IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.08.2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.2933 of 1997 P.Gowtham ... Petitioner Vs. 1. Senior Inspector of Police, Narcotic Cell C.B.C.I.D., Mumbai-1. 2. A.V.Mathi ... Respondents Writ Petition is filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus, directing the respondents to pay adequate compensation of Rs.5,00,000/- by handing over the body of Pichayya Anthony Cruz after holding a postmortem at Government Headquarters Hospital, Tuticorin. For Petitioner : Mr.R.Sankara Subbu For 1st Respondent : Mr.S.Sivashanmugam, Government Advocate For 2nd respondent : No appearance O R D E R Claiming compensation for the illegal detention, custodial, torture, consequential death and the other alleged human rights violations caused to the father of the petitioner one Mr.Pitchaiah Antony Cruz, the petitioner has come forward with this Writ Petition. 2. The background facts of the case are as follows: The petitioner is one of the sons of Mr.Pitchaiah Anthony Cruz (hereinafter referred to as 'the deceased'). The deceased was a resident of No.32, Santhai Road, Tuticorin-2 in the State of Tamil Nadu. It is alleged that the deceased was once detained under the COFEPOSA Act and he was also involved in other criminal activities. While so, the Deputy Commissioner of Police, Narcotic Cell, C.B.C.I.D., Mumbai-1 registered a case in Crime No.18/1997 under Sections 8(c) read with Sections 20 and 29 of the NDPS Act against three persons as they were found in possession of Hashish. During investigation on the basis of the confession of one of the accused, it came to light that the deceased had involvement in the crime. Therefore, the Deputy Commissioner of Police, Narcotic Cell, https://hcservices.ecourts.gov.in/hcservices/ C.B.C.I.D., Mumbai gave permission to one Mr.Tayade, Deputy Inspector of Police along with few other police personnel to come to Tamil Nadu to apprehend the deceased. Based on the said permission letter given by the Deputy Commissioner of Police, Mr.Vadmare, the Sub-Inspector of Police, Narcotic Cell, C.B.C.I.D., Mumbai came down to Tamil Nadu. On a request made by the 1st respondent, the Superintendent of Police, CBI., Special Crime Branch, Tamil Nadu instructed the 2nd respondent Mr.A.V.Mathi, a Sub-Inspector of Police, to assist the 1st respondent to identify the deceased. Accordingly, he was identified by him. He was taken into custody on 20.2.1997 for the purpose of interrogation by Mr.Vadmare. Then, he was taken to Mumbai and kept in the custody of the police. He was produced before the jurisdictional court in Mumbai on 26.2.1997 and he was accordingly remanded to judicial custody. Then, a request was made to the Court seeking police custody. Accordingly, the court granted police custody until 6.3.1997. The deceased was therefore brought back to the police station and kept in the Azadmaidan Police Station lock-up. On 1.3.1997 at about 6.00 a.m. one Mr.Sunil Atmaram Sable, a Police Constable on duty in Azad Maidan Police Station found the deceased in unconscious state in the police lock-up of the said Police Station. He reported the same to one Mr.Jaisingh Mare, a Head Constable, who in turn informed the same to the Night Police Inspector Mr.Ansari. Thereafter, he was taken to G.T. Hospital where the Doctors declared him dead. Regarding the said death, a case in ADR.No.69/97 was registered on the file of the Azad Maidan Police Station at Mumbai. Inquest was held and thereafter, the body was sent for autopsy. 3. A team of three Doctors, by name, Dr.Balchandra Gopinath Chikhalkar, Doctor Walter Vaz and Doctor Tasgoonkar conducted autopsy on the body of the deceased. During postmortem, they did not find any external or internal injury on the body of any kind. However, they found that the deceased had Chronic Obstructive Lung Disease with lever abscess. The Doctors opined that the death was due to the said natural disease. 4. Thereafter, the body was flown to Tamil Nadu, handed over to the family members of the deceased. The petitioner, in those circumstances filed two Writ Petitions before this Court, one in W.P.No.5034 of 1997 praying for a direction to the C.B.I. to conduct investigation into the death of the deceased and the other is the present Writ Petition. 