(Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the respondents 1 to 3 to provide compensation of Rs.50 Lakhs to the petitioner, within a stipulated period.)
Introductory:
1. This case is a classic example as to how certain bad elements with criminal background working in the Tamil Nadu Police Force are foisting cases against innocent people by invoking the provisions of Narcotic Drugs and Psychotropic Substances Act for blackmailing and to extract money and the plight of the common man who is made to suffer on account of such illegal acts of police officers, who are expected to uphold the majesty of law.
2. The respondents 4 and 5 registered a false case against the petitioner and two others under the provisions of the Narcotic Drugs and Psychotropic Substances Act [hereinafter referred to as 'the NDPS Act']. The petitioner was in jail for a period of 229 days, besides one day police custody. The investigation was transferred to CBCID. The CBCID exonerated the petitioner and prosecuted the fourth and fifth respondents and others for malicious prosecution. The case is under trial. The petitioner is before this Court claiming compensation for his illegal detention.
FACTS:
3. The petitioner along with two others were travelling in a car from Quilon to Alankulam, to meet the Vice Principal of Sardar Raja Engineering College at Alankulam, Tirunelveli District, in connection with the complaint regarding lack of attendance of his brother Arun, who was a third year Engineering student. When the vehicle reached Tenkasi, the petitioner and two others were intercepted by the fifth respondent, who was then working as a Sub- Inspector of Police. He was in civil dress. Since they did not stop the vehicle, the fifth respondent along with the other police men, who were all in civil dress, made them to stop the vehicle and took them to a Hotel Sakunthala, Tirunelveli. The petitioner and two others were handcuffed and kept in the hotel. The fifth respondent threatened the petitioner that unless a sum of Rs.2,00,000/- is paid, he will be falsely implicated in a narcotic case with two others. Since the petitioner and his companions refused to pay the bribe, the fourth and fifth respondents foisted a case against them in Crime No.10 of 2006, alleging that they were involved in transporting 24 Kilograms of Cannabis. The petitioner and others were produced before the jurisdictional Magistrate and they were remanded. The petitioner secured bail from the High Court on 26.09.2006.
4. The petitioner filed Crl.O.P.7150 of 2007 before this Court to transfer the investigation to the third respondent. This Court, taking into account the genuineness of the plea made by the petitioner, transferred the investigation to the CBCID, Tuticorin.
5. The third respondent investigated the matter in an unbiased manner and submitted a final report before the Special Court for NDPS Act Cases, Madurai, to the effect that the petitioner and two others are innocent and a false case was registered against them by the fourth and fifth respondents to extract money. The CBCID registered a case against the fourth and fifth respondents and other police men. The petitioner was put in jail for no fault of him for a period of 229 days. He was in lock-up for one day. The petitioner suffered physical as well as mental torture on account of the false case registered against him by the fourth and fifth respondents along with other police men. Since the State is vicariously liable for the tortious acts of its servants, the petitioner filed this Writ Petition claiming compensation from the Government.
6. The State filed a counter-affidavit through Joint Secretary to Government, Home, Prohibition and Excise Department, in answer to the contentions taken by the petitioner in his affidavit filed in support of the Writ Petition. The Government fully supported the case of the petitioner. According to the Government, the fourth and fifth respondents registered a false case against the petitioner and two others. The CBCID conducted a fair investigation and proceeded against the fourth and fifth respondents and the other policemen. According to the first respondent, the Government have taken adequate measures to give justice to the petitioner and as such, there is no question of giving him compensation.
7. I have heard the learned counsel for the petitioner and the learned Government Advocate appearing on behalf of the respondents 1 to 3.
DISCUSSION:
8. The factual matrix indicates that the fifth respondent intercepted the vehicle, in which, the petitioner and two others were travelling from Quilon to Alankulam. The fifth respondent, who was the then Sub-Inspector of Police, wanted the petitioner and two others to give him a sum of Rs.2,00,000/- for releasing them. The petitioner and his companions refused to give bribe, as according to them, they have not committed any offence. The fifth respondent, who is stated to be a history sheeter in police force and had a criminal record of foisting cases against innocent, registered a false case against the petitioner and two others in Crime No.10 of 206 under Section 8(c) r/w 25 r/w 20(b)(ii)(c) of NDPS Act. The fifth respondent alleged that the petitioner and two others were involved in transporting 24 Kilograms of Cannabis. The learned Judicial Magistrate, taking into account the allegation that huge quantity of Cannabis was transported by the accused, remanded them on 10.02.2006.
9. The petitioner was not granted bail by the lower Court. This Court, ultimately, granted bail to him on 26.09.2006. The petitioner was released from jail after spending 229 days in jail.
