Madras High Court
Sakunthala vs State Represented By on 28 July, 2006
Author: M.Chockalingam
Bench: M.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/07/2006 CORAM: THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE M.E.N.PATRUDU HABEAS CORPUS PETITION (MD) No.3 OF 2006 Sakunthala ... Petitioner vs. 1.State represented by The Commissioner of Police, Madurai City, Madurai District. 2.The Secretary, Government of Tamil Nadu, Prohibition and Excise Department, Fort Saint George, Chennai - 9. ... Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India as stated therein. !For petitioner .... Mr.V.Kathirvelu ^For respondents .... Mr.Senthoor Pandian Additional Public Prosecutor :ORDER
M.E.N.PATRUDU,J 1.00 Parties:
1.01 DOG RAVI is the pet name of the detenu though his real name is Ravikumar.
1.02 It is stated before us that like Gabbar Singh in SHOLAY and Mugambo in Mr. India, he too claims as terror in Tamil Nadu, more particularly in Southern Districts of the State.
1.03 His mother is the petitioner herein. She is challenging the legality and correctness of the order of detention.
1.04 The first respondent is the State represented by the Commissioner of Police, Madurai City and the second respondent is the Secretary of the Government of Tamil Nadu.
2.00 Counsel
2.01 Sri. V.Kathirvelu, learned advocate argued for the petitioner.
2.02 The learned Additional Public Prosecutor appeared on behalf of the respondent.
3.00 Facts:
3.01 The first respondent has passed the detention order on 13.9.2005 and the same was served on the detenu on the next day i.e. 14.9.2005. The detention order runs into 10 pages disclosing the ground case, adverse cases and the prejudicial activities of the detenu and the reasons for his preventive detention.
GROUNDS OF DETENTION:-
3.02 (A) Ground Case:
It is stated that on 17.8.2005 at about 9.00 hrs., the detenu demanded money from the victim Subramani for his expenses and when the victim questioned the detenu, he introduced himself as popular rowdy of Ellis Nagar and he is involved in number of murder and robbery cases and the victim should know this. When the victim did not pay money, the detenu took out a knife and threatened to stab the victim and thereafter, robbed Rs.3,500/- from his pocket. When the victim raised alarm, neighbors went there and immediately the detenu waived the knife threatening the public saying that he would stab them and pull out their intestines if any one dares to come closer, resulting panic in the minds of the public making the men and women to run on the roads due to fear and the traffic came to a standstill and the business establishments have to bring down the shutters.
After the detenu left the place the victim preferred a police complaint, which was registered as Crime No.1865 of 2005 in B.16, Anna Nagar Police Station for offences under Section 392 and 397 IPC and investigation has been commenced and the detenu was arrested and the booty was seized and he was produced before the Judicial Magistrate and was remanded to judicial custody and the remand is being extended from time to time.
3.03 Adverse cases:
The order of detention discloses that the detenu was involved in three adverse cases, which are-
(i) Crime No.290/2001 for offences u/s.302, 380, 449, 396, 397, 109 IPC wherein the detenu along with others committed dacoity and robbed Rs.20,000/-
and 33 sovereign gold jewels from the house of the victim Susila Devi after murdering her.
(ii) Crime No.424 of 2001 of B.14 Sellur Police Station for offences under Section 307, 224, 332 and 224 IPC and the allegations are that the detenu assaulted the head constable and caused injury on his right rib.
(iii) crime No.847/2004 for Criminal conspiracy and the murder of former Law Minister of Tamil Nadu by name Aladi Aruna.
Other Grounds:
3.04 The detention order reveals that the detenu was granted bail in the earlier adverse cases but not in the ground case and bail application was filed and was dismissed. The detaining authority observed that if the detenu comes out on bail, he will indulge in future criminal activities which are prejudicial to the maintenance of public order.
3.05 Subjective satisfaction of the detention authority has been mentioned in para 7 of the detention order by stating that the perusal of documents, it is established that the activities of detenu are prejudicial to the maintenance of public order as such he is detained as goonda. It is clearly stated that he has committed crimes in the public places, in busy localities creating alarm and insecurity in the minds of the people and thereby the public order is at stake.
3.06 All the other mandatory procedural requirements are noted in the detention order and it is unnecessary for us to reproduce.
4.00 On receipt of detention order, representation is made and it was rejected, resulting the Writ of Habeas Corpus.
Grounds of writ:
4.01 The detention is illegal and improper as proper procedure is not followed by the detaining authority.
4.02 Material documents are not perused by the detaining authority.
4.03 The sponsoring authority has not placed all material documents before the detaining authority.
4.04 No public order has been affected.
4.05 There is no subjective satisfaction.
4.06 Material Documents are not furnished to detenu.
4.07 Since contents of paragraphs 6 and 7 are repeated in paragraphs 8, it amounts to non-application of mind.
4.08 Observation that there is possibility for the detenu to come out on bail is non-application of mind.
4.09 The telegram of Vijayaraghavan is not considered and copy of the telegram is not served on the detenu.
4.10 There is delay in considering the representation of the petitioner.
5.00 Discussion 5.01 Before we proceed to discuss in detail on the merits and demerits of the detention, we would like to focus our attention on the law of preventive justice and the legal principles emerging there from since settled by the Apex Court in similar cases in order to apply in this case.
BACKGROUND HISTORY 5.02 Detention laws in India have their roots since British days. When India got independence, an opportunity to taste the freedom has come and it was nothing but natural that all the natural rights, human rights, legal rights, which were denied to our citizen for long by the British monorch are restored through our Constitution. However, framers of our constitution thought fit that the preventive legislation to be continued under the constitution subject to certain safeguards laid down therein.
