IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
25. 06.2014 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN and THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM H.C.P.No.2721 of 2013 T.Sathishkumar (a) Sathish (a) Kumar (a) Mandapam Sathish .. Petitioner Vs. 1.State of Tamil Nadu, rep. by Secretary to Government, Public (Law & Order) F Department, Secretariat, Chennai-9. 2.The Commissioner of Police, Coimbatore City. 3.The Secretary to Government, Government of India, Ministry of Home Affairs (Internal Security Department), North Block, New Delhi. .. Respondents Petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus, to call for the entire records relating to petitioner's detention under the National Security Act, vide detention order dated 8.10.2013 on the file of the second respondent herein made in proceedings C.No.03/NSA/IS/2013 and quash the same as illegal and consequently direct the respondents herein to produce the said petitioner namely T.Sathishkumar (a) Sathish (a) Kumar (a) Mandapam Sathish, son of Thiyagaraja, aged 30 years before this Court and set the petitioner at liberty from detention, now the petitioner detained at Central Prison, Chennai. For Petitioner : Mr.V.Parthiban, for Mr.C.C.Chellappan For Respondents : Mr.Shanmugavelayutham, Public Prosecutor, assisted by Mr.P.Govindarajan, for R1 & R2 Addl. Public Prosecutor Mrs.P.Bhuvaneswari, for R3 Central Govt. Standing Counsel ORDER
(Order of the Court was made by V.DHANAPALAN, J.) The detenu himself is the petitioner herein. He has been detained under the National Security Act, vide detention order dated 08.10.2013 on the file of the second respondent vide proceedings in C.No.03/NSA/IS/2013.
2. The case in brief, is as follows: On the complaint of one G.Vivekanandan @ Anandan, stating that the detenu along with co-accused cheated him by giving false promise of taking him to Australia and collected huge amount of money and jewellery from him, a case was registered in Crime No.03/2013 on the file of Coimbatore City, 'Q' Branch Criminal Investigation Department for offences under Sections 120(B) and 420 I.P.C., Section 12(1)(a) of Passport Act, 1967 read with Section 14 of Foreigners Act, 1946. During investigation, the Inspector of Police, 'Q' Branch Criminal Investigation Department, Coimbatore City arrested the detenu on 9.9.2013 at 9.00 hours and recorded his confession statement. The detenu was produced before the learned Judicial Magistrate No.II, Coimbatore on 9.9.2013 and he was remanded to judicial custody. Since the investigation revealed that the detenu and his associates by contravening the provisions of Indian Passport Act, 1967 and Foreigners Act, 1948, hatched a criminal conspiracy and cheated the complainant and many others by giving false promise of taking them to Australia to earn good money and collected huge amount of money and jewellery from them, the detaining authority clamped the order of detention against the detenu.
3. In the counter filed by the 2nd respondent/Commissioner of Police, it is stated as follows:
3. 1. One Thiru.G.Vivekanandan @ Anandan, S/o.Ganesan, resident of Door No.M-178, Sri Lankan Refugee Camp, Bhavani Sagar, Sathyamangalam, Erode District appeared at the Unit and preferred a written complaint stating that he is the resident of the above mentioned refugee camp from the year 2000, having identity card bearing No.812; during March 2013, one Easwaran, who is also a resident of the same refugee camp, met and told him, that he is arranging immigration of Sri Lankan refugees to Australia clandestinely with the help of Tvl. Sivashankar @ Shankar of Rameshwaram, Srijeyan @ Jegan of Chennai, Veeramani of Madurai, Sathish of Rameshwaram Mandapam Refugee Camp, Suresh of Ernakulam, Kerala and Kanna @ Balachandran, Subhakaran of Vedar Colony Refugee Camp; that the said Easwaran along with one Thiru Ramesh are facilitating the immigration of refugees living in Bhavani Sagar Refugee Camp by luring them to go to Australia and earn huge money; that the said Easwaran told the complainant that one to two lakh rupees are charged for each refugee, who wish to go to Australia in which one lakh rupee is being collected as advance and the balance to be paid once they reach Australia; 3.2. the complainant trusted their words as he was in poverty and on 10.04.2013, he was asked to come near the Central Bus Stand, Coimbatore by