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.1652 of 2008 Tmt.Kasthuri … Petitioner vs. 1. The District Collector and District Magistrate, Kancheepuram, Kancheepuram District. 2. The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Chief Secretariat, Fort st. George, Chennai – 600 009. 3. The Superintendent, Central Prison, Puzhal, Chennai. .. 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 the detention order passed by the first respondent herein and made in B.D.F.G.I.S.S.V.No.68 of 2008 dated 15.09.2008, and to set aside the same and to direct the third respondent to produce the body of the detenu Thiru Kora Murugan @ Murugan, now confined in Central Prison, Puzhal, Chennai and set him at liberty. For Petitioner : Mr.Ganesh Rajan for T.S.Srinivasan For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R S.TAMILVANAN, J. This petition has been filed against the order of detention, dated 15.09.2008 made in B.D.F.G.I.S.S.V.No.68 of 2008 passed by the District Collector/detaining authority, Kancheepuram under Section 3 (1) of the Tamil Nadu Prevention of Dangerous Activities of https://hcservices.ecourts.gov.in/hcservices/ Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders and Slum-Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) and to set the detenu at liberty. 2. The petitioner who is the mother of the detenu has challenged the order of detention on various grounds. As per the impugned detention order dated 15.092008, it is seen that there is one adverse case registered against the detenu in Crime No.129 of 2008 on the file of the Otteri Police Station under Sections 147, 148, 341 and 302 IPC. As per the ground case on 02.08.2008 at about 14.00hrs. When the defacto complainant Muthu along with his friend was walking on Vandalur lake bund towards Vandallur, the detenu, who came there, threatened the defacto complainant at the point of knife and took away Rs.270/- from his shirt pocket and also assaulted him by Aruval, which was averted by immediately the complainant by bending and thus escaped from the attack. It is further alleged that associates of the detenu hit with the wooden logs on the road and showed their aggressions and thereby committed offence. Subsequently, the defacto complainant went to Otteri Police Station and lodged a complaint at about 16.00hrs., on the said date. Based on the complaint, a case in Otteri Police Station Crime No.130 of 2008, under Sections 147, 148, 294(b), 397, 307 IPC, was registered against the detenu and other accused. 3.Mr.Ganesh Rajan, learned counsel appearing for the petitioner attacked the detention order, on the ground that it is an order passed on the foisted case. According to the petitioner, the order of detention was not intimated to the family members of the detenu. It is further stated by the petitioner that on 03.8.2008, when her son, the detenu, was in her house along with other family members, police personnel attached to Otteri Police Station came there and forcibly took him to police station. Then the case was foisted against him. 4.Learned counsel appearing for the petitioner submitted that the detention order is liable to be quashed on the ground of non- application of mind by the detaining authority and for non-compliance of the guidelines of the Apex Court. 5.It is seen from the arrest report prepared under Section 62 of the Cr.P.C. available at Page No.113 B of the typed set that the detenu was arrested on 03.08.2008 at 15.00hrs., near the pathway of Vandallur lake in connection with Crime No.129 of 2008. But as per the arrest report prepared under Section 62 Cr.P.C., available at Page No.175 of the typed set supplied, the detenu was arrested on 03.08.2008 at 15.00hrs., near Vandallur Railway gate in connection with Crime No.130 of 2008. As contended by the learned counsel appearing for the petitioner, the detenu could not have been arrested on the same day, at the same time in two different places, as stated by the respondent in the aforesaid two documents that are https://hcservices.ecourts.gov.in/hcservices/ available in the typed set supplied to the detenu one at Page No.113 B and another at Page No.175. 6. There is no acceptable reason from the learned Additional Public Prosecutor for the vital contradiction with regard to the place of arrest of the detenu, though the same Inspector of Police, Guduvancherri Police Station is said to have prepared both the arrest reports at the same time and place. Had the detenu been arrested at the same place, on the same date, at the same time, as alleged by the respondent, the documents available at Page No.113 B and 175, should state only the same place, as the place of arrest. 