10. The investigation of the case in Crime No.10 of 2006 was transferred by an order of this Court to the CBCID. The third respondent conducted a fair investigation in the matter and submitted a report before the Jurisdictional Court that the petitioner and two others have not committed any offence. The third respondent, after giving a clean-cut to the petitioner and his companions, opined that the fourth and fifth respondents and other police men foisted a case to extract money. The CBCID registered a criminal case against the fourth and fifth respondents and other police officers concerned. The case is pending trial in C.C.No.19 of 2012 on the file of Special II Additional Special Court for NDPS Act Cases, Madurai.
11. The petitioner has come up with this Writ Petition claiming compensation from the Government on account of the illegal activities of its servants.
12. There is no dispute with regard to the factual particulars including the period during which the petitioner was in jail. The petitioner was in police lock-up for one day and in jail for 229 days. In short, the petitioner was in illegal custody for 230 days.
13. The Government have not disputed the statements contained in the affidavit filed in support of the Writ Petition. In fact, the Government fully supported the case of the petitioner.
14. The report filed by the Inspector of Police, CBCID, Tuticorin District to the jurisdictional Court on 10 January, 2008, contains the opinion formed by the Investigating Officer after investigation. It reads thus:
"As per my investigation, it is clear that the three accused 1.M.Anu Mohan, age 26/06, S/o.Mohan, Thurayil Kizhakathil, Karungappalli, Kollarn, Kerala State, (Now at) Krishnaveni, Kalleli Bhagom, Karunagapalli, Kollam, Kerala State 2. Ajaykumar, aged 42/06, S/o.Sathiyavarthan, Peruilaputhen Veedu, Kuttikad, Kadakkal, Kollam, Kerala State 3. R.Sarun, age 42/06, S/o.Rajappan, Keshava Bhavanam, Panikkan Tayyathy, Kalleli Bhagom, Karungappalli, Kollam, Kerala State are innocent. When they were proceeding to Alankulam through the said Maruti Car for meeting Principal in connection with the absence of A-1's brother M.Arun who had studied at Rajas Colleges, Sardar Raja College of Engineering, Raja Nagar, Alankulam, the said NIB CID Police Personnel including an informer caught them on 09.02.2006 and foisted the case with the possession of 24 Kg. Ganja as they were transporting and smuggling through the car. I drop further action against them in this case. S.Rajamanickam then SI of Police, NIB CID, Kanyakumari Unit i/c. of NIB CID, Tuticorin Unit 2. HC - 783, Kannan formerly working in the NIB CID, Kanyakumari Unit 3. HC -1015, Mathiyazhagan, formerly working in the NIB CID, Kanyakumari Unit 4. HC -2777, Stephen Louis Selvaraj, formerly working in the NIB CID, Kanyakumari Unit and 5.A police informer S.Kumar @ Babu @ Balavadivel, Age 36/2007, S/o.Subburaj, No.6/169, Santhaiyadiyoor, Seithunganallur Post, Tuticorin District 6. Tr.Gandhi then Inspector of Police, NIB CID, Ramanathapuram i/c. of NIB CID, Tuticorin Unit are the persons behind the entire episode and investigation is to be conducted on these accused. It is submitted that investigation is to be conducted against the above said other accused and I alter the sections of Law to 420, 467, 471 IPC and 8(C) R/w.20(b)(II)(C) 25 and 29 of NDPS Act."
15. The Investigating Officer submitted a further report to the Special Court on 11.12.2008 and requested the Court to refer the case initiated against the petitioner and two others as false. The concluding paragraph of the report reads thus:
"All these above noted investigation details have clearly proved the fact that Cr.No.10/2006 of NIB CID, Thoothukudi Unit is a foisted case. There is no iota of truth in it. All the documents were falsely prepared and contraband of 24 Kgs of ganja were put up with a false drama. The concerned police officers had deliberately put up a false case and misguided the judiciary also. Hence, it is further submitted that under these circumstances, after completion of investigation the case in Thoothukudi NIB CID Cr.No.10/2006 under section 8(c) r/w 20(b)(ii)(c) and 25 of N.D.P.S. Act including C.C.No.379/2006 against the accused 1.Anumohan, A-2.Ajaykumar and A-3.Sarun pending before the Spl. Dist. And Sessions Judge Court for E.C. Act and NDPS Act Cases at Madurai is referred as "False Case" and the Final report is submitted. The R.C.S. notice served on the complainant is also enclosed herewith. It is therefore prayed that this honourable Court may be pleased to accept this final Report referring the case as "False Case" and pass appropriate orders, closing the case and thereby render justice.
