IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.1.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN Habeas Corpus Petition Nos.1888 and 1889 of 2008 H.C.P.No.1888 of 2008: Thomas ... Petitioner Vs. 1.The State of Tamil Nadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai. 2.The Commissioner of Police, Egmore, Chennai. 3.The Inspector of Police (Crime), K-10, Koyambedu Police Station, Koyambedu, Chennai (Cr.No.754/2008) 4.The Inspector of Police, K-3 Aminjikarai Police Station, Chennai (Cr.No.442/2008) ... Respondents H.C.P.No.1889 of 2008: M.Arogyamary ... Petitioner Vs. 1.The State of Tamil Nadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2.The Commissioner of Police, Egmore, Chennai. 3.The Inspector of Police (Crime), K-10, Koyambedu Police Station, Koyambedu, Chennai (Cr.No.754/2008) 4.The Inspector of Police, V-4 Rajamankalam Police Station, Chennai. (Cr.No.364/2008) ... Respondents * * * Both the petitions are filed under Article 226 of the Constitution. H.C.P.No.1888 of 2008 has been filed praying to issue a Writ of Habeas Corpus, directing the respondents to produce the body and person of the petitioner's brother Alex @ Sowri Muthu Alex, son of Sengoal, aged about 26 years, who has been detained in the Central Prison, Puzhal, Chennai, under a Detention Order No.266/2008, dated 16.8.2008 of the Commissioner of Police, Chennai (2nd respondent) calling for the records and setting aside the same and set the petitioner's brother, Alex @ Sowri Muthu Alex, son of Sengoal at liberty. H.C.P.No.1889 of 2008 has been filed praying to issue a Writ of Habeas Corpus, directing the respondents to produce the body and person of the petitioner's husband Michel, son of Arokiyam, who has been detained in the Central Prison, Puzhal, Chennai, under a Detention Order No.268/2008, dated 16.8.2008 of the Commissioner of Police, Chennai (2nd respondent) calling for the records and setting aside the same and set the petitioner's husband, Michel, son of Arokiyam at liberty. * * * For petitioners in both the HCPs. : Mr.P.Thamizhkumaran For respondents in both the HCPs. : Mr.N.R.Elango, Addl.P.P. * * * https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER ELIPE DHARMA RAO, J. Both the detenus, along with other accused, are alleged to have committed the offences punishable under Sections 364-A, 392, 394 and 398 IPC, for which a case in Cr.No.754/2008 has been registered by the Inspector of Police, Crime, K-10 Koyambedu Police Station. It is alleged that on 14.7.2008 night at about 9.15 p.m., all the accused persons, coming by a two wheeler and a Maruthi van, intercepted the auto bearing registration No.TN-01W-2921, wherein the defacto- complainant Balasubramanian and two others were travelling, at Koyambedu Roundana, opposite to Hotel Shan Royal, and beat the auto driver and pushed him and at the point of knife and log, threatened the defacto-complainant and two others, who were sitting in the auto with cash in their hands and assaulted them and kidnapped them in the van in which they came and also threatened the public and later they snatched the cash of Rs.40 lakhs from the defacto-complainant and one Sivamurugesan and took them to Madhavaram and underneath the Madhavaram bridge, they pushed one by one and escaped from the spot in the said van. 2. It is further alleged that while both the detenus were absconding in the above said Cr.No.754 of 2008 of the K-10 Koyambedu Police Station, the detenu Alex @ Savarimuthu Alex, brother of the petitioner in H.C.P.No.1888 of 2008, on 18.7.2008 at about 18.00 hours went to the fast food centre of one Babu, at Third Avenue road, Arumbakkam, Chennai in a Qualis car bearing Registration No.TN-09 U- 7273 and had fried rice and when they were about to move without paying money, the said Babu insisted for payment of the bill. Questioning the dareness of Babu in insisting payment, the detenu Alex @ Savarimuthu Alex caught hold of Babu and the other accused Bala @ Balamurugan beat him over his cheeks and all the accused have assaulted him and the detenu Alex @ Savarimuthu Alex removed the gold chain and all the accused persons, threatening the nearby shopkeepers and public escaped from the scene. Thereupon, on the complaint lodged by Babu, a case in Cr.No.442/2008 of K-3 Aminjikarai Police Station came to be registered for the offences punishable under Sections 147, 148, 341, 323, 384 and 386 IPC. 3. Likewise, it is alleged that the detenu Michel, while absconding in Cr.No.754 of 2008 of K-10 Koyambedu Police Station, on 16.7.2008 at 8.30 hours, joining hands with other accused, at Red Hills Road and Makkaram Thottam