IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06.01.2009 Coram : THE HON’BLE MR. JUSTICE ELIPE DHARMA RAO AND THE HON’BLE MR. JUSTICE S.TAMILVANAN H.C.P.No.1565 of 2008 Kamala ...Petitioner vs. 1. State by The Secretary to Government Home, Prohibition and Excise Department, Fort St. George, Chennai – 600 009. 2. The Commissioner of Police Greater Chennai, Egmore, Chennai – 600 008. ...Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records pertaining to Memo No.244/BDFGISSV/2008, dated 08.08.2008 passed by the second respondent and quash the same and consequently, direct the respondents herein to produce the detenu by name Suresh @ Karukka Suresh before this Court and set him at liberty. For Petitioner : Mr.T.K.Sampath for M/s. T.K.Sampath Associates For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R S.TAMILVANAN, J The Habeas Corpus Petition has been filed, challenging the order of detention, dated 08.08.2008 passed by the second respondent herein, detaining the husband of the petitioner a "Goonda" as per Section 2 (f) of the Tamil Nadu Act 14 of 1982. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner is the wife of the detenu, Suresh @ Karukka Suresh, who was arrested and detained under Tamil Nadu Act 14 of 1982. As per the impugned order, five adverse cases have been registered against the detenu, apart from the ground case, registered on 30.07.2008. 3. As per the ground case, on 30.07.2008, at about 8.45 p.m, the detenu had gone to the canteen run by the defacto complainant, Subbaya at No.20, Thayar Sahbi Street, Ellis Road, Chennai – 2 and after taking tiffin, he did not pay money for the tiffin he ate. While the defacto complainant demanded money payable for the tiffin, the detenu threatened him, then strangulated the neck of the defacto complainant and also voluntarily took away cash of Rs.200/- and a cellphone from his shirt pocket. Based on the complaint given by the defacto complainant, a case in Cr.No.555 of 2008, on the file of the D1 Triplicane Police Station under Sections 341, 323, 427, 392, 397 and 506 (ii) IPC was registered. As per the detention order, it is stated that the detenu, during the occurrence brandishing a knife and threatened the defacto complainant and the public. Police personnel, who were on beat duty have noticed the occurrence and surrounded the detenu at the spot with the help of public available there and also retrieved the knife from the detenu. Then, he was produced before the XIII Metropolitan Magistrate, Saidapet, Chennai and was remanded to prison till 12.08.2008. 4. The Detaining Authority, considering the materials placed before him, having satisfied that the detenu is habitually committing crimes and also acted in a manner prejudicial to the maintenance of the public order, branded him as a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, and accordingly, passed the impugned detention order, which is under challenge before this Court, by way of this Habeas Corpus Petition. 5. Mr.T.K.Sampath, learned counsel appearing for the petitioner submitted that the case has been foisted against the detenu for the purpose of detaining him under Act 14 of 1982 and the learned counsel attacked the impugned order on various grounds. 6. The learned counsel for the petitioner drew the attention of this court to the FIR, wherein the time of occurrence is stated as 20 hrs on 30.07.2008 and the FIR was registered at 20.45 hrs on the said date. But in the detention order, the time of occurrence is stated as 20.45 hrs, however, the same was not considered by the Detaining Authority, which amounts to non-application of mind in passing the detention order. According to him, the pre-detention representation made by the petitioner, wife of the detenu, was not considered till date, though it is a Constitutional mandate. The learned counsel appearing for the petitioner further submits that though the detention order was passed on 08.08.2008, the grounds of detention and the copies of the materials relied on by the Detaining https://hcservices.ecourts.gov.in/hcservices/ Authority were supplied to the detenu only on 14.08.2008, after the period of 5 days and in fact, it was served only after a lapse of seven days. 7. As per the seizure mahazar available at page number 82 of the booklet, only an amount of Rs.200/- was said to have been recovered from the detenu Suresh @ Karukka Suresh and other incriminating material was said to have been recovered from him under the seizure mahazar. But in the statement given under Section 161 of Cr.P.C, the defacto complainant has stated that during the occurrence, the detenu had strangulated him and taken his cellphone and Rs.200/- from his shirt pocket and also threatened him and others by showing a knife. But, as contended by the learned counsel appearing for the petitioner, neither the alleged cellphone said to have been taken from the defacto complainant by the detenu, nor the knife, said to have been used by him to threaten the public were recovered from him, though as per the prosecution case, the detenu and others were caught red handed by the police officials, who were on beat duty, with the help of the public. As per the arrest memo, the detenu was arrested at 21 hrs at D1 Police Station on 30.07.2008, but as per the seizure mahazar, the amount of Rs.200/- alone was recovered from the detenu on 30/31.07.2008 at 01.10 hrs. 8. As per the prosecution case and the available materials, the detenu was apprehended at the scene of occurrence itself. There is no acceptable reason from the prosecution, as to why the alleged knife and the cellphone, said to have been taken away by him from the defacto-complainant were not recovered from the detenu at the scene of crime or afterwards. Though, as per the arrest memo, he was brought to the police station and arrested at 21 hrs, even the cash of Rs.200/- was not recovered from him, either at the scene of crime or when he was brought to the police station, at 21 hrs on 30.07.2008. But strangely, the amount of Rs.200/- alone was said to have been recovered at 01.10 hrs on 30/31.07.2008. Further, he was produced for remand before the XIII Metropolitan Magistrate, Saidapet, Chennai only on 31.07.2008 at 5.45 p.m and for the inordinate delay, there is no satisfactory explanation from the respondents. 