S.Maharaja Vs. the Commissioner of Police and ors. - Court Judgment

This Habeas Corpus petition has been filed to call for the records relating to the order of the first respondent, dated 2.8.2011, made in proceedings No.4/BDFGISSV/2011, and quash the same, and to produce the detenu, namely, E.Kombaiah, Son of Esakki Thevar, aged about 40 years, confined in the Central Prison, Palayamkottai, before this Court and to set him at liberty.

2. The petitioner has stated that the second respondent had passed the impugned detention order, under Sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), read with the order issued by the State Government, in G.O.(D) No.122, Home, Prohibition and Excise (XVI) Department, dated 18.7.2011, under Sub-section (2) of Section 3 of the said Act, in his proceedings No.4/BDFGISSV/2011, dated 2.8.2011, directing his detention, in the Central Prison, Palayamkottai, terming him as a “Goonda”.

3. This Habeas Corpus Petition has been filed by the brother-in-law of the detenu. The petitioner has challenged the detention order, dated 2.8.2011, passed by the first respondent, stating that the said order has not been passed in accordance with the relevant rules and the procedures prescribed in the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982. (Tamil Nadu Act 14 of 1982).

4. He has further stated that the detention order passed by the first respondent is bad in the eye of law, as it has not been approved by the state Government, within 12 days from the date of the said order. Further, the Detaining Authority had failed to note that there was no compelling necessity to pass the detention order, detaining the detenu in the Central Prison, Palayamkottai, terming him as a “Goonda”, especially, when the normal procedures prescribed under the criminal procedure code would be sufficient to deal with the alleged offences said to have been committed by the detenu.

5. The petitioner has further stated that the Detaining Authority had not arrived at his subjective satisfaction, based on the records available before him, while passing the detention order. The Detaining Authority had passed the detention order, mechanically, without proper application of mind. No materials were available on record for the Detaining Authority to arrive at the conclusion that the detenu, if he is let to be at large, would indulge in activities prejudicial to the maintenance of public order.

6. The petitioner has also stated that copies of the documents relied on by the Detaining Authority, while passing the detention order, had not been furnished to the detenu. As such, the detenu had been prevented from making an effective representation against the detention order. Further, the representation made on behalf of the detenu had not been considered by the authorities concerned. Undue delay in considering the representation had not been satisfactorily explained.

7. It has also been stated that the Detaining Authority had failed to note the long gap between the adverse case and the ground case alleged to have been committed by the detenu, while passing the detention order. There was nothing on record for the Detaining Authority to arrive at his conclusion that the detenu is a habitual offender. As such, the impugned detention order, dated 2.8.2011, is liable to be set aside.

8. The learned counsel appearing on behalf of the petitioner had referred to paragraph 6 of the grounds of detention, which reads as follows:

“6. I am aware that Thiru E.Kombaiah was produced before the Judicial Magistrate No.V (Full additional Charge), Tirunelveli on 21.7.2011 and remanded in Central prison, Palayamkottai as a remand prisoner on that day itself. His remand period expires on 4.8.2011. I am aware that Thiru E.Kombaiah is in remand in connection with the case in Pettai Police Station Crime Number.423/2011. I am also aware that there is real possibility of his coming out on bail by filing a bail application in connection with the case in Pettai Police Station Crime Number 423/2011 before the same court or higher court, since in similar cases bails are granted by the concerned court or higher courts. I am also aware that bail was granted in similar cases in Pettai Police station crime Numbers 408/2010, 409/2010 and 410/2010. If he comes out on bail, he will indulge in further activities in future which will be prejudicial to the maintenance of public order. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities which are prejudicial to the maintenance of public order. On the materials placed before me, I am satisfied that the said Thiru E.Kombaiah is a Goonda and there is compelling necessity to detain him in order to prevent him from indulging in acts which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982.”

9. The learned counsel had also submitted that even though the Detaining Authority had observed that he was aware that the detenu was in remand, in connection with the case in Crime Number.423/2011, on the file of the Pettai Police Station, he had stated that there is a real possibility of the detenu coming out on bail by filing a bail application before the court, in which the said case is pending, or before the higher court, since, in similar cases bails orders had been granted by the court concerned, or by the higher courts. He had also stated that he was aware that bail orders had been granted in cases relating to crime No.408/2010, 409/2010 and 410/2010, on the file of the Pettai police station. However, the Detaining Authority had not shown as to how the said cases were similar in nature to the case, in crime No.423 of 2011, relating to the detenu.

