IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2010 CORAM: THE HONOURABLE MR.JUSTICE C.NAGAPPAN AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR H.C.P.Nos.2393, 2404 and 2405 of 2009 1.Chandra ... Petitioner in H.C.P.No.2393 2.Vahitha ... Petitioner in H.C.P.No.2404 3.Thilkam ... Petitioner in H.C.P.No.2405 Vs 1.The State rep. by The Secretary to Government Home, Prohibition and Excise Department Fort St. George Chennai-600 009 2.The Commissioner of Police (Detaining Authority) Greater Chennai Egmore, Chennai-600 008 .. Respondents in all the HCPs PRAYER: Petitions filed under Article 226 of the Constitution of India to issue Writs of Habeas Corpus to call for the records of the 2nd respondent in No.518/BDFGISSV/2009, 519/BDFGISSV/2009 and 520/BDFGISSV/2009 dated 14.12.2009 and quash the same and produce the corpus of the detenus, namely Murugan s/o.Late Ramu, Murali s/o Jayaraman and Rajendran whose are confined at Central Prison,Puzhal, Chennai and set aside the same and direct the respondents to produce the body are persons before this Hon'ble Court and set him at liberty. For Petitioner : Mr.K.M.Vijayan, Senior Advocate (in H.C.P.No.2404/ for M/s.Fennwalter Associates 2009) For Petitioner : R.Sankarasubbu for Mr.B.Ganesha Moorthy in H.C.P.Nos.2393 & 2405/2009 For Respondents : Mr.M.Babu Muthu Meeran, Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER (Made by P.R.SHIVAKUMAR,J.) H.C.P.No.2393/2009 has been filed by Chandra, the mother of the detenu Murugan, son of Late Ramu, challenging the order of detention passed by the second respondent (the Commissioner of Police, Greater Chennai, Egmore) in his Memo No.518/BDFGISSV/2009 dated 14.12.2009 directing the detention of the said Murugan as a goonda. 2. One Vanitha, the wife of detenu Murali son of Jayaraman has filed H.C.P.No.2404/2009 challenging the order of detention passed by the second respondent (Commissioner of Police, Chennai) in his proceedings Memo No.519/BDFGISSV/2009 dated 14.12.2009 directing the detention of the above said Murali as a goonda. 3. H.C.P.No.2405/2009 has been filed by one Thilkam wife of detenu Rajendran challenging the order of detention passed by the second respondent in his Memo No.520/BDFGISSV/2009 dated 14.12.2009 directing detention of the above said Rajendran as a goonda. 4. Three different orders have been passed by one and the same detaining authority directing detention of the detenus Murugan, Murali and Rajendran holding them to be 'goondas', as per the definition found in section 2(f) of Tamil Nadu Act 14/1982 and expressing satisfaction that their presence at large would be prejudicial to the maintenance of public order. The said orders of detention are challenged in H.C.P.Nos.2393, 2404 and 2405 of 2009 respectively. The ground case and the adverse cases referred to in all the three detention orders challenged in these Habeas Corpus Petitions are one and the same and the grounds on which the detention orders are challenged are almost similar. Therefore, all the three petitions were heard jointly and are being disposed of by a common order. 5. i) A case registered as Cr.No.778/2009 on the file of R.7, K.K.Nagar Police Station for alleged offences punishable under Sections 294(b), 385 and 506(ii) IPC r/w section 4 of Tamil Nadu Prohibition of Charging of Exorbitant Interest Ordinance relating to an alleged occurrence that took place one week prior to 20.11.2009, ii) a case registered as Cr.No.670/2009 on the file of R.9, Valasarawakkam Police Station for alleged offences punishable under sections 147, 148, 448, 341, 384, 506(ii) IPC r/w section 4 of Tamil Nadu Prohibition of Charging of Exorbitant Interest Ordinance relating to an alleged occurrence that took place on 20.11.2009 and 3) a case registered as Cr.No.1051/2009 on the file of R.6 Kumaran Nagar Police Station for alleged offences punishable under sections 147, 148, 341, https://hcservices.ecourts.gov.in/hcservices/ 384, 419, 467, 468 and 506(ii) IPC relating to an occurrence that allegedly took place on 20.11.2009 are the three adverse cases cited by the detaining authority in the grounds of detention in respect of all the three detenus. A case registered as Cr.No.1269/2009 on the file of R.10, M.G.R.Nagar Police Station, Chennai for alleged offences punishable under Sections 147, 148, 341, 332, 336, 427, 307 and 506(ii) IPC is the ground case cited in the grounds of detention in all the three detention orders. 