5. In the said Writ Petition No.5034/1997, this Court passed an interim order directing the C.B.I. to make investigation into the cause of death of the deceased and to report. Accordingly, the Superintendent of Police, C.B.I., Special Crime Branch, Mumbai registered a case and held extensive enquiry. The Superintendent of Police has submitted a report in PE.1/S/2006-Mum, dated 20.8.2007 to this Court. In the said report in paragraph No.25, he has stated as follows: ""25. From the preceding paras, the following findings clearly emerge: (a) that deceased Pitchaiah Antony Cruz was identified by one of the co-accused at Tuticorin. As such he should https://hcservices.ecourts.gov.in/hcservices/ have been arrested by the police there and taken on transit remand for bringing him to Mumbai. This, however, was not done. (b) that deceased Pitchaiah Antony Cruz was lawfully arrested in Crime No.18/99 of Narcotics Cell, CB.CID. In Mumbai. However, no medical examination of the deceased was got done either prior or after the arrest which is a gross irregularity and against the spirit of law. © that the cause of death of deceased accused Pitchaiah Antony Cruz was natural but unfortunately in police custody." In view of the said report submitted by the Superintendent of Police, CBI, Special Crime Branch, Mumbai, the Writ Petition No.5034/1997 was disposed of as no more direction need be issued to the C.B.I. to hold any more investigation. 6. In the present case, the prayer of the petitioner is two fold. The first prayer is for a direction for payment of compensation of Rs.5 Lakhs and the second prayer is to hand over the body of Pitchaiah Anthony Cruz after holding postmortem at Tuticorin Government Headquarters Hospital. The second part of the prayer has become infructuous and therefore no relief could be granted in respect of the same. 7. From all the facts narrated above, it could be culled out that what remains now is the question of granting compensation to the petitioner as prayed for in this Writ Petition. 8. It is contended that the deceased was taken into illegal custody by the 1st respondent police on 20.2.1997, kept in illegal custody till 25.2.1997, shown arrested only on 25.2.1997 as though he was arrested only on that day, produced before the jurisdictional court on 26.2.1997 and no treatment whatsoever was given to him between 20.2.1997 and 26.2.1997 though he complained of acute asthma. Even after 26.2.1997, while he was suffering from asthma in a very bad condition, he was not taken to hospital for treatment and thus, he died on 1.3.1997 while in police custody. He would further contend that the death of the deceased was due to the mental agony, which is a form of custodial torture on the part of the 1st respondent. The deceased was aged about 57 years at the time of remand. The petitioner and other family members have been put to lot of mental agony. For all these things, the petitioner would pray for compensation to the tune of Rs.5 Lakhs. 9. In the counter filed by the 1st respondent, it is admitted that he was taken into custody on 20.2.1997 itself at Tuticorin. But the counter of the 1st respondent would state that he was not arrested on 20.2.1997, but he was only taken for enquiry purposes. It is further stated that with the available train facility, the 1st respondent could reach Mumbai only on 25.2.1997. It is also alleged that during interrogation at Mumbai, while in custody, he gave a confession admitting his involvement in the crime. Therefore, according to the 1st respondent, he was arrested on 25.2.1997 only and thereafter, within 24 hours from such arrest, he was produced before https://hcservices.ecourts.gov.in/hcservices/ the jurisdictional Court on 26.2.1997. He was remanded to judicial custody by the court. Thereafter, on a request made by the 1st respondent for custodial interrogation, police custody was granted and accordingly, he was brought to the police station and kept in the lock-up. It is further alleged that on 1.3.1997, in the early morning, he was found in unconscious state and thereafter, he was taken to the hospital where he was declared dead. In a nutshell, it is stated that there was no custodial torture and there was no violation of human rights in any form. Mr.S.Sivashanmugam, learned Government Advocate appearing for the 1st respondent, would submit that the deceased was given treatment also for asthma. Thus, according to him, since there was no violation in any form of the human rights to the deceased, the petitioner is not entitled for compensation. It is further submitted by the learned Government Advocate that the deceased was involved in several crimes. He was suffering from very acute asthma. For all these reasons, the learned Government Advocate would submit that the Writ Petition deserves to be dismissed. 