16. The counter-affidavit filed by the Government on behalf of the first respondent dated 12 February, 2015, while supporting the case of the petitioner, made it very clear that the Ganja was not seized from the petitioner and others and seizure mahazar was falsely prepared by the police officers. The following paragraph would read the position clear:
"8. It is humbly submitted that the investigation done by Crime Branch Criminal Investigation Department clearly established that the Crime No.10/2006 of Narcotic Intelligence Bureau, Criminal Investigation Department, Thoothukudi Unit was a false and foisted case. The 4th and 5th respondent, serving as police personnel in that unit, had deliberately exceeded their limit and scope in discharging their official duties as public servants and had foisted a false case and misguided the Superior Officers and judiciary. Hence, after completing the investigation, the case in Thoothukudi Crime No.10/2006 against the petitioner and two others was referred as false case. After the receipt of the said final report filed by Crime Branch Criminal Investigation Department, the Hon'ble Sessions Court acquitted the petitioner's from Crime No.10/2006 of Narcotic Intelligence Bureau, Criminal Investigation Department, Thoothukudi Unit."
17. There is no dispute that the Government have suspended the police officers and initiated disciplinary proceedings against them. The learned counsel for the petitioner submitted that the fourth and fifth respondents were permitted to retire peacefully, in spite of pendency of criminal proceedings.
18. The Government very clearly admitted that the fourth and fifth respondents exceeded their limit and acted beyond the scope of their legal duties.
19. The counter-affidavit filed by the Government and the report submitted by the CBCID, Tuticorin District, to the jurisdictional Court clearly proved the case of the petitioner insofar as his illegal detention is concerned.
20. The fifth respondent in association with the fourth respondent and other police officers and the police informer registered a false case against the petitioner and two others knowing fully well that they were not in possession of Cannabis or involved in any kind of criminal activities. The fifth respondent registered an F.I.R., against the petitioner and two others under the provisions of the NDPS Act, knowing fully well that it would not be possible for the accused to come out on bail, in case they are involved in NDPS case.
21. The petitioner is stated to be from a respectable family based at Quilon. His brother was a third year Engineering student at Sardar Raja Engineering College, Alankulam. The petitioner, for no fault of him, was made to suffer in jail for a period of 229 days. Just because the petitioner refused to give bribe to the fifth respondent, he was put up in lock-up for one day and in jail for 229 days. The petitioner suffered considerable mental torture on account of his illegal detention. The Society considered the petitioner as a bad element. The friends and relatives of the petitioner were not aware as to whether the case framed against him was false. According to the petitioner, he suffered humiliation on account of his remand in connection with the case registered by the fifth respondent.
22. The right to life guaranteed under Article 21 of the Constitution of India is not the life of an animal. The citizen must be treated fairly. As observed by the Supreme Court in D.K.Basu v. State of W.B. [AIR 1997 SC 610], any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution of India. The Supreme Court indicated that if the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism.
23. The Supreme Court in D.K.Basu's case observed that monetary or pecuniary compensation is an appropriate remedy, in case of violation of the right conferred by Article 21 of the Constitution of India. Paragraph No.55 of the judgment reads thus:
"55. Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must revive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do, The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not it derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.
24. The Supreme Court in Mehmood Nayyar Azam v. State of Chhattisgarh [2012 (8) SCC 1] considered the question of custodial humiliation and mental torture and the claim for compensation by the victim and observed that for payment of compensation, torture need not necessarily be physical. It can be mental and psychological torture calculated to create fear to submit to police demands. The Supreme Court said:
48. On a reflection of the facts of the case, it is luculent that the appellant had undergone mental torture at the hands of insensible police officials. He might have agitated to ameliorate the cause of the poor and the downtrodden, but, the social humiliation that has been meted out to him is quite capable of destroying the heart of his philosophy. It has been said that philosophy has the power to sustain a man s courage. But courage is based on self-respect and when self-respect is dented, it is difficult even for a very strong minded person to maintain that courage. The initial invincible mind paves the path of corrosion. As is perceptible, the mindset of the protectors of law appears to cause torment and insult and tyrannize the man who is helpless in custody. There can be no trace of doubt that he is bound to develop stress disorder and anxiety which destroy the brightness and strength of the will power. It has been said that anxiety and stress are slow poisons. When torment is added, it creates commotion in the mind and the slow poisons get activated. The inhuman treatment can be well visualized when the appellant came out from custody and witnessed his photograph being circulated with the self-condemning words written on it. This withers away the very essence of life as enshrined under Article 21 of the Constitution...................."