Tvl. Sivashankar @ Shankar and Srijeyan @ Jegan; on the same day, the complainant was brought from his camp to Coimbatore (in front of Raja lodge, near Central Bus Stand) by Tvl.Easwaran @ Ramesh, where the complainant paid Rs.1,35,000/- to Tvl.Sivashankar @ Shankar and Srijeyan @ Jegan; that after receiving money, they told the complainant that they will buy a boat at Ernakulam and after collecting many refugees, who are willing to go to Australia, they will arrange for a trip during the month of May; as promised, during the month of May, they informed the complainant to come to Ooty for proceeding to Australia; when the complainant went there, he saw 18 other refugees there who have come from Gummidipoondi, Trichy and Puzhal refugee camps; they stayed there for three days waiting to go to Australia; as the plan did not materialize even after three days, all were sent back to their respective homes by the organizers; the complainant and others met Tvl.Sivashankar @ Shankar, Srijeyan @ Jegan, Veeramani, Kanna @ Balachandran and Subhakaran, many times in these days at various lodges in Coimbatore City and insisted them to repay the money, but they did not do so. 3.3. The complainant would further state that the above mentioned people cheated him and others, by giving false promise of taking them to Australia and collected huge amount of money and jewellery from them and apprehended that a total of Rs.20,00,000/- would have been cheated by the said persons for this purpose. The complainant would further add that Tvl.Sivashankar @ Shankar, Srijeyan @ Jegan, Veeramani, Sathish, Suresh, Kanna @ Balachandran, Subhakaran, Easwaran and Ramesh induced them to part with their money with the promise of taking them to Australia clandestinely, but cheated them and requested action on his complaint. 3.4. On the complaint made by him, a case in Coimbatore City, 'Q' Branch Criminal Investigation Department in Crime No.1/2013 under Sections 120(B), 420 of the Indian Penal Code, 1860 (Central Act XLV of 1860), 12(1)(a) of Passports Act, 1967 (Central Act 15 of 1967) read with Section 14 of Foreigners Act, 1946 (Central Act 31 of 1946) was registered by the Sub-Inspector of Police, 'Q' Branch Criminal Investigation Department, Coimbatore City. The Inspector of Police, 'Q' Branch Criminal Investigation Department, Coimbatore City, took up investigation in this case. During the investigation, the Inspector of Police, 'Q' Branch Criminal Investigation Department, Coimbatore City, arrested T.Satishkumar @ Sathish @ Kumar @ Mandapam Satish on 09.09.2013 at 09.00 hours at ''Ramasamy Nagar'' Bus stop, Balapatty Pirivu, Mettupalayam to Kothagiri Road, Coimbatore District in the presence of independent witnesses after serving an arrest memo and on interrogation in the presence of independent witnesses, recorded his confession statement between 09.00 hours, which was voluntarily tendered by him. In his confessional statement, T.Satishkumar @ Satish @ Kumar @ Mandapam Satish admitted his offence in the ground case and also in the previous case. 3.5. Thiru. T.Satishkumar @ Satish @ Kumar @ Mandapam Satish was produced before the Judicial Magistrate No.II, Coimbatore on 09.09.2013 and remanded to judicial custody till 20.09.2013 and lodged in Central Prison, Coimbatore. His remand period was further extended till 21.10.2013 and now he is a remand prisoner in Central Prison-II, Puzhal, Chennai. The section of law of this case was further altered on 20.09.2013 from 120(B), 420 of the Indian Penal Code, 1860 (Central Act XLV of 1860), 12(1)(a) of Passports Act, 1967 read with Section 14 of Foreigners Act, 1946 to 120(B), 420, 468, 471 of the Indian Penal Code, 1860 (Central Act XLV of 1860), 12(1)(a) of Passports Act, 1967 and section 14(c) Foreigners Act, 1946 read with paragraph 5 of Foreigners Order, 1948. Therefore, there was a compelling necessity to pass the order of detention with a view to prevent him from indulging in such prejudicial activities in future. 3.6. According to the 2nd respondent, the offences committed by the petitioner were not the regular offences against body or property, but he and his associates have indulged in clandestine human trafficking to a foreign country without any valid Visa from that country, in this case, to Australia. Hence, the averments made by the petitioner are incorrect and unsustainable and that the detention order is valid in law.