5.03 Inclusion of the provision for preventive detention was justified by the founding fathers of the Indian Constitution on the ground of safe guarding the hard earned freedom of the country which could be jeopardised by the anti- national and anti-social elements.
5.04 Reading of the Constituent Assembly debates discloses that there was detailed deliberations on the subject and our great freedom fighters and the prominent leaders including Pandit Jawaharlal Nehru, Sardar Vallabhai Patel and Dr.B.R.Ambedkar thought that the preventive justice is necessary though they themselves had suffered with the legislation by abuse and misuse of power in pre-independence days.
5.05 The Preventive Detention Act 1950 came into force to curb violence and terrorists activities for the welfare of the people at large. It is therefore evident that for the sake of freedom of an alleged culprit the peace of millions of innocent citizens can not be made to sufferer.
OBJECTIVE:
5.06 The preventive justice consists in restraining a man from committing a crime which he may commit but has not yet committed. The preventive detention is a precautionary measure and its object is not to punish a man but to prevent him from disturbing the public peace. It is an anticipatory action. In the case of preventive detention, there are inbuilt natural justice in the relevant act and in the Constitutional provision.
5.07 The basis of detention is satisfaction of the executive of the reasonable probability or prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances. In other words, likelihood of the detenu acting in a manner similarly to his past acts may satisfy the detaining authority by detention from doing the same. Thus, the detention must be preventive and not punitive. It is well recognised that prevention is better than cure and the real enforcing is prevention than detection after the act is committed.
5.08 Constitutional Provision:
Article 22 of the Constitution deals with protection against arrest and detention.
Article 22(5) deals with preventive detention and reads as follows: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
5.09 The object of the framers of the constitution in giving constitutional status to the preventive detention is to prevent anti-social and subversive elements from imperiling the welfare of the republic. The Constituent Assembly after elaborate dialogue recognized the necessities to make laws for preventive detention by providing certain safeguards to mitigate their harshness placing fetters on the legislative power conferred on the subject.
5.10 JUDICIAL REVIEW:
In A.K.Gopalan v. State of Madras (1) The landmark judgement of the Apex Court says in a case of preventive detention, the procedure prescribed by the law must be strictly follows, if it is not done, a person detained is entitled to be released by the Court. It is the guiding principle.
In A.K.Roy vs. Union of India(2) It has been clearly observed that it is not necessary either to state or establish an actual breach of public order. It is the past conduct of the detenu and the antecedents, form the basis for an order of detention. However, the order, the detention authority must justify the detention. A criminal proceeding and preventive detention are not parallel proceedings as the former is to punish a person for an offence committed and the later is an anticipatory measure and it may not relate to any offence.
In Hardhan Saha vs. State of W.B. (3) It is clearly held that a pendency of a prosecution is no _________________________________________________________________
1. 1950 SCR 88: AIR 1950 SC 27
2. AIR 1982 SC 710
2. AIR 1974 SC 2154 bar to an order of preventive detention nor is an order of preventive detention a bar to prosecution and it is also observed that the order of preventive detention may be made relying on the same facts on which the prosecution may be or may have been launched.
In Samir Chatterjee v. State of W.B. (1) It is clearly observed that it is for the detaining authority to determine, in his subjective satisfaction, whether, there are sufficient materials to place the person under preventive detention in order to prevent him from action in a manner prejudicial to public order or the like in future.
5.11 The ambit of the Court's jurisdiction are dealt in detail by the Honourable Supreme Court in catena of decisions and we thought fit to note them once again for educating ourselves and refreshing our memory to follow in future and for ever.
5.12 The dictum of the Apex Court from the inception till date is that the Court may examine the grounds mentioned in the order of detention, to note whether they are relevant to the circumstances under which preventive detention could be supported. For example maintenance of public order. It is further observed that it is not necessary to establish that there has been actual breach of the peace or danger to the security of the State or the like caused by the activities of the detenu. It is enough if the conduct and antecedents of the person concerned reveal a tendency to do an act prejudicial to the public order or the like and the detenu had previously committed grave offences punishable under law, it is sufficient to detain. It is also held that the Court may examine the ground whether the order is based on material or whether the grounds supplied have relevant connection with the order.
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1. AIR 1975 SC 1165 5.13 The Supreme court clarified that the Court would not undertake an investigation in this connection as to the sufficiency of the materials on which the satisfaction of the detaining authority was grounded. It would examine the bona fides of the order and interfere if it is mala fide, that is to say, if the law of preventive detention was used for any purpose other than that they which it was made. The Court may also have to examine the grounds communicated to the detenu in order to see whether they are sufficient to enable him to make an effective representation and the sufficiency in the sense whether it would give reasonable satisfaction to the detenu for making meaningful representation.
5.14 The Supreme Court has also held that whether the statutory condition precedent that is the requisite subjective satisfaction was really formed with due care and caution before making the order.
5.15 The Court would strike down the detention order where the authority has not applied its mind at all to the materials or has acted under the dictation of some other person or where he has applied a wrong test or misconstrued the statute or relied upon on grounds or materials which are extraneous of the scope or purpose of the statute or have no rationally probative value in forming the subjective satisfaction or the power is applied for a dishonest or improper purpose.
5.16 The Most memorable findings of Hon'ble Justice P.N.Bhagwati in- Khudiram Das vs. State of West Bengal (1) are land mark and still hold the field and with great respect we follow the same.
