have one way or the other affected the decision to clamp the order of detention on that particular day. The learned counsel argues that it could be that considering the precarious health the order might not have been passed on that day. Therefore, considering the question on both the hypotheses, it was example of non-application of mind.
17. This argument was tried to be met by the learned Public Prosecutor by suggesting that the court had directed the case to be called on 18-10-2001 and had failed to release the accused and, therefore, it should be taken as if the accused-detenu was under the remand order. The learned Public Prosecutor argues on the basis of the Full Bench decision of the Patna High Court in Ramesh Kumar Ravi’s case, cited supra, as also the Full Bench decision of the Andhra Pradesh High Court in Kurra Dasaratha Ramaiah case, cited supra, and Division Bench judgment of the Karnataka High Court in Noor Jahan case, cited supra, that had the magistrate passed the order on that day granting the remand, such order would not have been rendered illegal and under those circumstances the description of the accused-detenu as a “remandprisoner” would have been proper.
18. We are not here to decide the correctness or otherwise of any remand order because such remand order was never passed. The argument could have been considered if there was in fact a remand order and such remand order had been assailed by the petitioner on the ground of the mandatory provisions of Sec.167(2)(b) of Crl.P.C. whereby a negative injunction has been issued by the legislature restraining the magistrates to extend the remand in the absence of the production of the accused. Such factual situation, however, is not there in the present case. Therefore, the reliance by the learned Public Prosecutor on these three authorities would be of no consequence. The fact remains that there was no order extending the remand and yet the petitioner was described as a “remand prisoner”. We do not wish to go into the debate on the question as to what is the duty of the magistrate if an accused cannot be produced before him for grant/extension of remand for some extraordinary situation and what are the duties cast upon the magistrate in passing the remand order in such cases because we have to deal with the factual situation here available in this case that in fact there was no remand order. Mr. Basha contended before us and in our opinion rightly that had such remand order been actually passed on 4-10-2001 perhaps in these proceedings the detenu could not raise the plea of non-application of mind on the part of the detaining authority. The learned counsel is undoubtedly right because it would not be for the detaining authority to decide the legality or otherwise of the order. It was sufficient if such order was actually there in existence. The detaining authority would have been certainly presenting a correct factual picture that on the day when the detention order was passed, the detenu was a remand-prisoner.
19. We have no doubts in our mind that the circumstances like accused-detenu being on remand, being already incarcerated in the jail or being admitted in the hospital and not being available for being produced before the magistrate and the total absence of the remand order were circumstances which were bound to be taken into consideration by the detaining authority as these were extremely relevant facts which would have one way or the other affected his thinking-process and would have in the result affected his decision to clamp a detention order. The two aforementioned judgments in H.C.P. Nos.1839 of 1999 and and 1014 of 2001 are correctly decided in this behalf. The judgment in H.C.P. No.352 of 2001 is also partly correct except to the extent that we have shown in paragraph 18 above. It is by now a settled law that a factually incorrect statement in respect of the extension of remand vitally and fatally affects the detention order. The same factual situation is obtained here.
20. We will now take stock of the argument of the learned Pubic Prosecutor that it was a mere “misdescription” or “inappropriate expression”. The argument is based on the decision of the Apex Court in Birendra Kumar Ravi case, cited supra and more particularly the observations by the Supreme Court in paragraphs 6 and 8. This was a case where the Apex Court was considering the effect of the factually erroneous statement made in the detention order. It was suggested in the detention order in that case that though the prosecution under N.D.P.S. Act, 1985 was “likely” to be initiated against the detenu, the detaining authority was satisfied that there was compelling necessity in view of the likelihood of the detenu indulging in illicit traffic of Narcotics Drugs as was evident from the trend of the activities of the detenu to detain him. It was pointed out that factually this was not correct because the criminal proceedings under the N.D.P.S. Act were already initiated on 7-10-1990, that is much prior to the date on which the order was passed, i.e. on 4-12-1990. It was, therefore, suggested that there was a factual error and the detaining authority had actually not taken into consideration the circumstance of the pending prosecution. In this behalf, it was also argued before the Apex Court that the grounds of detention did not show that the detaining authority was aware that the petitioner-detenu was already in jail for some other offences under the Arms Act and Motor Vehicles Act. While rejecting this argument of non-application of mind on the grounds alleged, the Apex Court found that in fact the complaint was lodged on 7 -11-1990 itself by the police for the offence