4. Learned counsel appearing for the petitioner/detenu attacked the order of detention passed under the National Security Act, on two grounds viz., (i) Firstly, the document as to the similar case consideration, which is the material information which was taken into account by the detaining authority, has not been furnished to the detenu and therefore, there is denial of opportunity, which would result in deprivation of the right of the detenu guaranteed under Article 22(5) of the Constitution of India. (ii) Secondly, there is a delay in disposal of the representation of the detenu and therefore, it would violate the right of the detenu guaranteed under Article 22(5) of the Constitution of India.
5. Learned Public Prosecutor would submit that documents relating to similar case consideration are only to arrive at the satisfaction about the possibility of the detenu coming out on bail and that will not prejudice the right of the detenu and therefore, non-furnishing of such document would not defeat the right of the detenu guaranteed under Article 22(5) of the Constitution of India. On the ground of delay in disposal of the representation, learned Public Prosecutor would submit that there is no delay on the part of the detaining authority, as the representation of the detenu dated 26.10.2013 was received by the Government on 30.10.2013. On the very same day, the Government called for remarks from the detaining authority viz., Commissioner of Police, Coimbatore City. Since 2.11.2013 and 3.11.2013 happened to be Saturday and Sunday, there cannot be delay on the part of the detaining authority. On 5.11.2013 itself, the Commissioner took action immediately in calling for the remarks from the sponsoring authority, which has been received by the detaining authority on 6.11.2013 and it has been sent by the detaining authority to the Government on 7.11.2013. Therefore, there is no delay on the part of the detaining authority and there is no violation of Article 22(5) of the Constitution of India.
6. We have heard Mr.V.Parthiban, learned counsel appearing for the detenu; Mr.Shanmuga Velayutham, learned Public Prosecutor appearing for the State/Respondents 1 and 2 and Mrs.P.Bhuvaneswari, learned counsel appearing for the third respondent and perused the materials available on record.
7. It is seen that the detention has been made by the Commissioner of Police, Coimbatore City, taking into account that on 7.9.2013 at about 10.00 hours, while the Sub Inspector of Police, 'Q' Branch Criminal Investigation Department, Coimbatore City was on duty, one G.Vivekanandan @ Anandan (34) son of Ganesan, resident of Door No.M-178, Sri Lankan Refugee Camp, Bhavani Sagar, Sathyamangalam, Erode District appeared at the Unit and preferred a written complaint stating that he is the resident of the above mentioned refugee camp from the year 2000, having identity card bearing No.812; that during March, 2013, one Easwaran, who is also a resident of the same refugee camp, met and told him that he is arranging immigration of Srilankan refugees to Australia clandestinely with the help of Sivashankar @ Shankar of Rameshwaram, Srijeyan @ Jegan of Chennai, Veeramani of Maduri, Sathish of Rameshwaram Mandapam Refugee Camp, the detenu herein, Suresh of Ernakulam, Kerala and Kanna @ Balachandran, Subhakaran of Vedar Colony Refugee Camp; that the said Easwaran along with one Ramesh are facilitating the immigration of refugees, living in Bhavani Sagar Refugee Camp clandestinely by luring them to go to Australia and earn huge money; that the said Easwaran told the complainant that two lakh rupees are charged for each refugee who wish to go to Australia, in which one lakh rupee is being collected as advance and the balance to be paid once they reach Australia; that the above mentioned Sivashankar @ Shankar, Srijeyan @ Jegan, Veeramani, Sathish, the detenu herein, Suresh and Kanna @ Balachandran also came to Bhavanisagar Refugee Camp and lured the complainant and other refugees viz., Vignesh, Prabhakaran and Sreedharan to go to Australia and to earn huge money, by paying only few lakhs to them; that the complainant trusted the words of them as he was in poverty; that on 10.4.2013, the complainant was asked to come near the Central Bus Stand, Coimbatore, by the above mentioned Sivashankar @ Shankar, and Srijeyan @ Jegan; that on the same day, the complainant was brought from his camp to Coimbatore, (in front of Raja lodge, near