The Supreme Court clearly observed that in Habeas Corpus proceeding, what has to be considered by the Court is-
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1. AIR 1975 SC 550
(i) whether the detention is prima facie legal or not,
(ii) whether the detaining authority has properly reached the satisfaction on question of fact,
(iii)whether the authority acted with bona fide intention or whether there are any mala fides in issuing the order.
(iv) If an order of detention is malafide and if it is made for a clear "collateral" of "ulterior" purpose i.e., a purpose other than what the legislature had in view in passing the law of preventive detention, i.e. prevention of acts prejudicial to the maintenance of public order and the security of the State, then the Court is to necessarily interfere.
5.17 In Additional Secy, Govt. of India Vs. Alka(1) The Apex Court clarified that in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not correct mere errors of law or facts. Discretionary jurisdiction is not permitted as an alternative remedy for relief. The Court does not, by exercising writ jurisdiction, permit the machinery created by the statute to be bye passed. The Court does not generally enter upon the determination of questions which demand an elaborate examination of evidence.The Court does not interfere on the merits that the determination of issues passed by the authority vested with statutory power particularly when they are related to matters calling for expertise. 5.18. In K.M.Agarwal's case it has been clearly held that the Court can not interfere if there is some evidence before the detaining authority, upon which a reasonable man could have formed the satisfaction which is the sine qua non for the detention.
5.19 Similarly the Supreme Court has clearly observed in Alkos case, what the Court generally do when the order of preventive detention is challenged. It is held that the Court would interfere.
i) where the authority acting under a concerned law, does ________________________________________________________________
1. 1992 Supp.(1)SCC 496 not have the requisite authority,
ii) the order passed is not warranted or is not is in breach of the provisions of the concerned law.
iii) Where the authority has misuesed his powers,
iv) where authority has not applied its mind,
vi) where an authority excised his power, dishonestly or improper purpose. 5.20 S.K.Jainal Vs. District Magistrate (1) It is also observed that the onus of proving mala fide is upon the detenue. The order of detention is usually not treated as malafide, merely because a criminal prosecution is pending at the time of order of detention has been passed after he is discharged in a criminal case or on one single instance or the offence is of trivial in nature or on the wrong facts placed before the authorities or the action of police is mala fide or he will come out on bail. Since the detaining authority has to apply his mind and pass order in all those issue that can not be treated as mala fide. The general rule is if the order is found to be bona fide and when the order of detention is referred to the past activities of the detenu as giving right to the satisfaction of the detaining authority, the Court can not enquire in to the reasonableness of the subjective satisfaction of the detaining authority.
6.00 ARGUMENTS 6.01In this case the arguments of the counsel for the petitioner can be summarised under three categories;
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1. AIR 1975 SCC 229 (1) Whether the alleged activities of the detenu are affecting the public order. (2) Whether there is subjective satisfaction of the detaining authority. (3) Whether there is delay in considering the representation.
7.00 Points:-
7.01 Point No.1 :
PUBLIC ORDER:
(A) In Central Prison, Fatehgarh Vs. Ram Manohar Lohia(1) It is held that the public order is synonymous with public peace and safety and tranquillity.
(B) Hon'ble Justice.Hidaytullah, in Ram Manohar Vs. State of Bihar (2) observed;
"Public Order if disturbed must lead to public disorder.... two drunkards quarrelled and fought and it is disorder but not public disorder. They can be dealt with under the powers to maintain law and order, but cannot be detained on the ground that they are disturbing the public order. But if a person create panic in the public place, the contravention of law always affect order but before it can be said to affect public order, it must affect the community or the public at large. The concept of law and order is not identical with the concept of public order. The public order is an aggravate form of disturbance of public peace, if affects the general current of public life. The difference between the public order and law and order is a matter of degree. If the morale of people is shaken by making them to lose their faith in the functioning of the State, and cannot maintain the public order and it is disturbance of public order. Any attempt or action which under mind the public faith affects the maintenance of public order and such act is prejudicial. "
----------------------------------------------------------------------------- (1) 1960 SCC 633, (2) AIR 1966 SCC 740 (C) The expression of law and order is wider in scope in as much as contravention of laws always affects the law and order while public order is a narrow ambit and public order would be effected by only such contravention which affects the community or the public at large. The disturbance of the public order is the tempo of life of the community taking the country as a whole or even the specified locality. The distinction between the areas of public order and law and order is one of degree to the extent how the Act in question is reaching the society. It is the potentiality of the act to disturb the tempo of life of community which makes it prejudicial to the maintenance of public order. It is the length, the magnitude and the anxiety of the terror wave unleashed by a particular eruption of disorder affecting the public order distinguishing from that of law and order.
(D) The question to ask is, does it lead to disturbance of lives of the community so as to amount to disturbance of the peace of the locality, or does it affect one individual living.
(E) Harpreet Kaur Harvinder Singh Bedi Vs. State of Maharastra, (1) It is observed as follows, " Crime is a revolt against the whole society and an attack on the civilisation of the day. Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community.
The distinction between breach of 'law and order and disturbance of 'public order'; is the degree and the extent of reach of the activity in question upon the society. In their essential quality, the activities which affect ' law and order' and those which disturb 'public order' may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference.
In each case, therefore, the courts have to see the length, magnitude
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(1)AIR 1992 SCC 979 and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of 'public order' or only 'law and order'."