25. The Supreme Court in Achutrao Haribhau Khodwa v. State of Maharashtra [1996(2) SCC 634], while considering the doctrine of res ipsa loquitur and the vicarious liability of the Government for the negligent act of its employees, observed that running a hospital was an exercise of the State's sovereign power and as such, the State is vicariously liable in tort for the tortious acts committed by its servants. The relevant observation reads thus:
"11. The High Court observed that the Government cannot be held liable in tort for tortuous acts committed in a hospital maintained by it because it considered that maintaining and running a hospital was an exercise of the State's sovereign power. We do not think that this conclusion is correct. Running a hospital is a welfare activity undertaken by the Government but it is not an exclusive function or activity of the Government so as to be classified as one which could be regarded as being in exercise of its sovereign power. In Kasturi Lal Case itself, in the passage which has been quoted hereinabove, this Court noticed that in pursuit of the welfare ideal the Government may enter into many commercial and other activities which have no relation to the traditional concept of governmental activity in exercise of sovereign power. Just as running of passenger buses for the benefit of general public is not a sovereign function, similarly the running of a hospital, where the members of the general public can come for treatment, cannot also be regarded as being an activity having a sovereign character. This being so, the State would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees."
26. In State of Maharashtra v. Kanchanmala Vijaysing Shirke [1995(5) SCC 659], the Supreme Court explained the scope of vicarious liability in the following words:
"Traditionally, before the court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage. But of late, the fault is being read as because of someone's negligence or carelessness. Same is the approach and attitude of the courts while judging the various liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligent or not has to be examined on the materials produced before the Court. It is the rule that an employer, though guilty of no fault of himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some case, it can be found that an employee was doing an authorised act in an unauthorised but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting did something negligent or wrongful. A master is liable even for acts which he has not authorised provided they are so connected with acts which he has been so authorised. On the other hand, if the act of the servant is not even remotely connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside."
27. The petitioner, in the subject case, was confined within the four walls of the police station on 10.02.2006 and in jail for a period of 229 days. The mental agony suffered by him would be much more than the physical pain. The fifth respondent made use of his official position as a Sub-Inspector of Police and registered a false First Information Report against the petitioner. The fifth respondent was acting as the instrumentality of the Government and, therefore, the State is bound by his acts.
28. The Government have taken up a contention that the fifth respondent acted illegally and as such, the Government is not liable to pay compensation. I am not in a position to agree to the said contention.
29. It was not possible for the fifth respondent to register a false case against the petitioner, in case he was not a police officer. It was only on account of his position as a police officer, the fifth respondent was in a position to register a false case against the petitioner. The fifth respondent has gone to the extent of registering a narcotic case against the petitioner and two others knowing fully well that they were innocent. The State is, therefore, vicariously liable for the tortious acts of its servants. There is no escape from the said rule. I, therefore, reject the contention taken by the State with regard to liability.
30. The next question relates to the quantum. There is no straitjacket formula in a case of this nature. It is not possible to assess the compensation in a case of this nature by mathematical precision and accuracy. Some amount of guess work is necessary. Each case has to be decided on its own facts and circumstances.
31. The petitioner, who is a resident of a Neighbouring State, was made to suffer for months together just because he was not prepared to pay bribe to a police officer. Each day the petitioner suffered mental agony. But for the transfer of investigation ordered by this Court, the fifth respondent would have succeeded in convicting the petitioner and two others. The timely action taken by this Court by transferring the investigation helped the petitioner to come out of jail.
32. The petitioner was in lock-up on 10.02.2006. Thereafter, he was in jail for 229 days. Therefore, it is clear that the petitioner was in illegal custody for a period of 230 days. By taking a total view of the matter and in the light of the decided cases regarding payment of compensation and the advancement of law regarding public liability cases, I am of the view that the petitioner is entitled to a compensation at the rate of Rs.5,000/- per each day of his illegal detention. In short, the petitioner is entitled to a total sum of Rs. 11,50,000/- (Rupees Eleven Lakhs and Fifty Thousand only) as compensation at the rate of Rs.5,000/- per day for a period of 230 days.
33. The first respondent is directed to pay a sum of Rs. 11,50,000/- (Rupees Eleven Lakhs and Fifty Thousand only) to the petitioner as compensation with interest at 9% per annum from the date of filing the Writ Petition viz., 21.04.2010. The payment shall be made, within a period of eight weeks from the date of receipt of a copy of this order.
34. In the upshot, I allow the Writ Petition. No costs.Consequently, the connected miscellaneous petition is closed.