Madras High Court
M. Palaniammal vs The Secretary To Government on 27 April, 2005
Author: P.K. Misra
Bench: P.K. Misra
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27-04-2005
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE AR.RAMALINGAM
HABEAS CORPUS PETITION NO.28 OF 2005
M. Palaniammal
W/o. Mariappa Nadar .. Petitioner
Vs.
1. The Secretary to Government,
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort St. George,
Chennai 600 009.
2. The District Magistrate and
District Collector,
Collectorate Buildings,
Virudhunagar Town & District.
3. The Inspector of Police,
Sivakasi Town P.S.,
Virudhunagar District. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of writ of Habeas Corpus to call for the records of the 2nd respondent
in his proceedings in Crl.M.P.11/04 dated 9.12.04 and to quash the same and
direct the respondents to produce the body of the detenu Kutty @ Madasamy before
this Court and set him at liberty now detained in Special Sub-Jail, Poonamallee.
! For Petitioner : Mr.G. Marimuthu
For Respondents : Mr.K. Radhakrishnan
Addl. Public Prosecutor
- - -
: O R D E R
P.K. MISRA, J The order of preventive detention in respect of detenu Kutty @ Madasamy passed under Act 14 of 1982 on 9.12.2004 has been challenged by the detenu's mother.
2. In the grounds of detention, it has been indicated that the detenu is a history sheeted bad character suspect and he had come to adverse notice in the following cases :
(1) Rajapalayam North P.S. Crime No.431/96, wherein the detenu was sentenced to undergo S.I for one month u/s.341 IPC., S.I for two years u/s.353 IPC., S.I for three months u/s.336 IPC., S.I for one year u/s.427 IPC and S.I for two years u/s.506(ii) IPC.
(2) Srivilliputtur Town P.S. Crime No.62/98 for the offence under Sections 147, 148, 341, 332, 324, 307, 286 IPC read with Section 3 of the Indian Explosives Substances Act in respect of incident dated 19.1.1998 and trial relating to this case is pending in Sessions Court. (3) Krishnankovil P.S Crime No.117/02 dated 19.8.2002 for the offence under Sections 302, 211 read with 109, 120(b) IPC read with 3(ii)(v) of SC ST Act.
Apart from the above adverse cases, the grounds of detention refer to an incident dated 31.10.2004, wherein one Baskaran was killed by 8 persons, including the detenu. There is also reference to another offence under Sections 147, 148, 332, 294(b) and 307 IPC relating to an incident dated 3.11.2004, while the police were trying to apprehend the detenu in connection with the incident dated 31.10.2004. In the grounds of detention it has been indicated that by committing a daring murder in a broad day-light on getting contract amount for committing the murder, and subsequently committing murderous assault on Police Officers, who had gone to the hiding place of the detenu to apprehend him, the detenu has created an alarm and a feeling of insecurity in the minds of public in that area and acted in a manner prejudicial to the maintenance of public order, and accordingly the order of detention has been passed.
3. In course of hearing, it has been contended that the last adverse case, namely, Crime No.117 of 2002, was allegedly committed two years prior to the ground case and it cannot be said that the detenu was a Goonda or a habitual offender as contemplated under Section 2(f) of Act 14 of 1982. In support of the aforesaid contention, learned counsel for the detenu has placed reliance upon the decision of this Court reported in 2004-2-L.W.(Crl.)717 (MURUGAN @ SENTHILVEL @ KUMAR v. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KANYAKUMARI DISTRICT AT NAGERCOIL AND ANOTHER).
4. We have carefully perused the aforesaid reported decision and we do not think the ratio of the said decision is applicable to the present case. In the reported decision, two adverse cases were in 1998 and the ground case was committed after about 5 years in May, 2003. In such circumstances, the Division Bench is of the opinion that it could not be said that the person was a habitual offender coming within the scope of Act 14 of 1982.
5. In the present case, apart from three adverse cases, which had occurred during the years 1996, 1998 and 2002, two other incidents relied upon by the detaining authority had occurred in October, 2004 and soon thereafter in November, 2004. In such circumstances, it cannot be said that there was no livelink between the latter two incidents and the earlier incidents. The subjective satisfaction reached by the detaining authority on this aspect cannot be considered as without any basis so as to warrant any interference.