junction, have wrongfully restrained https://hcservices.ecourts.gov.in/hcservices/ one Sekar and at the point of knife, committed robbery of gold ring and cash of Rs.1,000/= and on the hue and cry raised by Sekar, when public came to his rescue, all the accused hurled cool drink bottles and threatened the public and escaped from the spot by boarding a Maruthi van bearing Registration No.TN-05Y-2235. Thereupon, based on the complaint lodged by Sekar, a case in Cr.No.364/2008 of V-4 Rajamankalam Police Station, for the offences punishable under Sections 341, 427, 336, 397 and 506(II) IPC. 4. It is further alleged that during the course of investigation, the Inspector of Police, K-10 Koyambedu Police Station arrested the detenu Michel along with other accused Yogeswaran @ Mani and Kumar on 16.7.2008 at 14.00 hours at Redhills Road and 200 Feet Road Junction and a cash of Rs.10.25 lakhs was also recovered from them under a cover of mahazar and their confessional statements were also recorded and later they were produced before the V Metropolitan Magistrate Court, Egmore Court, Chennai and were remanded to judicial custody till 31.7.2008, which was extended periodically till 27.8.2008. 5. It is further seen that the detenu Alex @ Savarimuthu Alex and Bala @ Balamurugan were arrested on 23.7.2008 at 18.00 hours at 200 Feet Road near Lucas Bus Stop and a cash of Rs.2,17,000/= was recovered from them under a cover of mahazar and later they were produced before the V Metropolitan Magistrate, Egmore, Chennai and they were remanded to judicial custody till 31.7.2008, which was periodically extended till 27.8.2008. 6. When both the detenus were in custody, as remand prisoners, the impugned orders of detention, were slapped on them. 7. So far as the detention of a person, while he is in custody and while answering the question raised that since the detenu being in custody, the anticipated and apprehended acts were practical impossibilities, the Honourable Apex Court in UNION OF INDIA vs. PAUL MANICKAM [(2003) 8 SCC 342] has held as follows: "14. So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu https://hcservices.ecourts.gov.in/hcservices/ by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N.Meera Rani v. Govt. of T.N. (1989) 4 SCC 418 and Dharmendra Suganchand Chelawat v. Union of India (1990) 1 SCC 746) The point was gone into detail in Kamarunnissa v. Union of India (1991) 1 SCC 128. The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail." 8. In the cases on hand, the Detaining Authority, in Para No.4 of the grounds of detention, has clearly stated that he is aware of the fact that the detenus are in custody in Cr.No.754 of 2008 of K-10 Koyambedu Police Station and that there is very likely of their coming out on bail by filing bail applications, even though the earlier ones are dismissed, since in similar cases bails are granted by the same Court or High Court after a lapse of time. The Detaining Authority has further stated that if the detenus come out on bail, they will indulge in further activities, which will be prejudicial to the maintenance of public order and the recourse to normal criminal law https://hcservices.ecourts.gov.in/hcservices/ would not have the desired effect of effectively preventing them from indulging in such activities, which are prejudicial to the maintenance of public order. Therefore, it is abundantly clear that the Detaining Authority is very well aware of the fact of the detenus being in custody and the possibility of their coming out on bail and the impugned orders of detention were slapped on them since, the Detaining Authority has a reason to believe that if they come out on bail, they will indulge in activities which are prejudicial to the maintenance of public order. Therefore, since all the guidelines prescribed by the Honourable Apex Court in such cases, in the above judgment, have been complied with by the Detaining Authority, we find no illegality or irregularity in passing the detention orders while they were in custody. 9. The main point urged on the part of the detenus is that though the order of detention was passed on 16.8.2008, they were served with only the order of detention and the grounds of detention were not served on them within five days from the date of detention and therefore, on this sole ground, the impugned orders of detention are liable to be quashed. 