"If the society, and not only an individual, suffers on account of the questionable activities of a person, those activities are prejudicial on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of 'public order' and are not merely prejudicial to the maintenance of ' law and order'."
(F) Husan Khan RH Mendoca,(1) It has been held that the fall out a extent and reach of the illegal activities must be of such a nature that they travelled beyond of the capacity of the ordinary law to deal with him to prevent his objectionable activities affecting the community at large or a large section of the society and it is the degree of disturbance and its impact upon the even tempo of life of the society or the people of the locality which determines whether the disturbance caused such activities means only the breach of law and order and it amounts to breach of public orders.
7.02 Point:2 Subjective Satisfaction:
(A) The order of detention must be decided on the basis, what has come to be known as subjective satisfaction of the detaining authority. Such subjective satisfaction has to be arrived mainly on two points:
1) on the veracity of the facts imputed to the person to be detained
2) The specific findings of the detaining authority that the person concerned is likely to indulge in the same kind a nefarious activities.
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(1)AIR 2000 SCC 1146 (B) Of course, the second point depends on the first, but the subjectiveness is higher as regards the second point. The detaining authority, which has to form an opinion of the veracity of facts has take into account all the facts, those in favour of the person concerned. The approach of the detaining authority should disclose that he has effectively engaged himself into such an exercise.
(C) Observations of Honourable Justice P.N.BAGHVATHI in Khudiram Das case(1) are notable in the filed of subjective satisfaction. His lordship held that the following are to be verified.
a) Whether authority has not applied his mind at all;
b) There may be a case where the power is exercised dishonestly or for a improper purpose;
c) Satisfaction must be the satisfaction of the authority itself;
d) Whether the authority has disabled from applying his mind from the facts of each individual case by creating rules of policy or any other manner;
e) Whether the satisfaction is based on the application of wrong test or the misconstruction of the statute;
f) Whether the satisfaction is grounded on materials which are probative value;
i) All the above can be examined by testing the application of mind.
(D) Application of mind:
There is nothing more dynamic in nature than mind and more its application. Various factors make persons to apply mind so also absence of application of mind according to failure of human mind possess reasoning faculty. This means 2+2 = 4 and never 5. The detaining authority invested with such absolute power, is expected to exercise that application of mind
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(1) 1975 Cri.L.J 446 Some of the examples of non application of mind are;
(i) non consideration of the memorandum or the representation
(ii)non- recital of the facts;
(iii)noting uncorrected fact
(iv)passing mechanical order
(v)detention without discussing and disclosing the reasons,
(vi)non consideration of record,
(vii)casual approach,
(viii)considering irrelevant material,
(ix)non consideration of facts on bail,
(x)considering erroneous information,
(xi)passing imaginative order
(xii)giving colourable devise
(xiii)the jurisdictional error.
(E)The learned counsel for the petitioner has relied on the following judgment of this Court while canvassing the point that there is non-application of mind;
S.Sebastin Vs. State of Tamil Nadu and others,(1) This Court held that the detaining authority and the State Government are aware of the fact that the detenu is in jail as a remand prisoner and he is eligible for bail and he had not filed any bail application and no bail petition was pending on the date of the passing of the detention order and under such circumstances it is not justified in arriving at a conclusion that there is imminent possibility of releasing detenu on bail in absence of any relevant material. The bail application was neither filed nor pending by the date of detention. Hence, we suppose the observation that detenu will be coming out on bail is without any material before the authorities and it is without any subjective satisfaction.
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(1)2006 Crl.L.J. 947, (Madras High Court) (F) With profound respect to the Honourable Judges, we are unable to agree with the above findings.
(G) In our considered opinion, the observations of the detaining authority that there is possibility of release of detenu is recorded only after application of mind; Without any hesitation we hold that if such observation is recorded it is not a case of non application of mind and on the other it is nothing but application of mind; The detaining authority, after noting the fact in the case that the detenu is in judicial remand observed that there is possibility of his getting bail; This observation is made after applying the mind. It is not a mechanical observation.
(H) In this type of observation, the application of mind is to be categorised as follows:
(a) The detenu is in judicial remand. He has legal right to file bail petition. No one can deny this right of prisoner. The Judicial authority may grant bail or reject bail, but the right of accused to file bail petition cannot be questioned; Further he can file any number of petitions as he chooses: There is possibility for refusal of bail or for grant of bail: The detention authority noted the same possibility.
(b)Further statutory bail is provided u/s 167 Cr.P.C. If charge sheet is not filed within the time limit then the detenu will get bail as it is mandatory. When the detaining authority made an observation that there is possibility of releasing him on bail, it is made after application of mind:
(c) According to us, filing of bail petition or non filing of bail petition by the date of the detention is immaterial The detenu may not file bail petition by the date of the detention. But can the Court or any authority or any body restrain the detenu from not filing bail petition in future. He has every right to file bail:
(d) Therefore we are unable to agree with the view expressed in the above judgment.
(e) Apart from that, the judicial authority after applying judicial discretion can grant bail to detenu. The superior Court alone can interfere if the grant of bail is bad in law. When the remand prisoner is in judicial remand, and if the remand is not extended after 15 days for any valid reason, the prisoner will automatically get bail even without filing any bail petition. Once if the bail is granted and sureties are produced, the detenu can come out of the jail.
(f) Therefore there are many possibilities for the release of detenu in a criminal case and when the said fact is noted by the detaining authority, it is nothing but application of mind and we will be unjustified if we treat it as non application of mind.
(g) In this regard, it is necessary for us to note some of the observations of the Apex Court and the Full Bench of our Court.
