IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30-09-2008 Coram : The Hon’ble Mr. Justice ELIPE DHARMA RAO and The Hon’ble Mr. Justice S.TAMILVANAN H.C.P.No.539 of 2008 S.Parthiban … Petitioner vs. 1. The State of Tamil Nadu Rep. by Secretary to Government, Home Department, Secretariat, Chennai – 600 009. 2. The Commissioner of Police Coimbatore City, Coimbatore. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records relating to the detention order passed by the second respondent in C.No.72/G/IS/2007 dated 24.12.2007, set aside the order and set the detenu at liberty. For Petitioner : Mr.S.Swamidoss Manokaran For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R S.TAMILVANAN, J This petition has been filed by the detenu against the order of detention, dated 24.12.2007 passed by the Commissioner of Police / detaining authority, Coimbatore City, under Section 3 (1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders and Slum-Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982). https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner has challenged the order of his detention on various grounds, saying that on 27.11.2007, when he was going for a walk, the police attached to B-8, Variety Hall Road Police Station, Coimbatore, stopped him and took him into custody for some enquiry, however, kept him in the lock-up and then foisted the ground case, as if the petitioner and one Valli were indulging in immoral traffic offences and on the next day evening, the detenu / petitioner alone was taken to court with a warning that he should not make any complaint against the police and then he was remanded to jail. In the grounds, he has further stated that the alleged fine amount had been paid by some other person in the adverse cases and the signatures found in the receipts available at page numbers 9, 23 and 32 of the Paper Book supplied to him are not his signatures. Further, the fine amount register at page number 33 shows the accused name as Saravanan and his father's name was left blank, which fact was not considered by the detaining authority. 3. In the detention order, dated 24.12.2007, three adverse cases under Prohibition of Immoral Traffic Act have been stated. As per the detention order, there are three adverse cases registered against the detenu 1) in Cr.No.237 of 2006 of Chettipalayam Police Station under Sections 3(2) (b), 5(I) (b) & 8 (1) (b) @ 4 (2) (c) and 8 (1) (b) PIT Act, 2) in Crime No. 167 of 2007 of B-5 Singanallur Police Station under Sections 4 (2) (c), 8 (b) PIT Act and 386 IPC and 3) in Cr,No.57 of 2007 of All Women Police Station (West) Coimbatore under Sections 4 (2) (c), 8 (b) PIT Act. In all the cases, the detenu herein has been stated as convicted and sentenced to pay fine amounts as imposed with default sentence. In the first case, in Cr.No.237 of 2006 of Chettipalayam Police Station, fine of Rs.1,000/- was imposed with default sentence. In the second case in Cr.No.167 of 2007 of B-5 Singanallur Police Station, fine of Rs.3,0000/- was imposed with default sentence. In the third case relating to Cr.No.57 of 2007 of All Women Police Station (West), Coimbatore, fine of Rs.200/- was imposed with default sentence. However, the petitioner / detenu has denied his involvement in the alleged crimes. 4. Mr.S.Swamidoss Manokaran, learned counsel appearing for the petitioner has submitted that in all the cases, the petitioner has not paid any fine amount, but somebody has paid the fine amount and singed in the receipts. The petitioner has further stated in the affidavit that at page numbers, 9, 23 and 32 of the paper book supplied to him, xerox copies of the receipts containing signatures of some other persons are seen and according to him, the said signatures are not the signatures of the detenu. 5. As per the ground case, on 28.11.2007 at 12.30 hrs, while the Inspector of Police, Law and Order, B-8, Variety Hall Road Police https://hcservices.ecourts.gov.in/hcservices/ Station, Coimbatore City was at the Police Station, one M.Kuppusamy @ KBS Raja (37) s/o KBS Manian, D.No.344, Edayar Street, Coimbatore appeared at the said police station and preferred a written complaint stating that on 28.11.2007 at 12.00 hrs, while he was standing at Lala Corner Bus stop, Raja Street, Coimbatore to board a town bus, the detenu herein came and induced him as a pimp, committing immoral traffic offence and out of eagerness, the defacto-complainant accepted the offer of the detenu and went along with him to the Avinashi Road fly-over near Roundana, where he could see a woman obscenely dressed, who solicited the defacto complainant for prostitution, but he was not willing. Hence, the detenu threatened by taking a knife and snatched Rs.550/- from the defacto complainant. 6. The learned counsel appearing for the petitioner submitted that though the name of the woman is stated as Valli, she was not produced before the Magistrate, despite the fact that the alleged offence was made out against her also under PIT ACt. The learned counsel submitted that the non-production of the co-accused for remand and the alleged time of occurrence at 12 noon in a public place and the averments about the occurrence would show that it is a foisted case against the detenu. Apart from that, the learned counsel for the petitioner pointed out certain violations of mandatory provisions under the Tamil Nadu Act 14 of 1982. 7. The Hon'ble Supreme Court in D.K.Basu vs. State of W.B, reported in 1997 SCC (Cri) 92 has categorically given the 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. https://hcservices.ecourts.gov.in/hcservices/ (3) A person who has been arrested or detained and is being held in custody in a police station or 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 the Illaqa Magistrate for his record. https://hcservices.ecourts.gov.in/hcservices/ (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." 8. 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. 9. The aforesaid guidelines of the Hon'ble Supreme Court should be scrupulously followed by the detaining authorities, in order to safeguard the liberty of any individual, under detention, since illegal detention is against the fundamental rights guaranteed to any citizen under Article 21 of the Constitution. It is clear and well settled that the paramount object of preventive detention under Act 14 of 1982 is only to prevent the habitual offenders from committing any further crimes, so as to affect the social order. 