6. Even though several grounds have been raised in the respective petitions, Mr.K.M.Vijayan, learned senior counsel representing the counsel on record for the petitioner in H.C.P.No.2404/2009 and Mr.R.Sankarasubbu, learned counsel for the petitioners in H.C.P.Nos.2393/2009 and 2405/2009 mainly relied on the following contentions:- i) There is arbitrary exercise of power by the detaining authority in selecting three out of the nine accused persons, who have been named as accused in two of the adverse cases and the ground case. For grouping the three detenus concerned in these petitions as a class distinct from other accused persons, no reason has been assigned by the detaining authority and the same offends equal protection of law guaranteed under Article 14 of the Constitution of India. ii) The case of Rajendran, the detenu concerned in H.C.P.No.2405/2009 is still worse, since his name does not find a place as an accused in the first information report in the second adverse case. The same will reveal the fact that the persons who have been arraigned as accused in all the three adverse cases and the ground case were not chosen for clamping detention orders on them, whereas the detenu Rajendran, who does not figure as an accused in the second adverse case but figures only in the first and third adverse cases and the ground case, has been chosen to be clamped with an order of detention as 'goonda' and the same will show the arbitrariness with which the orders of detention have been passed by the detaining authority. iii) All the three adverse cases were registered on one and the same day, namely 20.11.2009. The ground case came to be registered on 24.11.2009. Meanwhile, there was a complaint by way of a telegram sent to the second respondent (detaining authority) informing that the detenu Murali had been taken into custody by the police on 18.11.2009 itself and was being kept in illegal custody. As no fruitful result was forthcoming, a habeas corpus petition in H.C.P.No.2097/2009 and another H.C.P.No.2080/2009 were filed on the file of this court alleging that the detenu Murali and one Gurumurthy were illegally detained by the police. Only after the filing of the said habeas corpus petitions, the arrest of the said detenus in the ground case on 24.11.2009 was shown and this court, on coming to know that the custody of those persons was pursuant to an order of remand dated https://hcservices.ecourts.gov.in/hcservices/ 25.11.2009 made by the Magistrate, closed the said habeas corpus petitions. In addition to that, a representation to the Human Rights Commission was sent on 22.12.2009. All these facts will show malafide on the part of the detaining authority in passing the orders of detention challenged in these habeas corpus petitions. iv) Even assuming that the said factual question as to when were the said detenus arrested cannot be probed in these HCPs, the orders of detention are vitiated for non-consideration of relevant materials. The telegram sent to the second respondent (detaining authority) on behalf of the detenu Murali on 20.11.2009 and the affidavit filed in the previous H.C.P.No.2097/2009 containing an allegation to the effect that the detenu Murali was taken into custody on 18.11.2009 itself and was kept in illegal custody till he was shown to be arrested in the ground case, was not taken into consideration by the detaining authority. The said omission on the part of detaining authority would amount to non-consideration of pre-detention representations and the same will vitiate the detention order. v) All the three adverse cases were registered on one and the same day, namely 20.11.2009 and the ground case was registered on 24.11.2009. The same shall not be enough to hold that the detenus were habitually committing offences specified in section 2(f) of Tamil Nadu Act 14 of 1982. The satisfaction of the detaining authority that the detenus are to be termed goondas, as they were habitually committing the offences punishable under the provisions of the Indian Penal Code referred to in section 2(f) of Tamil Nadu Act 14 of 1982 is not based on cogent materials. vi) There is non-application of mind on the part of the detaining authority since the name of the detenu Rajendran has not been referred to as one of the accused in the second adverse case by the detaining authority in the grounds of detention supplied to the said detenu. The same will show non-application of mind vitiating the order of detention. The detenu Rajendran is not one of the accused in the second adverse case. However, the second adverse case has also been relied on to hold him to be a goonda, which will amount to not only non-application of mind but also consideration of extraneous materials vitiating the order of detention. 7. The submissions made by Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor representing the State on the above said points urged were also heard. The materials placed before the court in the form of typed sets and the paper book were also perused. 