10. I have considered the rival submissions made on either side and also perused the records carefully. As a matter of fact, the 1st respondent has produced the Xerox copies of the Case Diary relating to Crime No.18/1997 on the file of the Narcotic Cell and the connected papers for perusal of this Court which I have done promptly. 11. At the outset, I have to state that arrest, in its legal sense does not mean that such arrest has to be made by making appropriate record for the same. Keeping a person under the control of a police officer, thereby curtailing his movement itself amounts to arrest as held by the Honourable Supreme Court on several occasions. Though it is now sought to be stated by the 1st respondent that on 20.2.1997, the deceased was not arrested, in my considered opinion, in legal sense, he was arrested on 20.2.1997 at about 1.00 p.m. It is not as though the deceased was not wanted for arrest in the case. Having fully convinced that the deceased was involved in the crime in Crime No.18/1997 after getting prior permission from the Superior Officer, the 1st respondent came down to Tamil Nadu and then after seeking the help of the local police and with the written permission, he took the 2nd respondent to identify the deceased. This was only for the purpose of arresting the deceased in connection with the said Crime Number. Thereafter, according to the local police, namely, the 2nd respondent, he was arrested at about 2.00 p.m. on 20.2.1997. The 2nd respondent in his statement to the Superintendent of Police, CBI, Mumbai has said that the deceased was taken to the local police station. Proper entry in the General Diary was made and thereafter, the 1st respondent left for Mumbai with the deceased at 4.05 p.m. This fact is also not disputed now before this Court. Therefore, it is crystal clear that the deceased was taken into custody and he was taken to Mumbai in connection with Cr.No.18/1997 of Narcotic Cell, C.B. C.I.D., Mumbai. 12. But it is not explained to the Court as to why the procedure contemplated in Section 167 of the Cr.P.C. was not followed by the 1st respondent inasmuch as the 1st respondent failed to produce the deceased before the nearest Magistrate in Tuticorin for getting a judicial order of remand. After so arresting the deceased and before https://hcservices.ecourts.gov.in/hcservices/ taking into Mumbai, from the records, there is no indication that the 1st respondent, however intimated the family members of the deceased that he was taken into Mumbai in connection with the said case and about the place where he would be detained during custody. This is yet another serious violation of the direction issued by the Honourable Supreme Court in D.K.Basu Vs. State of West Bengal reported in 1997 SCC (Crl.) 92. 13. It is stated now that the 1st respondent could reach Mumbai only on 25.2.1997. Absolutely, there is no material as of now to show as what was the mode of convenience and at what time they reached Mumbai. Assuming that the deceased and the 1st respondent along with other police officials reached Mumbai on 25.2.1997 and thereafter, he was legally arrested on the same day, absolutely, there is no material to show that such arrest was atleast at that point of time intimating to the relatives of the deceased. However, the learned Government Advocate would produce a letter said to have been written by the 1st respondent to the Superintendent of Police, Tuticorin, who in turn informed the relatives of the deceased about his arrest. In my considered opinion, this will not satisfy the legal requirements. Thus, it is crystal clear that the petitioner was kept in illegal custody till 25.2.1997 without the authority of law. 14. Now, there is no dispute that the deceased was suffering from asthma. In the confession said to have been recorded from the deceased on 25.2.1997, it is stated as though the deceased told them that he was suffering from asthma and he was also regularly undergoing treatment. Despite the same, it is not known as to why he was not taken for treatment in the hospital at least while he was in police custody as per the orders of the jurisdictional Court. 15. Now, coming to the death of the deceased, three Doctors were conducted Postmortem on the body of the deceased and opined that the death is due to natural disease. They did not notice any injury either external or internal on the body of the deceased. Therefore, it cannot be held that the death was caused by the 1st respondent by causing any violence on the deceased. 