10. 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. https://hcservices.ecourts.gov.in/hcservices/ 11. It has been held by the Hon'ble Apex Court in T.V.Sravanan vs. State, reported in 2006 (2) SCC 665, at page number 669 as under : "The "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipsi dixit of the detaining authority is not sufficient to sustain the order of detention." Therefore, there should be cogent materials before the detaining authority to decide the imminent possibility of the detenu coming out of bail and the mere averments in the detention order without cogent material is not sufficient for the subjective satisfaction of the detaining authority. 12. The Division Bench of this Court in Latha vs. Secretary to Government, reported in 2005 M.L.J (Cri) 921 has held as follows : "Though the detaining authority has concluded that the detenu has to be detained under Act 14 of 1982 in view of his involvement in number of criminal cases, this Court has no other option except to quash the detention order on the ground that the decision on the representation was not communicated to the detenu within a reasonable time. " 13. In Binod Singh vs. District Magistrate, Dhanbad, reported in 1986 SCC (Cri) 490, the Hon'ble Supreme Court has held as follows : " 7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should https://hcservices.ecourts.gov.in/hcservices/ not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this fact or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democrary in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens." 14. It is an admitted fact that the petitioner / detenu had submitted his representation on 09.01.2008, which was received by the authority on 14.01.2008. Subsequently, remarks were called on 18.01.2008. After receipt of remarks on 31.01.2008, the matter was dealt with by the Under Secretary to Government on 04.02.2008 and subsequently by the concerned Minister on 05.02.2008. The representation of the detenu was rejected on 07.02.2008 and the rejection order was served on the detenu on 09.02.2008, within 25 days after the receipt of the representation and hence, we could find no delay in rejecting the representation made by the detenu. 15. The learned counsel appearing for the detenu submitted that the detention order is vitiated on account of non application of mind by the detaining authority. As per the prosecution case, FIR was registered at 12.30 hours, but as per the observation mahazar, though it was subsequently prepared, it is stated to have prepared at 12.15 hours and in the grounds of detention, the time of registering the case is stated as 16.30 hrs on 28.11.2007. These vital contradictions were not considered by the detaining authority, while passing the order of detention. According to the learned counsel appearing for the petitioner, the ground case is unbelievable and the same has been foisted against the petitioner to detain him under Tamil Nadu Act 14 of 1982. 16. We have carefully gone through the materials available in the paper book supplied to the detenu and found the alleged contradictions are true. As stated in the grounds filed in the form of an affidavit by the detenu, in the remand request available at page number 47 of the paper book, the order available in English is https://hcservices.ecourts.gov.in/hcservices/ totally illegible and not readable. As per the remand request, the detenu and one Valli have been stated as accused 1 and 2, however, in the corresponding order passed by the Magistrate on the same day, only the detenu was remanded. There is no explanation available with regard to the other accused. 17. There is no proper explanation from the learned Additional Public Prosecutor as to how the case was stated to be registered, as per FIR at 12.30 hrs, though the subsequently prepared mahazar shows the time as 12.15 hrs and in the grounds of detention, as contended by the learned counsel appearing for the petitioner, the time of registering the case as stated at 16.30 hrs on 28.11.2007. 18. It is seen, further, that at page number 33, the name of the detenu has been stated as Saravanan and his father's name was left blank. It is not in dispute that the name of the detenu is only Parthiban and not Saravanan, which was not considered by the detaining authority and from the other material available on record, we are able to see that the father's name of the detenu is Saravanan. The time of occurrence and the averments about the manner of occurrence stated in paragraphs 3 and 5 of the grounds of detention are exfacie unbelievable. There is no reason for the non production of the other accused involved in the alleged offence for remand along with the detenu and the grounds of detention show that the alleged co-accused had also involved in committing a crime punishable under the Prevention of Immoral Traffic Act, however, she was not arrayed as accused. 19. For all the above reasons, we are of the considered view that the detaining authority has failed to consider various aspects and circumstances available in the materials produced for passing the detention order. The vital contradictions available in the detention order show the non-application of mind by the detaining authority, which vitiates the detention order. Hence, the detention order is liable to be set aside in the light of the decisions of the Hon'ble Apex Court and this Court referred to above. 20. In the result, the Habeas Corpus Petition is allowed and the detention order 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 https://hcservices.ecourts.gov.in/hcservices/ tsvn To 1. The State of Tamil Nadu Rep. by Secretary to Government, Home Department, Secretariat, Chennai – 600 009. 2. The Commissioner of Police Coimbatore City, Coimbatore. 3.The Superintendent of Central Prison Coimbatore 4.The Joint Secretary to Govt Public (Law & Order) Fort.St.Geogre Chennai-9 5.The Public Prosecutor High court Madras. +1 cc to Mr S.Swamidoss Manokaran Advocate, SR.No.55886 Order in H.C.P.No.539 of 2008 NSM(CO) BK(17/10/2008) https://hcservices.ecourts.gov.in/hcservices/