8. The detaining authority noticed three adverse cases and one ground case to clamp the orders of detention on the https://hcservices.ecourts.gov.in/hcservices/ detenus concerned in all the three habeas corpus petitions. The first adverse case, namely Cr.No.778/2009 on the file of R.7 K.K.Nagar Police Station, was registered for alleged offences punishable under sections 294(b), 385 and 506(ii) IPC r/w section 4 of Tamil Nadu Prohibition of Charging of Exorbitant Interest Ordinance. A copy of the first information report in the said case is found at page 1 of the paper book. Nine persons (Kannan, Muralidharan, Chandramouli, John Peter, Srinivasan, Annadurai, Rajendran, Murugan and Gurumurthy) have been arraigned as accused persons. The detaining authority has referred to the said adverse case as one in which all the above said nine persons figure as accused. The same is the case in respect of the third adverse case noticed by the detaining authority, namely Cr.No.1051/2009 registered on the file of R.6, Kumaran Nagar Police Station for alleged offences punishable under sections 147, 148, 341, 384, 419, 467, 468 and 506(ii) IPC. A copy of the first information report in the said case is found at page 38 of the paper book. All the nine, who figure as accused in the first adverse case also figure as accused in the third adverse case. The ground case is one registered as Cr.No.1269/2009 on the file of R.10, M.G.R.Nagar Police Station for alleged offences punishable under sections 147, 148, 341, 332, 336, 427, 307 and 506(ii) IPC. A copy of the first information report in the said case is found at page 65 of the paper book. All the nine, who figure as accused in the first and third adverse cases also figure as accused in the ground case. However, in the second adverse case, namely Cr.No.670/2009 registered on the file of R.9, Valasarawakkam Police Station for offences punishable under sections 147, 148, 448, 341, 384, 506(ii) IPC r/w section 4 of Tamil Nadu Prohibition of Charging of Exorbitant Interest Ordinance, there are only eight named accused as ascertained from the copy of the first information report found at page 22 of the paper book. All the persons who figure as acccused in the first and third adverse cases and the ground case, except Rajendran, are the named accused persons in the second adverse case, namely Cr.No.670/2009 on the file of R.9, Valasarawakkam Police Station. It is pertinent to note that all the cases were registered citing the provision in the Tamil Nadu Prohibition of Charging Exorbitant Interest Ordinance, 2003 (Tamil Nadu Ordinance 2 of 2003) which was replaced by an Act, namely Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 (Tamil Nadu Act 38 of 2003). 9. It is the contention of the learned senior counsel appearing for the petitioner in H.C.P.No.2404/2009 and the learned counsel for the petitioners in H.C.P.Nos.2393/2009 and 2405/2009 that when all the nine were arraigned as accused in the first and third adverse cases and the ground case and eight out of the said nine persons were arraigned as accused in the second adverse case, the detaining authority chose to clamp the orders of detention on three of them alone (detenus concerned in these three HCPs) holding them to be goondas as per the definition of https://hcservices.ecourts.gov.in/hcservices/ the said term found in Section 2(f) of Tamil Nadu Act 14 of 1982 and expressing subjective satisfaction that their presence at large would prove to be prejudicial to the maintenance of public order. It is the contention raised on behalf of the petitioners that when nine persons were placed on equal footing, the detaining authority chose to classify three alone as a separate class and clamped orders of the detention on them; that there is no rational basis for such a classification; that nothing has been mentioned in the order of detention as to why such a classification was made and that the same amounts to denial of the right to equal protection of law guaranteed under Article 14 of the Constitution of India. 10. It is the further contention raised on behalf of the petitioners that the equal protection clause shall be attracted against the orders of preventive detention as well. But, this court is of the considered view that the equal protection clause cannot be stretched further to be made applicable for quashing the orders of detention for not assigning reasons in the grounds of detention for the exclusion of others and selection of the detenus alone when the detaining authority choses the persons among the accused in the ground case to be clamped with the order of detention under the preventive detention law. However, we are of the view that there is some force in the contention that the exercise of power by the detaining authority to pass orders of detention against the detenus concerned in these HCPs alone can be challenged as being arbitrary. The arbitrariness pointed out on behalf of the petitioners is that though the detaining authority chose to consider the detenus concerned in these HCPs alone as a class out of the nine accused persons, who were arraigned as such in the first and third adverse cases and the ground case, there was no reasonable basis for such a classification to treat them differently from