6. It is further contended that keeping in view the seriousness of the allegations in the incident dated 31.10.2004 and the subsequent incident dated 3.11.2004, there was no possibility of the detenu being released on bail, and therefore, the order of preventive detention is wholly unwarranted. In support of the aforesaid contention, learned counsel for the detenu has placed reliance upon the decision reported in 2004-2-L.W. (Crl.) 681 (AMEER v. THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT AND ANOTHER).
7. In the aforesaid decision, relying upon two earlier decisions, it was observed that when the crime is more grave in nature, there is no imminent possibility of the accused being released on bail, and therefore, the order of detention based on such conclusion is vitiated for non-application of mind.
8. The question as to whether a person who is in connection with some crime is likely to be released on bail is a matter to be considered by the detaining authority depending upon the facts and circumstances of a particular case and no universal rule of law can be laid down. If, upon considering all the relevant facts and circumstances of the case including the seriousness of the allegations and the background, the detaining authority comes to a subjective satisfaction that there is imminent possibility of the detenu being released on bail and there is possibility of his acting in a manner prejudicial to the maintenance of public order, the detaining authority is empowered to pass an order of preventive detention. The High Court in such matters is required to find out whether the detaining authority is alive to the relevant facts and circumstances and if the detaining authority taking into account the relevant facts and circumstances comes to a particular conclusion, it is not for the High Court to interfere with the subjective satisfaction of the detaining authority. In the reported decision, the Division Bench has observed that there has been non-application of mind while considering such aspect. In the present case, we do not consider that there is non-application of mind on the part of the detaining authority on this aspect. The detaining authority after referring to the relevant facts and circumstances of the case has come to a conclusion that there is imminent possibility of the detenu being released on bail. Therefore, the contention of the counsel for the detenu is not sustainable.
9. In paragraph 7 of the affidavit filed in support of the Habeas Corpus Petition, it has been contended that there is non-application of mind by the detaining authority as it has been indicated as if Accused No.1 in the ground case dated 31.10.2004 had hired other accused to commit the murder, whereas the prosecution case is that such murder was committed by Accused No.1 and his friends or associates as retaliation. Learned counsel for the petitioner has stated that this shows non-application of mind, and therefore, the order of detention should be quashed. For the aforesaid purpose, he has placed reliance upon the decision reported in 2005 M.L.J.(Crl.) 46 (VIJAYAN v. THE COMMISSIONER OF POLICE, GREATHER CHENNAI, EGMORE, CHENNAI AND ANOTHER).
10. We have carefully perused the aforesaid decision. In the reported case, the order of detention indicated as if the detaining authority had perused the statement of one Sureshkumar alias Suresh, whereas, admittedly, no such statement had been recorded. Emphasising the aforesaid fact, it was observed that there was non-application of mind on the part of the detaining authority. We do not think that the ratio of the aforesaid decision can be made applicable to the present case.
11. The basic fact is not whether the detenu was a hired for the purpose of committing the murder or has participated in the murder as a friend of the principal accused, namely, Accused No.1, in the case. Therefore, even assuming that there is some discrepancy, we do not think such minor discrepancy has the effect of vitiating the order of detention.
12. The last contention raised by the counsel for the petitioner relates to the question of delay in disposal of the representation. From the materials available on record, we find representation which was received on 7.1.2005 has been disposed of on 25.1.2005 and has been served on the detenu on 28.1.2005. Materials on record do not indicate any significant delay in dealing with the representation from stage to stage. In such view of the matter, the contention of the detenu is unacceptable.
13. For the aforesaid reasons, we do not find any merit in this Habeas Corpus Petition, which is accordingly rejected.
(P.K.M.,J) (AR.R.,J) 27-04-2005 Index : Yes / No Internet: Yes / No dpk To
1. The Secretary to Government, Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai 600 009.
2. The District Magistrate and District Collector, Collectorate Buildings, Virudhunagar Town & District.
3. The Inspector of Police, Sivakasi Town P.S., Virudhunagar District.
4. The Superintendent, Special Sub Jail, Poonamallee, Chennai.
5. The Addl. Public Prosecutor, Madurai.
P.K. MISRA, J and AR. RAMALINGAM, J ORDER IN HCP(MD)No.28/05 27-04-2005