Central Bus Stand) by the mentioned Easwaran and Ramesh, where the complainant paid Rs.1,35,000/- to the said Sivashankar @ Shankar and Srijeyan @ Jegan; that after receiving money, they told the complainant that they will buy a boat at Ernakulam and after collecting many refugees who are willing to go to Australia, they will arrange the trip during the month of May; that as promised during May month, they informed the complainant to come to Ooty for proceeding to Australia; that when the complainant went there, he saw 18 other refugees there, who have come from Kummidipoondi, Trichy and Puzhal refugee camps; that they stayed there for three days, since the plan did not materialize, all were sent back to their respective homes, by the organizers; that the complainant and others have met the mentioned Sivashankar @ Shankar, Srijeyan @ Jegan, Veeramani, Kanna @ Balachandran and Subhakaran many times in these days at various lodges in Coimbatore City and insisted them to repay the money, but they did not do so. Based on the said complaint, the detaining authority on satisfaction and on careful consideration and on considering all the records placed before him, detained the detenu T.Sathishkumar (a) Sathish (a) Kumar (a) Mandapam Sathish in exercise of powers conferred under sub-section (2) of Section 3 of the National Security Act, 1980 (Central Act 65 of 1980) read with the orders passed by the Government of Tamil Nadu in G.O.Ms.No.741, Public (Law and Order.F) Department dated 19.7.2013 under sub-section (3) of Section 3 of the said Act.
8. For appreciating the contentions raised by the learned counsel appearing for the petitioner/detenu as to the non-supply of documents relied on by the detaining authority in a similar case, the relevant averments in para 8 of the grounds of detention are extracted below:- 7. I am aware that T.Sathishkumar (a) Sathish (a) Kumar (a) Mandapam Sathish was remanded to judicial custody in Coimbatore City, 'Q' Branch Criminal Investigation Department Crime No.01/2013 under Section 120(B), 420, 468, 471 IPC, 12(i)(a) of Passport Act, 1967 and Section 14(c) Foreigners Act, 1946 r/w Para 5 of Foreigners Order 1948. In the ground case, on his behalf bail application has been filed before the Court of Hon'ble Judicial Magistrate No.II, Coimbatore in C.M.P.No.5824/2013 and the same was dismissed on 20.9.2013. However, in a similar case registered at Chennai City 'Q' Branch Criminal Investigation Department Crime No.04/2013 under Section 120(B) r/w 420 I.P.C. r/w 14(A)(b) of Foreigners Act 1946 and 14(c) of Foreigners Act 1946, bail was granted to the accused M.Mohamed Saddique by the Court of Hon'ble XIII Metropolitan Magistrate, Egmore, Chennai, in Crl.M.P.No.2433 of 2013 on 17.9.2013. Copies of the above orders have been enclosed in the booklet containing the related documents / records. Hence, I infer that there is a real possibility of accused T.Sathishkumar (a) Sathish (a) Kumar (a) Mandapam Sathish coming out on bail by filing bail application in the ground case before the higher court. ... 9. It is true that the detaining authority has expressed subjective satisfaction with regard to the real possibility of the detenu coming out on bail in the case in which he was in remand, based on the bail order granted by the learned XIII Metropolitan Magistrate, Egmore, Chennai, in Crl.M.P.No.2433 of 2013 on 17.9.2013 in similar case registered at Chennai City 'Q' Branch Criminal Investigation Department in Crime No.04/2013 under Section 120(B) r/w 420 I.P.C. r/w 14(A)(b) of Foreigners Act 1946 and 14(c) of Foreigners Act 1946. But the copy of the order in Crl.M.P.No.2433 of 2013 was not furnished to the detenu in the booklet and there is nothing to show that the said bail order was placed before the detaining authority at the time of clamping the order of detention. Hence, the subjective satisfaction expressed by the detaining authority is vitiated.
10. At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court in T.V.Saravanan alias S.A.R.Prasanna Venkatachariar Chaturvedi Vs. State, through Secretary and another, reported in 2006 (1) MLJ (Crl) 539 (SC), wherein, it is held as under: ".14. .... The bail applications moved by the appellant had been rejected by the Courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The ".imminent possibility". of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. 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. ....".