the rest of the persons. The said argument has been advanced on the ground that no reason has been assigned in the grounds of detention for selecting the above said three persons alone for being termed as goondas. We are of the considered view that it shall not be necessary on the part of the detaining authority to assign any reason in the grounds of detention as to why the other persons are not chosen for being detained under the preventive detention law. Suffice to state the satisfaction that the detenus are to be termed goondas and their presence at large will be detrimental to the maintenance of public order. But the same does not mean that the court while dealing with HCP challenging the order of detention, cannot go into the question of arbitrariness in such classification. When the order of detention is challenged on the ground of arbitrariness based on the classification of the detenus alone from the rest of the accused, it shall be the duty of the detaining authority and the State to establish reasonable basis of such classification to rule out arbitrariness. In this case, though the detaining authority cannot be found fault with for not https://hcservices.ecourts.gov.in/hcservices/ assigning reason in the grounds of detention for selecting the detenus concerned in these HCPs alone for clamping the orders of detention leaving out the other accused in the ground case and the adverse cases, there is failure on the part of the respondents herein to state the basis of such classification atleast before the court in these HCPs. The failure on the part of the respondents to assign reasons in their counter affidavit in these petitions as to why the detenus alone were selected for detention as goondas leaving out the other six persons will show that the exercise of the statutory power by the detaining authority was arbitrary especially when the left out persons were placed on equal footing with Murugan and Murali, the detenus concerned in H.C.P.Nos.2393 and 2404 of 2009 and found implicated in more number of cases than Rajendran, the detenu concerned in H.C.P.No.2405 of 2009. Hence we are convinced that orders of detention challenged in these HCPs are vitiated on the ground of arbitrariness. 11. There is non-application of mind and consideration of extraneous materials by the detaining authority, as rightly contended by the learned counsel for the petitioner in H.C.P.No.2405/2009, in referring to the second adverse case to hold the detenu Rajendran as a goonda. As pointed out supra, the second adverse case, namely Cr.No.670/2009 was registered against eight accused persons (Murali, Kutti @ John Peter, Srinivasan, Annadurai, Murugan, Gurumurthy, Kannan and Chandramouli). Detenu Rajendran does not figure as an accused in the second adverse case. Had the detaining authority stopped with referring the second adverse case in respect of the other two detenus alone such a ground of attack on non-application of mind and consideration of extraneous material would not have arisen. As the detaining authority has chosen to refer the second adverse case also in all the orders of detention impugned in all these HCPs, especially the order of detention relating to the detenu Rajendran, this court is satisfied that the contention raised on behalf of the petitioner in H.C.P.No.2405/2009 that there was non-application of mind and consideration of extraneous material has got to be countenanced. 12. A reading of the grounds of detention in all the three cases will show that stereo type orders were passed in all the three cases. Besides consideration of extraneous material in the case of the detenu Rajendran, as pointed out supra, there is non-application of mind as to who are all the persons arraigned as accused in the second adverse case. It is pertinent to note that all the three adverse cases and the ground case were registered against named accused persons. Very same set of persons, nine in number, have been arraigned as accused persons in the first and third adverse cases and the ground case. The detaining authority, in the grounds of detention annexed to the impugned orders has chosen to name all the nine persons to be the persons accused in the said cases. However, the detaining https://hcservices.ecourts.gov.in/hcservices/ authority has chosen to name Kannan, Murali and Chandramouli alone as the persons accused of committing the offences for which the second adverse case, namely Cr.No.670/2009 on the file of R.9, Valasarawakkam Police Station was registered. The failure to notice how many other persons were accused in the said adverse case, while noticing all the names of the accused persons in the other three cases, shows absence of proper application of mind. The same has also resulted in referring the said case as an adverse case against detenu Rajendran, even though he does not figure as an accused in the second adverse case. This court is satisfied with the substance in the contention raised on behalf of the petitioners that there was non-application of mind on the part of the detaining authority in this regard. 