In the High Court of Judicature at Madras Dated: 14..7..2009 Coram: The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr.Justice R. SUBBIAH Habeas Corpus Petition No. 519 of 2008 Arunachalam ... Petitioner Vs. 1. State of Tamil Nadu Rep. by the Secretary to Government Public (L&OP) Department Fort St. George, Chennai-9. 2. The Union of India Rep. by its Secretary Ministry of Home Department Department of Internal Security Krish Bhavanam North Block, New Delhi 3. The District Collector and District Magistrate Theni ... Respondents Petition under Article 226 of the Constitution of India for the issuance of a Writ of Habeas Corpus to call for the records relating to the order of detention No. 01/NSA/2008 dated 23.3.2008 in passed by the Second respondent herein and quash the same as illegal and direct the respondents to produce the body of the person of the detenu namely Mahalingam @ Nondi Mahalingam @ Palani @ Nondi Palani, now detained under Section 3(3) of the National Security Act, 1980 in the Special Prison, Puzhal, Chennai, before this Court and set him at liberty. For Petitioner .. Mr. R. Sankarasubbu For RR 1&3 .. Mr. N.R. Elango, Addl.P.P. For R2 .. Mr. M. Gopikrishnan, SCGC https://hcservices.ecourts.gov.in/hcservices/ ORDER (made by ELIPE DHARMA RAO, J.) The petitioner, friend of the detenu - Mahalingam @ Nondi Mahalingam @ Palani @ Nondi Palani, challenges the order of detention dated 23.3.2008 passed by the third respondent detaining him under Section 3(3) of the National Security Act, 1980 (Central Act 65/1980) read with the orders issued by the Tamil Nadu Government in G.O. Ms. No. 47, Public (Law & Order – F) Department dated 08.01.2008 after he was identified as a CPI (Maoist) Extremist offender. 2. Heard Mr. R. Sankarasubbu, learned counsel for the petitioner, Mr. N.R. Elango, learned Additional Public Prosecutor for the respondents 1 and 3 and Mr. M. Gopikrishnan, learned Additional Central Government Standing Counsel representing the second respondent. 3. On information that the detenu Mahalingam @ Nondi Mahalingam @ Palani @ Nondi Palani along with four others, who are members of CPI Maoist party, approached people staying in lonely houses and farm houses armed with rifles and bombs for canvassing their ideologies based on armed revolution against the democratic ruling Governments by forming people army and fighting against the Government by killing persons who protest their activities and creating panic and fear among the public and distributed the party pamphlets to the people, on 19.12.2007 at 8.30 hours, the local Police of Theni District and Special Task Force personnel surrounded them, who stayed in a tent put by them in the sugarcane field of one Raman and they attacked the Police party by throwing bombs and firing on them thereby causing injuries to 5 Special Task Force personnel as against which the Police party also opened fire on them after due warning in which some of them sustained bleeding injuries. On the written complaint of the Inspector of Police, Special Task Force, a case was registered in Varusanadu Police Station Crime No. 111/07 under Sections 143, 332, 307 IPC r/w Sections 3, 25(1-B) and 27 of the Arms Act, 1959, Sections 3 to 5 of the Explosive Substances Act, 1908 and Section 17(1)(a) of the Criminal Law Amendment Act, 1908 against the five accused. The secured Balamurugan and Yogesh Madhan were produced before the Judicial Magistrate, Andipatty on 20.12.2007 and were remanded to judicial custody. The injured accused Mahalingam, Muruganandam and Maruthu @ Leninkumar were also remanded to judicial custody on 20.12.2007 while they were undergoing treatment in the Government Rajaji Hospital, Madurai. The seized weapons were also produced before the Court of Judicial Magistrate, Andipatty and the case was transferred from the Superintendent of Police, Theni to the Inspector of Police, Q Branch CID for further https://hcservices.ecourts.gov.in/hcservices/ investigation. The accused Nondi Mahalingam was ordered under police custody from 31.12.2007 to 02.01.2008 and again, he was produced before the Designated Court No. II, Chennai, on 28.01.2008 in Dharmapuri RP Cr. No. 80/92 under Sections 120(B) IPC, 3(2), 4 to 6 of TADA (P) Act, 150(2)(A) of the Indian Railway Act, Sections 