7. On considering the vital contradiction with regard to the place of arrest of the detenu, on the same date and the time in different places, the plea of the petitioner that her son, the detenu was taken by the police officials of Otteri Police Station on 03.08.2008, cannot be ignored, since the vital self contradiction of the relied on documents cut the root of the ground case. 8. The Hon'ble Supreme Court in D.K.Basu vs. State of W.B, reported in 1997 SCC (Cri) 92 has categorically given guidelines to be followed in the cases relating to preventive detention, which read as follows : "We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures : (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or https://hcservices.ecourts.gov.in/hcservices/ interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time,place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his / her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Heal Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to https://hcservices.ecourts.gov.in/hcservices/ the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board." 9. As per various decisions of the Hon'ble Apex Court, the following factors are considered as violation in preventive Detention Cases : a) Non-intimation of the detention order to any of the family members or friends within a reasonable time. b) Delay in considering the representation made by the detenu or any other person interested, on behalf of the detenu. c) Non-supply of copies of material documents relied on by the detaining authority. d) Furnishing illegible copies of documents, so as to prevent detenu from making effective representation as contemplated under the Act. e) Non-furnishing of copies translated in the language known to the detenu for making effective representation. f) Non application of mind by detaining authority in having subjective satisfaction while passing the order. 10. The aforesaid guidelines of the Hon'ble Supreme Court should be scrupulously followed by the detaining authorities, in order to safeguard the personal liberty of any individual, as against illegal detention, in view of the fundamental right guaranteed for life and personal liberty under Article 21 of the Constitution. 11.We are of the view that non-consideration of the vital contradiction, with regard to the place of arrest available at Page Nos.113 B and 175 of the Booklet supplied to the detenu is nothing but non-application of mind in passing the detention order, which vitiates the detention order. It is not in dispute that a relied on document available at Page Nos.69 to 71 of the typed set is only in https://hcservices.ecourts.gov.in/hcservices/ English. However, inspite of the request made by the detenu, translated copy of the same in Tamil, language known to the detenu the same was not furnished to him, so as to enable the detenu to make effective representation. 12. Learned counsel appearing for the petitioner also drew the attention of this Court to Page No.118 A, of the Booklet, Arrest Report, a relied on document, wherein, a lot of unauthorised corrections and over writings have been made. Even the date, time and other particulars therein have been arrested in an improper manner. If a document is not legible, a typed clean copy should be furnished for perusal. It is seen that after making unauthorised corrections and over writings, Xerox Copy of the document has been prepared. We are of the view that the unhealthy practice of making unauthorised corrections must be deprecated. 13. Hence, for all the above reasons, we are of the considered view that the detention order is liable to be set aside, on the ground of non-application of mind by the detaining authority and non- compliance of the guidelines of the Hon'ble Apex Court, in various decisions. 14. In the result, the Habeas Corpus Petition is allowed and the detention order dated 15.09.2008 passed by the first respondent is set aside. 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 Smi To 1. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KANCHEEPURAM, KANCHEEPURAM DISTRICT. 2. THE SECRETARY TO GOVERNMENT, STATE OF TAMIL NADU, HOME, PROHIBITION AND EXCISE DEPARTMENT, FORT ST. GEORGE, CHENNAI – 600 009. 3. THE SUPERINTENDENT, CENTRAL PRISON, PUZHAL, CHENNAI. 4. THE JOINT SECRETARTY TO GOVT PUBLIC LAW AND ORDER FORT ST.GOERGE,CHENNAI - 9 https://hcservices.ecourts.gov.in/hcservices/ 5. THE PUBLIC PROSECUTOR HIGH COURT, MADRAS 1 cc To Mr.Ganesh Rajan, Advocate, SR.140 H.C.P.No.1652 of 2008 VSV(CO) SRA(28/01/2009) https://hcservices.ecourts.gov.in/hcservices/