(I) The full bench of this Court in K.Thirupathi Vs. District Magistrate, Thiruchirapalli,(1) It is held that the strict insistence of the usage of word "imminent" is not necessary and expressions like real possibilities, very likely or most likely can be used by the detaining authority to reflect his caution with regard to the immediate release of the detenu on bail.
Therefore, the Full Bench of this Court clearly observed that expressions like real possibility or very likely or most likely, can be used by the detaining authority with regard to the future release of the detenu on bail and it is subjective satisfaction and it is after application of mind.
This judgment on the point being delivered by full bench of this Court must be respected and followed.
(J) His right to file cannot be curtailed. Therefore, the word used 'real possibility' is, subjective satisfaction of the detaining authority by application of mind.
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(1) 2005 Crl.L.J. 4384, (K) In this regard, in our considered opinion whenever the detaining authority is making any observation by giving reasons, it is nothing but an application of mind. If the reasoning is not bonafide and if it is malafide, then the Court can struck down.
(L) The burden is on detenu to prove malafide intention of authority.
(M) When the detaining authority noted in its detention order that the detenu is in judicial custody, even though the detenu has not filed any bail application but has right to file a bail application and it cannot be ruled out hence there is possibility of his coming out on bail, and this observation in our considered opinion is by applying its mind.
(N) Every prisoner whether he is under trial, or whether his case is under investigation or even if he is convicted, he has every right to approach the court of law and file a bail application or suspension of sentence and can represent to the court for grant of bail. This is a constitutional right of the accused person to seek bail and it cannot be curtailed. It is for the judicial authority to apply its judicial mind and judicial discretion, whether to grant bail or reject bail. When a fact that the detenu is in judicial remand or is in jail is noted it is sufficient to hod that the detaining authority has applied its mind and made an observation that the detenu can move a bail application and there is possibility to come out on bail. There is no necessity for the detaining authority to verify any other record such as remand report, the case diary of the investigating agency or the charge sheet or statements of witnesses or the bail petition of the prisoner. The detaining authority has no role to play in the judicial remand or in the case of bail. It is for the judicial authority to decide.
(O) Therefore, we would like to clarify that according to us the mere knowledge of the detaining authority that the detenu is in judicial custody is a sufficient material to hold that the detenu can pray for bail and there is possibility to come out on bail.
(P) When the detaining authority has observed that in case the detenu comes out on bail, it is prejudicial to the maintenance of public order that itself is sufficient to hold that the detaining authority has applied its mind and after subjective satisfaction he made an observation and there is sufficient material in this regard. However we would like to clarify that the detaining authority should not use the word 'imminent' as it is not a proper expression:
But by using this expression, it is not a case of non application of mind: it is a case of application of mind by using improper expression (Q) The latest judgment of the Hon'ble Supreme Court of India in T.V.Saravanan @ S.A.R.Prasana Venkatachaariar Chaturvedi Vs. State through Secreatary and another(1) It is held as follows
(i) In the above case, the detenu had moved an application for bail before the Principal Sessions Court, on 17.11.2004 which was rejected and another application was moved before the High Court which was withdrawn on 03.12.2004.
While so the order of detention was passed on 15.12.2004 that is in twelve days from the date of the dismissal of the bail application by the High Court, Hence, it is observed that " The detaining authority noticed that the appellant had not moved any bail application subsequently i.e., within 12 days, but it went on to state that there was imminent possibility of the appellant coming out on bail.
Their Lordships further observed that " There is nothing on record to show that the appellant had made any preparation for filing a bail application, or that another bail application had actually been filed by him which is likely to come up for hearing in due course."
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(1) 2006 (1)SCC (Cri) 593 In the above Judgment their Lords are pleased to observe that there was no cogent material before the detaining authority, on the basis of which the detaining authority could satisfy that the detenu may likely to be released immediately on bail. It was observed that "the 'imminent possibility' of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention.
(R) Therefore, the latest ruling of Hon'ble Supreme Court of India clarifies that if there is any material available with regard to satisfy that the detenu was likely to be released on bail, then the detaining authority is justified in arriving to such conclusion.
In such circumstances, We do not find any illegality in making an observation by detaining authority that there is real possibility for the detenu to come out on bail in the ground cases, which is registered under Section 307, 506(ii) of IPC, which is lesser offence than that of the murder. When the detenu was able to secure bail in serious case of murder, which are the adverse cases, there is real possibility for the detenu to obtain bail in the ground case, as it is alleged under Section 307 IPC. Therefore, there is sufficient material before the detaining authority to make an observation and as observed by the Hon'ble Supreme Court of India, in the latest judgment that the detaining authority has to draw the inference from the available material on record and it is not merely ipse dixit statement.
(S) Further, In Kamarunnissa Vs. Union of India,(1) It is observed that
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(1)1991 SCC (Cri) 88, "From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody;
(2) if he has reason to believe on the basis of reliable material placed before him
(a) that there is a real possibility of his being released on bail, and
(b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher court."
(T) In the above circumstances, it is not necessary for us to refer any other decisions of this Court cited before us by the counsel for the petitioner, because the principles advanced and held by the Hon'ble Supreme Court of India for peaceful society has to be applied to the facts and circumstances of each case and in fact the said principles are well settled and with respect we are following.
The Apex Court has clearly held that in the preventive justice the principles are well settled and all that has to be seen by the Court is whether in the facts and circumstances of each case, the test laid down by the Supreme Court of India ought to be applied or not.