10. The learned counsel appearing on behalf of the petitioner had also stated that no bail application had been filed on behalf of the detenu in the ground case. He had further submitted that the tamil version of the bail order, dated 4.3.2011, made in criminal original petition Nos.3283 and 3300 of 2011, is different from the english version of the said order.

11. The learned counsel had also submitted that there was no proper application of mind by the Detaining Authority in passing the detention order. Even though it has been stated, in paragraph 6 of the grounds of detention, that the detenu is a remand prisoner in the Central Prison, Palayamkottai, and that his remand period expires, on 4.8.2011, no materials had been furnished to the detenu relating to the subsequent extension of remand. Therefore, the detention order passed by the Detaining Authority, on 2.8.2011, is liable to be set aside.

12. A detailed counter affidavit has been filed by the first respondent denying the averments and allegations made by the petitioner in the Habeas Corpus Petition.

13. The learned Additional Public Prosecutor appearing on behalf of the respondents 1, 2 and 4 had submitted that no representation had been made on behalf of the detenu, as claimed by the petitioner. He had further submitted that all the relevant documents relied on by the Detaining Authority had been furnished to the detenu. The Detaining Authority had applied his mind, properly, while passing the detention order, dated 2.8.2011. The correct tamil version of the order, dated 4.3.2011, made in Criminal Original Petition (MD) Nos.3283 and 3300 of 2011, had also been furnished to the detenu.

14. He had also submitted that the intimation regarding the detention of the detenu had been given to the wife of the detenu, on 3.8.2011, in the presence of witnesses. From the adverse cases referred to in the grounds of detention, it is clear that the detenu is a habitual offender. The detention order had been approved by the Government in G.O.No.1123, Home, Prohibition and Excise, (XIV) Department, dated 12.8.2011. Further, all the necessary procedures had been followed by the Detaining Authority, while passing the detention order.

15. The learned counsel had also submitted that the Detaining Authority had arrived at his subjective satisfaction, based on the materials available on record. Since, the bail orders had been granted in similar cases, in crime Nos.408/2010, 409/2010 and 410/2010, on the file of the Pettai police station, the Detaining Authority had come to the conclusion that there was a real possibility of the detenu coming out on bail, by filing a bail application in the case, in crime No.423 of 2011, on the file of the Pettai police station. He was also of the view that the detenu would, if he is at large, indulge in activities prejudicial to the maintenance of public order. The Detaining Authority was also of the view that recourse to normal criminal law would not have the desired effect of effectively preventing the detenu from indulging in such activities. Therefore, there was a compelling necessity for the Detaining Authority to pass the detention order against the detenu, in order to prevent him from indulging in acts, which would be prejudicial to the maintenance of public order.

16. The learned counsel had also submitted that no real prejudice had been caused to the detenu, by the procedure followed by the Detaining Authority, in passing the detention order. When no representation had been submitted on behalf of the detenu, it is not open to the petitioner to claim that there has been an undue and unexplained delay in considering the representation. As such, the Habeas Corpus Petition, filed by the petitioner, is devoid of merits. Hence, it is liable to be dismissed.

17. He had also submitted that the Habeas Corpus Petition, filed on behalf of the detenu, is premature in nature. He had relied on the decision of the Kerala High Court, in R.P.Goyal Vs. State AIR 1974 Kerala 85(V 61 C 24), in support of his contention.

18. The learned counsel appearing on behalf of the respondents had further submitted that the detenu ought to have availed the alternative remedy available before the Advisory Board.

19. The learned counsel appearing on behalf of the respondents had relied on the decision of the Supreme Court, in A.Geetha Vs. State of Tamilnadu (CDJ 2006 SC 702), wherein, it had been held that the only requirement is that the Detaining Authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse-dixit of the Detaining Authority. It would be sufficient if the Detaining Authority came to the conclusion, by his subjective satisfaction, based on the relevant materials. Normally, such satisfaction is not to be interfered with, by the courts of law.

20. In view of the submissions made on behalf of the petitioner, as well as the respondents 1, 2 and 4, and on a perusal of the records available, and in view of the decisions cited supra, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to set aside the detention order, dated 2.8.2011, passed by the first respondent.

21. Nothing has been shown by the petitioner in support of the claim that the detenu has been prejudiced by the procedures followed by the Detaining Authority, while passing the detention order. It is seen that all the necessary records relied on by the Detaining Authority had been furnished to the detenu. Further, no representation had been made on behalf of the detenu, to set aside the detention order and to set him at liberty. In such circumstances, it is not open to the petitioner to claim that there has been an undue and unexplained delay in considering the representation. In such view of the matter, the Habeas Corpus Petition filed by the petitioner, is devoid of merits. Hence, it is dismissed.