11. It is also relevant to refer to the latest decision of the Supreme Court in the case of Huidrom Konungjao Singh Vs. State of Manipur reported in (2012) 3 MLJ (Crl) 794 (SC), wherein the Hon'ble Apex Court followed its earlier landmark decision in Rekha's case and held in paragraphs 12 and 14 as under: ".12. In Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr., 2011 (2) SCC (Cri) 596 = 2011 (3) MLJ (Crl) 420 (SC), this Court while dealing with the issue held: ".............. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most Courts normally grant bail on this ground.". (emphasis supplied) 14. ....... Thus, as the detenu in the instant case has not moved the bail application and no other co- accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law.".
12. The principles laid down by the Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case. As we have already pointed out, the detaining authority has merely stated that there is a real possibility of the detenu coming out on bail and as such, the impugned detention order is vitiated and the same is liable to be set aside on the ground of absence of cogent materials for arriving at the subjective satisfaction and on this ground, the order of detention is vitiated.
13. The next question that arises for consideration is as to whether there is any delay in considering the representation of the detenu, which is the right guaranteed under Article 22(5) of the Constitution of India. In this connection, it would be useful to refer to Article 22 (5) of The Constitution of India and the same is extracted hereunder. 22(5) 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. 14. On a careful scrutiny of the impugned order, it is seen that there was a representation by the detenu on 26.10.2013 and the same was received by the Government on 30.10.2013. On receipt of the same, the Government immediately called for remarks from the detaining authority viz., Commissioner of Police on the same day. 02.11.2013 and 03.11.2013 happened to be holidays on account of Saturday and Sunday. A reminder was made on 5.11.2013. However, remarks were received from the detaining authority only on 12.11.2013. Learned Public Prosecutor though explained that the Commissioner had acted upon it on the very same day, it could be seen that either on the part of the detaining authority in sending the particulars or on the part of the sponsoring authority in receiving the remarks, there is an unexplained delay on 31.10.2013, 1.11.2013, 4.11.2013, 5.11.2013, 6.11.2013, 7.11.2013, 8.11.2013 and again on 11.11.2013. The delay for all these days is not explained. Therefore, it could be clearly seen that there is a delay in considering the representation of the detenu, which would deprive the detenu's right under Article 22 of the Constitution of India and also the right to consider the representation under Article 22(5).
15. In this connection, it would be relevant to refer to the decision of the Hon'ble Apex Court in the decision reported in 1999 (1) SCC417(Rajammal Vs. State of Tamil Nadu), wherein, it is held as under: ".7. 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 preempted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. ....
8. ..... 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 the delay, if any, in disposing of 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. 16. In yet another decision in the case of Tara Chand Vs. State of Rajasthan, 1980 (2) SCC321and in Raghavendra Singh Vs. Superintendent, District Jail, 1986 (1) SCC650 the Hon'ble Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal.
17. In the light of the above, we are of the view that there is a delay in disposing of the petitioner/detenu's representation and therefore, the impugned detention order cannot be sustained on this ground also.
18. In the result, this Habeas Corpus Petition is allowed and the impugned detention order made in C.No.03/NSA/IS/2013 dated 8.10.2013, is set aside. The detenu T.Sathishkumar (a) Sathish (a) Kumar (a) Mandapam Sathish, son of Thiyagaraja, is directed to be set at liberty forthwith, unless his custody is required in connection with any other case.
19. However, considering the gravity of the offences involved in this case, it is open to the prosecution to effectively contest the matter before the Regular Court, uninfluenced by the above order. It is also made clear that this order shall not confer any right or advantage whatsoever to the detenu to claim anything before the Regular Court. (V.D.P.,J.) (G.C.,J.) 25.06.2014 Index:Yes/No sbi To 1.The Secretary to Government, Public (Law & Order) F Department, Secretariat, Chennai-9. 2.The Commissioner of Police, Coimbatore City. 3.The Secretary to Government, Government of India, Ministry of Home Affairs (Internal Security Department), North Block, New Delhi. 4.The Public Prosecutor, High Court, Madras. V.DHANAPALAN, J.
and G.CHOCKALINGAM,J.
sbi/abe Order in H.C.P. No.2721 of 2013 DATED:
25. 06.2014