under the N.D.P.S. Act against the petitioner-detenu and his relatives in the Court of Sessions Judge, Varanasi and the custody warrant was also issued on 22-11-1990. However, the petitioner was already under arrest on account of his involvement in the offences under the Arms Act and Motor Vehicles Act on 21-11-1990 and was lodged in District Jail, Ghazipur. Therefore, the warrant of arrest issued for the offences under the N.D.P.S. Act was never executed nor was the detenu ever produced before the concerned Sessions Judge at Varanasi and thus the detenu was never taken into custody under Crime Case No.195 of 1990 under N.D.P.S. Act and continued to remain in the District Jail, Ghazipur in Crime Case No.402 of 1990 under the Arms Act and Motor Vehicles Act till the passing of the detention order on 4-12-1990. The Apex Court took the view that there was nothing wrong in mentioning in the grounds of detention that the proceedings under the N.D.P.S. Act were likely to be initiated against the detenu. The following observations have been very heavily relied upon by the learned Public Prosecutor:
“It is no doubt correct that the word ‘likely’ used in the grounds of detention may not be fully appropriate but this cannot be meant that the detaining authority was not aware of the case pending under NDPS Act, 1985 at Varanasi. We are satisfied with the explanation given by the learned Additional Solicitor General in this regard that till the warrant of arrest issued by the Varanasi Court was executed and the petitioner was brought and produced before the concerned Court at Varanasi, the detaining authority was justified in considering that the proseuction proceedings under NDPS Act, 1985 were likely to be initiated against the petitioner. It may be further noted that in para 19 of grounds of detention, it has been clearly mentioned that a bail application on behalf of the petitioner had been filed in the Court of Sessions Judge, Varanasi on 3-12-1990 and in which the next date of hearing had been fixed for 7-12-1990. Thus, it cannot be said that the detaining authority was not aware or had not applied its mind in respect of the fact that a case under NDPS Act, 1985 was already pending in the Court at Varanasi when the detaining authority was mentioning the fact that the petitioner had moved the bail applciation on 3-12-1990 and which was fixed for hearing on 7-12-1990.” The learned Public Prosecutor argues that the circumstances in that case were more grave and the error more serious than in the present case. The argument is that if the Apex Court condoned the inappropriate user of the word “likely” in that case and took notice of the fact that under the facts of that case, the detaining authority was justified in passing the order of detention, the same standards should be applied by us in this case. The learned Public Prosecutor points out that in this case also, a bail application was pending on behalf of the detenu on the date when the order was passed, which was clear from ground No.(xxx) of the grounds of detention and, therefore, the detaining authority in this case could not be said to have been wrong in describing the detenu as a “remand-prisoner” though inappropriately. The pendency of the bail application relied upon by the learned Public Prosecutor, in our opinion, is not apposite at all.
21. The facts in the aforementioned case would speak for themselves and are clearly distinct from the facts involved in the present case. In the reported decision, the user of the word ‘likely’ was found to be only inappropriate under the facts of that case more particularly because at the time when the order was passed, the accused was not even produced before the Sessions Judge, Varanasi before whom the case under NDPS Act was pending.
He was not even arrested under that case and, therefore, the Court described the user of the word ‘ likely’ as merely ‘inappropriate’ but, that is not the case in the present situation. Here, a factually incorrect statement has been made by the detaining authority to the effect that, on the date of the passing of the detention order, the detenu was a “remand-prisoner” though there was clearly no remand order against him passed by the concerned magistrate. The matter did not stop here also. The detenu was also described as being lodged in Central Jail, Chennai which was far from the truth as the detenu admittedly was admitted in the Government Hospital as an indoor-patient and indeed he could never have been in the Central Jail as there was no authority to the jail authorities to keep him in the cell.
22. The learned counsel for the petitioner invited our attention to the celebrated decision of this Court reported in 1983 L.W. (Crl.) 121 (Elumalai v. State of Tamil Nadu) where this Court has held that the jail authorities cannot keep any prisoner without the orders of remand from the judicial magistrate even for a moment beyond the period of detention already ordered. From that the learned counsel argued that even otherwise, therefore, the jail authorities could not have kept the detenu inside the jail in the absence of any remand order. We will only say that we are not concerned here with whether the accused was rightly or wrongly confined in the jail because the fact remains that he was factually and admittedly not in the jail on the day when the detention order was passed. Therefore, there was a basic and initial misstatement on the part of the detaining authority in describing the accused-detenu as being in Central Prison, Chennai. It is noticeable in this behalf that at the most the accused-detenu could have been described as a person “arrested” but certainly not as a “ remand prisoner”.