The Court has to seriously go into the facts and circumstances of issues involved each case, on various vital points as highlighted by the Supreme Court of India, on preventive justice and must arrive at just decision.
(U) M.C.Metha Vs. Union of India(1) is the latest landmark judgment from the heart and brain of the Honourable Chief Justice of India, Justice.Y.K.SABHARWAL, wherein it was observed that the " This Court has a constitutional duty to protect the fundamental rights of Indian citizens. What happens when violators and/or abettors of the violations are those, who have been entrusted by law with a duty to protect these rights? The task becomes difficult and also requires urgent intervention by Court so that the rule of law is preserved and people may not lose faith in it, finding violations at the hands of supposed implementers. The problem is not of the absence of law, but of its implementation.
Despite passing of the laws and repeated orders of the High Court and this Court, the enforcement of the laws and the implementations of the orders are utterly lacking. If the laws are not enforced and the orders of the Courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, therefore, necessary to also
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(1) 2006(3) SCC 399 identify and take appropriate action against officers responsible for this state of affairs.
Similar would also be the accountability of errant officers as well since, prima facie, such large-scale misuser, in violation of laws, cannot take place without the active connivance of the officers. It would be for the officers to show what effective steps were taken to stop the misuser." (V) In Union of India and another Vs. Chaya Ghoshal and antoher,(1) Honourable Justice.Arijit Pasayat made great research on the point of preventive detention and it is necessary for us to reproduce some of the enlightening and illuminating paragraphs;
" While dealing with a habeas corpus application, undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings, the court has to take serious note of unclean approach. ....He really the citizen concerned genuinely and honestly felt or is interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the really concerned authorities and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief on his own manipulated ground.
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(1) 2006(1) SCC (Cri) 257 Where, however, a person alleging infraction of personal liberty tries to act in a manner which is more aimed at deflecting the course of justice than for protection of his personal right, the court has to make a deliberate balancing of the fact situation to ensure that the mere factum of some delay alone s not made use of to grant relief. If a fraud has been practised or perpetrated,t hat may in a given case nullify the cherished goal of protecting personal liberty, which obligated this court to devise guidelines to ensure such protection by balancing individual rights and the interest of the nation as well.
Residual question is whether there was unusual delay in disposing of the representation and whether the Central Government had not applied its mind to the representation independently. The High Court has again failed to notice that materials on record clearly show that there was independent application of mind by the Central Government. It did not reject the representation merely on the ground that the detaining authority had rejected it. The order of rejection itself makes this position clear. From the details which were submitted before the High Court it appears that there were two representations, each addressed to the detaining authority and the Central Government, which were considered and rejected.
The representation should be received by a person authorised to receive it. The detaining authority or the authority concerned of the Central Government may have authorised some members of the staff to receive representation or any official document. If the representation is handedover to or served on a person who is not authorised to receive it the authority concerned cannot be held responsible if any delay is occasioned on account of inaction by such unauthorised person. If any dispute is raised about the authority of the person to whom the representation is claimed to have been handed over or served, the person making the representation on behalf of the detenu or the detenu, as the case may be, has to establish as to on whom the service was effected and he had authority to receive the document in question."
(W) Hence, in the above circumstances, it is not necessary for us to refer the other two judgment of this Court reported in 2006 (1) TNLR 197, 2005 (2) CTC 48 etc, cited before us. It is strange to note that local bar is mainly relying on the judgments of this Court and ignoring the Apex Court judgments and also not placing the latest rulings of Apex Court. How ever they made us to search for just decision though it is tiresome but we are glad that as justice is our destiny and being custodian of justice we should always be diligent to maintain the confidence of people on one hand and to administer the justice by upholding rule of law on the other.
(X) The contention raised on behalf of the petitioner is that there is no subjective satisfaction of the detaining authority and without applying the mind the detention order is passed, is meritless. If a particular sentence is repeated in the order, it is not a non application of mind. If a particular sentence is repeated in the other, Except making bald and sweeping statement, the petitioner could not point out even one single and acceptable proof that there is non-application of mind, hence we reject the same. 7.03 Point 3 Delay:-
a. The last contention raised by the learned counsel for the petitioner is that there is delay in considering the representation of the petitioner.
(b) In the Government of the State the file has to move from one place to another and it is not a domestic affair to directly put the file before the higher authority. The field reality cannot be ignored. There will be normal delay in our day to day life. For example, if a party approach an advocate to file a case before a court of law, it is not possible for the counsel to prepare the pleadings immediately and file the case forthwith. He has to take necessary instructions and he has to peruse the relevant documents and he has to form an opinion and then only the counsel could prepare the pleadings and dictate the same and it has to be typed and after finalising, and after obtaining the copies of every document to be filed in the court and after complying with all other formalities the proceedings will be initiated in the court of law and this process undoubtedly will consume some time. If this process is also commented as delay, in our considered opinion nothing can move in this world.
(c) Similarly in the Court of law there are procedural formalities for checking the proceedings and in that process there shall be usual delay at each stage from the time of filing the case till its disposal and if it is argued that it amounts to delay and it is fatal, then all of us must be supplied with magic lamp of Allauddin to deliver the result on the spot.
d. In this regard the observation of Hon'ble Justice Thomas, of apex Court are noteworthy.
In Rajammal v. State of Tamil Nadu and another It has been held that-
"8. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words "as soon as may be" in clause, (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly
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(1)AIR 1999 SCC 684 consider whether the delay was occasioned due to permissible reasons or unavoidable causes.