13. The next contention raised on behalf of the petitioners is that the detention orders are vitiated for non- consideration of relevant materials that may amount to pre- detention representation. In this regard the learned counsel for the petitioners relied on a decision of a division bench of this court in D.Uma Maheswari v. Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and Another reported in (2009) 3 MLJ (Crl) 469 in which it has been held, "non-consideration of pre-detention representation would affect order of detention since it has caused prejudice to the interest of detenu." All the detenus, according to the respondents, were arrested on 24.11.2009 and produced before the Magistrate on 25.11.2009 whereupon they were remanded to judicial custody in the ground case as well as the adverse cases. However, there was an allegation made even prior to the passing of the order of detention that the detenu Murali was taken into custody by the police on 18.11.2009 itself and was being kept in illegal custody. A telegram was sent to the second respondent (detaining authority) on behalf of the detenu Murali on 20.11.2009 itself. The said telegram was not referred to and was not at all considered by the detaining authority. There is no reference to the said telegram or to the allegation made on behalf of the detenu Murali that he was kept in illegal custody by the police from 18.11.2009. In addition to the said telegram, there is an averment found in the affidavit filed in a previous HCP, namely H.C.P.No.2097/2009, alleging illegal detention without an order of remand by the Magistrate or any preventive detention order. The respondents in the said HCP, informed the court that the detenus were arrested on 24.11.2009 and remanded to judicial custody on 25.11.2009. Only based on the said representation that the detenus were remanded to judicial custody on 25.11.2009, the previous HCP filed by the wife of the detenu Murali, namely H.C.P.No.2097/2009 was closed. The said order was passed on 30.11.2009 in the above said HCP by a division bench of this court. The impugned orders of detention came to be passed on 14.12.2009, i.e. 14 days after the date of the said disposal of the previous HCP. As such pre-detention representation in the form of telegram sent on 20.11.2009 and the averment made in the https://hcservices.ecourts.gov.in/hcservices/ affidavit filed in the previous HCP (H.C.P.No.2097/2009) ought to have been taken into consideration by the detaining authority before passing orders of detention. The detaining authority failed to make any reference to the said pre-detention representation. In this regard, we are in complete agreement with the view expressed by the earlier division bench in the order cited by the learned counsel for the petitioners and referred to supra. Therefore, this court is convinced with the contention raised on behalf of the petitioners that the non- consideration of the above said pre-detention representation would vitiate the order of detention. 14. Mr.R.Sankarasubbu, learned counsel for the petitioner in H.C.P.Nos.2393/2009 and 2405/2009 has also contended that the orders of detention challenged in the said HCPs are vitiated on the ground of misstatement of facts, consideration of extraneous material and non-application of mind regarding the Crl M.P numbers and the cases in which and the courts by which bail orders were granted in favour of the detenus. It is the submission of the learned counsel that all the detenus got orders of bail from learned Principal Sessions Judge at Chennai in the ground case alone; that bail orders were obtained in favour of the detenus in the first and third adverse cases, namely Cr.Nos.778/2009 on the file of R.7, K.K.Nagar Police station and Cr.No.1051/2009 on the file of R.6, Kumaran Nagar police station from the court of the XXIII Metropolitan Magistrate, Saidapet, Chennai, whereas the bail order in respect of the second adverse case in Cr.No.670/2009 on the file of R.9, Valasarawakkam police station was obtained from the learned Judicial Magistrate-1, Poonamallee and that the detaining authority has erroneously observed against the facts as if bail orders were obtained in the third adverse case from the Principal Sessions Judge, Chennai. It is the further contention of the learned counsel for the petitioners in the said HCPs that the detaining authority has fabricated a bail order in the third adverse case and included the same in pages 55 to 60 of the paper book. In support of the said contention, the learned counsel for the petitioners in H.C.P.Nos.2393 and 2405 of 2009 relied on a decision of the Full Bench in Hidaya Banu & Another v. State of Tamil Nadu & Ors. Reported in 2002 (2) MWN (Cr.) F.B.27, wherein it