16. The learned Counsel for the petitioner would submit that keeping a person at such a long distance without informing his relatives and without even informing him about the grounds for his arrest and without giving treatment to him would have caused enormous mental torture and that would have been the inducing factor which resulted in the death of the deceased. Though this argument is some what attractive, I am not persuaded by the same. The Doctors have not at all opined that due to the mental torture meted out to him, the cause of death would have been aggravated. When such medical opinion is available, it is too hard to accept the contention of the learned Counsel for the petitioner. 17. The learned Counsel for the petitioner would further submit that not even a legal assistance was provided to the deceased as soon as he was arrested. The learned Counsel would submit that the deceased did not know Marathi or Hindi, which is commonly spoken in the State of Maharashtra. He is a Tamilian and knows Tamil only. In such circumstances, I am also of the view that the deceased would https://hcservices.ecourts.gov.in/hcservices/ have suffered mental agony, but what I have stated in the previous paragraphs that there is no material even to suggest that such mental agony has aggravated the cause which resulted in the death of the deceased. Therefore, for the mental agony caused to the deceased in the State of Maharashtra, the 1st respondent is liable to pay compensation. 18. To sum up, I have to state that the deceased was arrested on 20.2.1997 illegally, the arrest was not intimated to the relatives, the grounds of arrest were not informed to the deceased, he was kept in the illegal custody till 25.2.1997, no legal assistance was given to him, no medical assistance was given to him up to 1.3.1997 and he was put under enormous mental torture. For all these things alone, the 1st respondent is liable to pay compensation. 19. Now coming to the quantum of compensation to be awarded, it is brought to the notice of this Court that the deceased was aged about 57 years and admittedly he was suffering from asthma. It is also not shown that the deceased was earning anything and contributing the same to the members of his family. However, it is seen in the report of the CBI that the Deceased was Barber by profession, that fact is also disputed. In this regard, the learned Counsel for the Petitioner would rely on a decision of the Honourable Supreme Court in Ajab Singh and another Vs. State of Uttar Pradesh and others reported in 2000 SCC (Crl.) 718 where dealing with a case of custodial death, the Honourable Supreme Court has directed the Government to pay Rs.5 Lakhs as compensation. 20. Having regard to all the above, I am of the view that directing the State of Maharashtra to pay a sum of Rs.2,50,000/- as compensation to the family of the deceased shall meet the ends of justice. 21. It is brought to the notice of this Court that earlier this Court by an interim order passed in this Writ Petition, directed the respondents to deposit a sum of Rs.2,50,000/- as an interim measure with a liberty to the petitioner to withdraw half of the said amount. Now it is further brought to the notice of this Court that the State of Maharashtra has deposited Rs.2,50,000/- to the credit of the Registrar General of this Court. The said amount shall be appropriately adjusted towards compensation which is awarded by this Court in this final order. 22. From the records, it could be seen that apart from the petitioner, there are several other legal heirs of the deceased. Therefore, if all the legal heirs make appropriate application to the Registrar General of this Court jointly along with a Legal Heirship Certificate obtained from the Tahsildar concerned, the Registrar General shall pay the said amount of Rs.2,50,000/- to the legal heirs by way of Demand Draft and record the acknowledgment of the same. The petitioner is at liberty to work out any other remedy which is available to him under law. https://hcservices.ecourts.gov.in/hcservices/ 23. In the result, the Writ Petition is allowed in part as indicated above. No costs. The report of the Superintendent of Police, CBCID, SCB, Mumbai shall form part of the records. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar tsi To The Senior Inspector of Police, Narcotic Cell C.B.C.I.D., Mumbai-1. 2. The Registrar General, High court, Madras + 1 cc to the Government pleader SR.62550 W.P.No.2933/1997 NG(CO) Eu 12.10.10 https://hcservices.ecourts.gov.in/hcservices/