It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.
The position, therefore, now is 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 other words, it is for the authority concerned to explain delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned."
e. On the point of delay, the learned counsel has relied on the decisions of this Court, in Latha Vs. The Secretary to the Government,(1) It is observed that when the Minister has passed an order on 07.04.2005, the rejection letter was prepared only on 18.04.2005 and though there was holidays on 09.04.2005, 10.04.2005, 14.04.2005, 16.04.2005 and 17.04.2005, the Division Bench of this Court held that there are five more working days even if five days are excluded and thus that explanation is unacceptable.
f. With respect we are differing from the above observation, as we wanted to follow the judgments of the Hon'ble Supreme Court of India, on this point.
g. In the latest Judgment of the Hon'ble Supreme Court of India in A.Maimoona Vs. State of Tamil Nadu and others, (2), It has been held that " the representation made on behalf of the detenu by his mother was submitted in the Ministry of Home Affairs on 4.7.2005 through an advocate. Since it was in Tamil and it could not be deciphered, it was forwarded to the District Magistrate and Collector of Cuddalore District, Tamil Nadu and the Government of Tamil Nadu for getting it translated into English. That was done on 5.7.2005 itself. A reminder was also sent on 13.7.2005. The English translation of the representation was received on 18.7.2005. It was put up
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(1) 2005(4) CTC 17. (Madras) (2) (2006) 1 SCC (Cri) 428 before the Under-Secretary on 19.7.2005. The case of the detenu and the representation were carefully considered and the matter was put up before the Deputy Secretary on 21.7.2005. With the comments of the Deputy Secretary it was put up before the Joint Secretary on 21.7.2005 itself. On the same day it was forwarded to the Special Secretary, Ministry of Home Affairs after being considered by the Joint Secretary. The Special Secretary after consideration of the same put up the matter before the Home Secretary on 22.7.2005. The Home Secretary after considering all the relevant aspects, rejected the representation of the detenu on 22.7.2005. the decision was communicated to the detenu through the Home Secretary, Tamil Nadu and Superintendent, Central Prison, Cuddalore, Tamil Nadu by way of crash wireless message dated 25.7.2005.
In the light of this affidavit, the learned counsel for the appellant argued that there was an unexplained delay from 13.7.2005 to 18.7.2005 in considering the representation.
.. In the circumstances of the case, we find that there is no unexplained delay or undue delay on the part of the Central Government in disposing of the representation made on behalf of the detenu which was handed over to the Ministry only on 4.7.2005. We, therefore, find no merit in the argument raised in this regard on behalf of the appellant.
We do not find any merit in the argument that the order of detention was not justified on the materials available."
In Lilly v. Chief Secretary to Govt. of T.N. and others(1) It has been held that-
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(1) (2006)1 Supreme Court Cases (Cri) 515 "On the ground that there has been inordinate delay in considering the representation made against a detention order, a writ petition was filed before the High Court. The High Court on consideration of the matter is of the view that the representation has been in continuous process and, therefore, there was no delay as such and dismissed the petition. No other point was urged before the High court for consideration. In this appeal against that order it is urged that there has been no due consideration by the High Court of the complaint made by the appellant regarding the delay in consideration of the representation made by him against the detention. On behalf of the State an affidavit has been filed by R.Balakrishnan, Secretary to the Department of Prohibition and Excise department, Government of Tamil Nadu setting out the entire movement of the file pertaining to the appellant before us.
It is stated that the matter has been considered at various levels before the order passed by the authority concerned in rejecting the application. It is stated that the matter had been in active consideration throughout the period in question.
On consideration of the entire matter and on examination of the affidavit filed on behalf of the State, we are satisfied that there has been due consideration of the representation though there has been some small delay but the same had been due to the movement of the file from one authority to the other. In that view of the matter, we see no reason to interfere with the order made by the High Court. The appeal is dismissed accordingly." In Chakravarthy v. State of T.N.(1) It has been held that-
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(1)2006 (1) SCC (Cri) 619 ".. His grievance is that there is no proper explanation of delay from the period from 5.5.2003 to 11.5.2003. The representation admittedly was filed on 24.4.2003. It was processed at various levels and ultimately, the representation was rejected on 22.5.2003. The period of delay from 5th May to 11th May has been explained by the respondent in its counter-affidavit. It is stated that the detaining authority called for remarks from the respondent (sponsoring) authority on 5.5.2003. 10-5-2003 and 11-5-2003 were holidays. The remarks of the sponsoring authority were sent to the detaining authority on 12- 5-2003. Then the detaining authority sent remarks to the Government on 13.5.2003. 15th May was holiday on account fo Milad-Un-Nabi. Thereafter, remarks were received by the Government on 16.5.2003. 17th and 18th May were holidays, being Saturday and Sunday. The file was submitted on 19-5-2003. The Secretary examined the file on 21-5-2003. The Minister for Prohibition and Excise examined the matter on the same day i.e. on 21-5-2003. Representation was rejected on 22-5-2003. it is well settled principle of law that the delay means an unexplained delay. In our view the delay of six days has been well explained."
(h) Their Lordships are pleased to observe that while dealing with the habeas corpus application, undue importance is not to be attached to technicalities and it is further observed that whether there is undue delay in disposing of the representation is to be considered.
(i) Therefore, the Hon'ble Supreme Court of India has clarified, when there is delay whether it is a longer delay or a shorter delay, it must be explained. If there is no delay at all and it is only a procedural aspect to move file from one place to another place, there is no need for explanation of any such delay.