9. Mr.N.R.Elango, learned Additional Public Prosecutor submitted that the impugned order was passed by the Detaining Authority, only after having arrived at a subjective satisfaction. However, there is no satisfactory explanation for various vital contradictions, as discussed by us above in this order, from the prosecution. 10. The learned counsel appearing for the petitioner, in support of his contentions, relied on the decision in P.Kulanthaivel vs. The District Collector and District Magistrate, Villupuram & another, reported in 2008-2-L.W (Crl) 921, wherein it has been held https://hcservices.ecourts.gov.in/hcservices/ that though the report given by the sponsoring authority refers only to two cases; but the detaining authority has referred to five adverse cases in the detention order, which would clearly cast a doubt as to how these particulars in respect of the material records were furnished, which would indicate that the detaining authority has not scrutinised the records properly and has passed the order mechanically. The Division Bench of this Court held that the said failure on the part of the detaining authority would clearly be indicative of non-application of mind. 11. The Hon'ble Apex Court in R.Kalavathi vs. State of T.N. and others, reported in 2006 (3) SCC (Cri) 11, has held that in order to attract an action in terms of Section 3(1) of the Tamil Nadu Act 14 of 1982, the detenu must be one, who is a "goonda" as defined under Section 2(f) of the Act. It has been made clear that though in other preventive detention laws, even a single act which has the propensity of affecting the tempo of life and public tranquillity, that would be sufficient for detention, being an act prejudicial to the maintenance of public order and for the purpose of the Act, the detenu has to be a "goonda" as defined under Section 2(f) of the Act and accordingly a "goonda" means a person, who habitually commits offences. 12. In the decision, Tushar Thakker vs. Union of India, reported in AIR 1981 SC 436, the Hon'ble Supreme Court has held that the detenu has a right under Article 22(5) of the Constitution, to be furnished with copies of all the relied upon documents / materials for passing order of detention, within reasonable time. Unreasonable delay is prejudicial to the detenu's right to make an effective representation and as such, inordinate delay in supply of copies of the relied on documents / materials to the detenu is violative of the constitutional right, guaranteed under Article 22 (5) of the Constitution of India. Similarly right of intimation to any family member or friend about the detention, without causing any delay, is also the duty of the authority in safeguarding the right of the detenu, as guaranteed under the Constitution. 13. It has been clearly ruled by the Hon'ble Apex Court in A.Shanthi vs. Govt. of T.N., reported in 2006 (9) SCC 711, that in order to pass the order of detention, subjective satisfaction of the detaining authority is a prerequisite. If the relevant materials placed before the detaining authority are not properly considered, to have subjective satisfaction, it would be construed as non- application of mind, which vitiates the detention order. 14. Had the Detaining Authority considered all the materials property to arrive at subjective satisfaction, the vital contradictions referred to above could have created serious doubt in his mind about the alleged occurrence and the non-consideration of the same should be construed only as non-application of mind by the https://hcservices.ecourts.gov.in/hcservices/ Detaining Authority. In the instant case, in the FIR relating to the ground case, though the time of occurrence is stated as 8. p.m and the FIR was said to be registered at 8.45 p.m, the Detaining Authority has stated that the occurrence had taken place at 8.45 p.m. As per the averments of the FIR and the statement of the defacto complainant, the detenu had taken away with him the cellphone and Rs.200/- from the shirt pocket of the defacto complainant and also threatened the detenu and the public by showing a knife and the detenu and others were apprehended at the scene of crime by the police party. However, the allegedly taken cellphone from the shirt pocket of the defacto complainant and the knife, said to have been used by the detenu were not recovered from him. But, the same were recovered only from the co-accused, as per the materials available on record. As contended by the learned counsel for the petitioner, the vital contradictions cuts the root of the case. Though, as per the arrest memo, the detenu was arrested at 9 p.m, as per the seizure mahazar available at page number 82, only an amount of Rs.200/- was recovered from the detenu at 01.10 hrs on 30/31.07.2008, for the reasons best known to the sponsoring authority and he was also not produced before the Judicial Magistrate, within a reasonable time, though the Magistrate Court is situated in a nearby place. The Detaining Authority has not verified all these vital contradictions, before passing the impugned detention order. 15. Considering the vital contradictions as discussed above, we are of the view that the impugned order has to be quashed, on the ground of non-application of mind of the detaining authority, in passing the detention order, hence, the same is liable to be set aside. 16. In the result, the Habeas Corpus Petition is allowed and the detention order is set aside and the detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar tsvn To 1. THE SECRETARY TO GOVERNMENT GOVERNMENT OF TAMIL NADU, HOME, PROHIBITION AND EXCISE DEPARTMENT, FORT ST.GEORGE, CHENNAI-9. https://hcservices.ecourts.gov.in/hcservices/ 2. THE COMMISSIONER OF POLICE GREATER CHENNAI, EGMORE, CHENNAI-8. 3. THE JOINT SECRETARY TO GOVT. PUBLIC (LAW & ORDER), FORT ST.GEORGE, CHENNAI-9. 4. THE SUPERINTENDENT CENTRAL PRISON, PUZHAL, CHENNAI-66. 5. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. Order in H.C.P.No.1565 of 2008 VSV (CO) GSK 23.01.2009. https://hcservices.ecourts.gov.in/hcservices/