10. Earlier, both the detenus viz. Alex @ Sowri Muthu Alex and Michel have filed H.C.P.Nos.1361 and 1362 of 2008 respectively, before this Court, challenging the very same detention orders on the ground that though the detention orders were served on them, they were not served with the grounds of detention and sought to quash the detention order. Both those petitions were dismissed by us by the orders dated 31.10.2008, with a direction to file comprehensive writ petitions, since except the orders of detention, no other documents were filed before us and the learned counsel for the petitioners have not taken any step to file the grounds of detention. Thereafter, both the present petitions have been filed on behalf of the detenus. 11. As has already been stated supra, as on the date of order of detention, both the detenus were in custody as remand prisoners in Cr.No.754 of 2008 of the K-10 Koyambedu Police Station at Central Prison, Puzhal, Chennai. Though the detention order is dated 16.8.2008, it has been served on both the detenus on 18.8.2008 at the Central Prison, Puzhal, Chennai, as could be seen from the endorsement available on the back side of the detention order. Thereupon, the grounds of detention were served on them on 23.8.2008 at the Central Prison, Puzhal, Chennai, under their acknowledgements, as could be seen from the endorsements found on the back of the grounds of detention. Thus, the Detaining Authority has furnished the grounds of detention within five days of the serving of the order of detention on the detenus, as has been mandated under Section 8 of the Act 14 of 1982 and as has been repeatedly held by the upper forums of law, https://hcservices.ecourts.gov.in/hcservices/ particularly by the Honourable Apex Court right from the judgment in IBRAHIM AHMAD BATTI @ MOHD. AKHTAR HUSSAIN @ KADAR AHMED WAGNER @ IQUBAL @ GULAM vs. STATE OF GUJARAT AND OTHERS [1983 SCC (Cri) 66]. Therefore, there is no delay, whatsoever in furnishing the grounds of detention to the detenus. 12. When such is the crystal clear position that the detenus were served with the grounds of detention on 23.8.2008 itself, in the affidavit sworn in by the detenus on 25.8.2008 pertaining to the earlier petitions in H.C.P.Nos.1361 and 1362 of 2008, they have stated that they were not served with any other documents except the order of detention, which is nothing but a patent lie and a false averment made before this Court. Further more, even when the above said H.C.P.Nos.1361 and 1362 of 2008 were taken up for hearing by us on 31.10.2008, the grounds of detention were not produced before this Court, even though they were very well served upon the detenus on 23.8.2008 itself, which appears to be only with a view to obtain a favourable order from this Court on the ground that grounds of detention were not served on the detenus till that time, amounting to playing fraud on the justice delivery system. 13. Though for filing false affidavits in the earlier proceedings and hiding the information which is very well within their knowledge as on the date of swearing in the affidavits, both the detenus are liable for prosecution under Sections 199 and 200 of IPC, considering the fact that they are already in detention, we do not propose to take any further penal action on them, only with a sympathetic view. 14. On behalf of the petitioner in H.C.P.No.1889 of 2008, it has been argued that in the grounds of detention at Page No.4, it has been stated that the detenu Michel, Yogeswaran @ Mani and Kumar were arrested on 16.7.2007 at 14.00 hours by the third respondent for the subsequent offence registered by the 4th respondent and thus there is no proximity to the case warranting an order of preventive detention. We are unable to accept this contention for the simple reason that on a thorough perusal of the entire materials placed on record, we are able to see that it is nothing but a typographical error and instead of mentioning the date as 16.7.2008, it has been wrongly mentioned as 16.7.2007, wherefrom no benefit could flow to the detenu. https://hcservices.ecourts.gov.in/hcservices/ For all the above reasons and discussions, we find no merit in both these petitions and accordingly, both these Habeas Corpus Petitions are dismissed. Rao Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai. 2.The Commissioner of Police, Egmore, Chennai. 3.The Inspector of Police (Crime), K-10, Koyambedu Police Station, Koyambedu, Chennai 4.The Inspector of Police, K-3 Aminjikarai Police Station, Chennai 5.The Inspector of Police, V-4 Rajamankalam Police Station, Chennai. 6.The Superintendent of Police, Central Prison, Puzhal, Chennai. 7.The Public Prosecutor, High Court, Madras. + 2 ccs to Mr. P. Tamizhkumaran, Advocate SR No.463, 464 PUR(CO) SR/12.1.2009 Common order in H.C.P.Nos. 1888 and 1889 of 2008 https://hcservices.ecourts.gov.in/hcservices/