(j) The only fact to be kept in the mind of the Court is whether the delay is intentional; whether the delay is caused on account of indifference or whether the delay is to detain the detenu unnecessarily. Such delay alone can be considered as fatal. If the representation is considered by the higher authorities and even if there is delay in despatching the rejection letter, it cannot be treated as a delay with regard to the consideration of representation. The delay is at clerical level.
(k) The constitutional obligation is that the decision must be taken on the representation of the detenu as soon as possible. When the decision is taken, when the final orders are passed, that is end of the matter. When there is no delay with regard to passing of final orders and even if there is delay in preparation of the rejection letter or despatching of the rejection letter, the delay cannot be attributed to the detaining authority or to the Government, as the delay is caused at the level of clerk and there may be many reasons for the delay and many unethical and questionable factors can cause such delay and any one including the detenu can interfere at that level to cause delay in order to gain later in the Court of law.
(l) When the facts and circumstances of the case, discloses that there is no delay in circulating the file after receiving the representation and when there is no delay with regard to passing of final orders by the Minister, and even if there is a delay with regard to the preparation of the rejection letter or despatching of such letter, the court will be unjustified in quashing the detention for the lapse committed by a clerk in the Secretariat. Responsibility of the State
(m) Before parting with this detenu , we would like to clarify some important requirements to be followed by the officials of the state in case of preventive justice.
The first respondent who is representing the Government of the Tamil Nadu did not choose to file any counter affidavit. The reasons are not known. He is the Secretary to the State; A high official. The counter affidavit on behalf of first respondent would have clarified the points raised on behalf of the detenu and without further verification it would have make the matter more clear at the earliest hearing.
Delay in considering the representation of the detenu was forcefully argued before us. Normally the court expects the first respondent to explain this fact as they are receiving the representation and answering the same; Mere producing a Xerox sheet by filing columns with dates is not counter affidavit. It is a knows fact that the representation is normally being received by the Government in all cases. The Government has to dispose of the said representation expeditiously without any undue delay. If there is delay it must be explained by the Government. The first respondent representing the Government is the best person to do so but he did not file counter. The reasons do not known. Hence, copy of this order is directed to be issued to the Chief Secretary of the State to make necessary enquiries and take suitable action and issue necessary direction to all concerned, so that the Secretaries in the Government will discharge their duties with more diligence in future, in respect of preventive justice.
In Bhutnath Vs. State of West Bengal(1) The Apex Court brings out the necessity of an affidavit being filed by the person concerned himself and the risk involved for not filing the affidavit. The Hon'ble Supreme Court of India has observed that in the exigency of administration, a Officer may be held up far away engrossed in other important work, there being unavailable to swear an affidavit. In such circumstances the best course would then be the oath of other in the Secretariat who has officially participated in the process of consideration of the representation. But this should however with exception and not as a rule or routine. The buracracy.
In Birendra Kumar Rai Vs. Union of India (2) It is observed by the Apex Court that if the Government takes care that the detention case arising under the preventive detention laws are handled by persons fully trained and having experience in such matters, the rights of the Citizens can be safeguarded and the precious time of Court can be save. The authorities are required
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1.AIR 1974 SC 806 2.1993 CRL.L.J. 134 to deal such cases with more care and circumspection. They should not leave such cases with more care and circumspection. They should not leave such cases to be dealt with by the lower officials and should keep track of such cases from beginning to end. This observation of the Hon'ble Supreme Court must be kept in mind of those who are enjoying executive class comforts with star facilities.
(n) In this regard, we would like to clarify that filing affidavit by the Deputy Secretary or some other officials of the lower rank will not suffice. When the Secretary and the Minister has dealt with the file and final orders have been passed by the minister and if there is a delay in any respect including despatching the rejection letter it should be explained by the higher official. In such circumstances, the Court should ask the concerned Secretary to file a detailed affidavit for the lapse committed by the lower individual at the Secretariat level and to verify the reasons for preparing the rejection letter with delay or despatching of the rejection letter, after lapse of time. At the same time, the Chief Secretary must be directed for having necessary disciplinary action against the concerned for the delay, because, we cannot ignore that there may be many factors for causing delay at the clerical level and we cannot point out the finger only at the higher levels either the Secretary or the Minister for this lapse. The Court is not excepted to easy course on this aspect and give benefit to the violators of law. We are the custodians of justice and not masters of justice, we must serve the society and our judicial orders must be for the society at large. We are fully conscious that we are not on social justice but we cannot ignore legal justice because of the illegal deeds of some one at some level.
(o) A copy of this order is marked to the Chief Secretary of the State, so that necessary steps will be taken for expeditious disposal of the representation in the preventive detention cases and initiate action against those who are responsible for the delay at the Secretariat level and this will be dealt suitably and also for issuing instruction to all the Secretaries concerned that they should file affidavits promptly with all details. In our considered opinion, filing stero typed Xerox copy with sixteen columns like name of the detenu the, date of representation, the date of receipt and other formalities is not proper. A detailed counter affidavit has to be filed with all facts like, when the representation is received and how it was dealt with, from time to time, date wise and if any delay, it should be explained by the State why there is delay. Therefore, through this order, we are directing the Chief Secretary to issue necessary direction to the concerned to file detailed counter affidavit instead of filing Xerox sheet filling columns.
Decisions Since, we do not find any reasons to interfere with the detention order, this petition is liable to be dismissed. In the result, the habeas corpus petition is dismissed.