23. In this behalf Mr. Basha has pointed out to us the Tamil Nadu Prison Rules, 1983 wherein the terms “prisoner”, “remand prisoner” and “under trial prisoner” have been defined under clauses (xii), (xv) and (xvii) respectively, which read as under:
prisoner means any person duly committed to custody under the writ, warrant or order of any court or competent authority exercising criminal or civil or revenue jurisdiction including any of the houses of Parliament or State Legislature;
remand prisoner means a person who has been remanded to prison custody, pending investigation by the Police for trial by the Court;
under trial prisoner means a person who has been committed to prison custody pending trial by the court.” The above definitions suggest that in case of a “remand prisoner”, “ under trial prisoner” and “prisoner”, there must be a proper order by the court and indeed in the absence of a proper order, there could be no justification by the jail authorities to confine that person in the jail. For the same reasons, there can be no justification on the part of the detaining authority to describe the detenu as a “remand prisoner”.
24. All these would go to suggest that the description of the accused-detenu as a “remand prisoner” and the further statement that he was lodged in the Central Jail, Chennai was wholly incorrect and would suggest a total non-application of mind on the part of the detaining authority. For that reason, the decision in Briendra Kumar Rai case, cited supra, would be of no help to the respondents.
25. It was then tried to be suggested by the learned Public Prosecutor that at least now the accused-detenu under a proper remand on the basis of the subsequent orders passed by the concerned magistrate and, therefore, relying on the decision reported in AIR 1953 SC 277 ( Ram Narayan Singh v. The State of Delhi and others), we must take the present circumstance into consideration.
26. We are unable to accept this contention as, in our opinion, the said decision will not apply at all because of the totally different facts. In the concerned decision, the question which was considered was whether the detention of the accused under two remand orders was correct or not. That was a case under Sec.344 of the Code of Criminal Procedure, 1898. It was tried to be suggested that those remand orders were incorrect in law as they did not actually amount to the remand orders at all. However, the Supreme Court took the note of the fresh orders passed directing the remand of the detenu in the jail custody and on that the Supreme Court took the view that since on the date of hearing the accused was properly detained under a proper remand order, the earlier illegality could not be taken into consideration. The facts involved in the present case are entirely different. In the aforementioned case, the Supreme Court was not considering the correctness or otherwise of a detention order, which is our basic task here, because if that order is found to be incorrect then, there would be no question of passing any further order of detention and indeed such further order of detention has in reality not been passed. The factual scenario is entirely different.
27. The learned Public Prosecutor tried to rely on the decision reported in AIR 1991 SC 2261 (Abdul Sathar Ibrahim Manik v. Union of India) as also the decision reported in 1999 (2) SCC Crl. 1469 = 1999 (8) J.T. 252. According to us, both these decisions, which concern with the question of documents to be furnished to the detenu, are not apposite on the subject here. Similar is the case with the decision reported in 1993 L.W. Crl. 392 (T. Mohan v. State) wherein it was held by a Division Bench of this Court that the mistake committed by the court should not cause injury to the prosecution. The learned Public Prosecutor wanted to suggest that the concerned magistrate should have passed the order of remand because he could have passed a valid order even in the absence of the production of the accused and as such his apathy to pass the remand order should not be viewed against the prosecution and, therefore, the maxim Actus Curiae Neminem Gravabit should be made applicable to this case as was done by the Supreme Court in AIR 1988 SC 1531 (A.R. Antulay v. R.S. Nayak).
We are not judging in this case the correctness or otherwise of the remand order. The facts that the subsequent remand orders were passed against the accused and thereby he was lodged in proper custody are the facts which are totally irrelevant for the question as to whether the detaining authority in this case was guilty of non-application of mind or not. Merely because subsequently the detenu was remanded to the proper custody, he was deemed to be under remand even on the day of the passing of the detention order would be stretching the matter too far.
28. No other point was argued before us.
29. For the reasons stated above, we are of the opinion that in this case the detention orders suffer from non-application of mind and are liable to be vitiated on that account. We answer the question framed by us above accordingly. Since the petitioners succeed on this ground alone, we do not find it necessary to refer the matter back to the Division Bench and would choose to allow the petitions by ordering the release of the detenus forthwith unless they are required in connection with any other case.
Index:Yes Website:Yes (V.S.S., J.) (M.S., J.) (A.P., J.) Jai/- 11-04-2002 Assistant Registrar /TRUE COPY/ Sub Assistant Registrar (Stat./C.S.) To: 1. The Secretary to Government Public (SC) Department Fort St. George Chennai 2. The Secretary to Government Public (L&O) Department Fort St. George 3. Secretary to Government Ministry of Finance New Delhi – 1 4. The Public Prosecutor High Court, Madras 5. The Superintendent of Central Prison, Chennai V.S. SIRPURKAR, J. MALAI SUBRAMANIAN, J. A. PACKIARAJ, J. ORDER in H.C.P. Nos.1633 & 1152 of 2001