3 to 5 of the Explosive Substances Act and 212 IPC till 27.02.2008 as harboured one Sundaramurthy, the proclaimed offender and was subsequently remanded till 03.4.2008. The first respondent District Collector and District Magistrate, Theni, on arriving at subjective satisfaction that Mahalingam @ Nondi Mahalingam is a member of the banned CPI (Maoist) party and he along with his associate members of the Communist Party of India (Maoist) marched on the Western Ghats with firearms and met the public canvassing their ideologies based on armed revolution and distributed their party pamphlets, found the compelling necessity to keep him under detention as per the provisions of the National Security Act, 1980 with a view to preventing him from indulging in such activities, which are prejudicial to the public order and accordingly, passed the order of detention that is under challenge, on 23.3.2008. 4. In the grounds of detention, the petitioner, among other grounds, has mainly raised the following grounds :- (i) The detaining authority has not taken into consideration the shooting of Policemen at the detenu and he suffered bullet injuries. (ii) Remand in the hospital is illegal as the detenu has not represented his course. (iii)Delay over one month in considering the pre-detention representation vitiates the order of detention. (iv) The delay in passing the detention order vitiates the detention. (v) There was no valid remand on 20.3.2008 in the ground case. (vi) Family members were not intimated, hence the detention is vitiated. (vii)There is no imminent possibility of his release on the near future. Hence the detention is vitiated. (viii) The grounds of detention is vague as no sufficient material aspects have been found and the detenu has been prejudiced in making the effective representation. https://hcservices.ecourts.gov.in/hcservices/ 5. Learned Additional Public Prosecutor has resisted the aforesaid grounds by placing the relevant materials and by filing the counter. 6. Insofar as the first ground to the effect that detenu was not taken care of after shooting is concerned, learned Addl. Public Prosecutor has stated that after the detenu had sustained injuries, he was immediately given first aid in the local Primary Health Centre and thereafter, treated at Medical College Hospital in Theni and subsequently in Madurai Rajaji Government Hospital. Considering the submission of the learned Addl. Public Prosecutor, we do not think the contention of the counsel for the petitioner is acceptable. 7. Since the ground Nos.2 and 4 regarding remand goes to the root of the matter, it can be dealt with at the later stage of this judgment. 8. The next contention is delay in consideration of the pre- detention representation. From the records produced by the learned Addl. Public Prosecutor, it is apparent that the pre-detention representation dated 21.02.2008 received from the wife of the detenu was considered and rejected and reply of rejection was also communicated by communication dated 20.3.2008. We do not find any delay in disposal of such pre-detention representation. 9. Next contention is regarding delay in passing the order of detention. It is contended by the counsel for the petitioner that though the detenu was arrested as early as on 19.12.2007, the order of detention came to be passed after a period of three months i.e., on 23.3.2008 and, according to him, the delay vitiates the order of detention. In support of the aforesaid contention, he has placed reliance upon the decision of the Supreme Court reported in (2006) 2 SCC (Cri) 418 (RAJINDER ARORA v. UNION OF INDIA AND OTHERS). 10. Learned Additional Public Prosecutor has tried to explain the delay by stating that since the offences committed by the detenu are under the jurisdiction of various officials, it took time for the sponsoring authority to collect the documents and to submit the proposal. Moreover, he has stated that though the detenu was arrested on 19.12.207, he was taking treatment till 29.12.2007 and further, he was under the custody of "Q" Branch till 02.01.2008 and, therefore, there was no delay. 11. Taking into consideration the facts and circumstances of the case, we do not find there is any abnormal delay in passing the order of detention and, therefore, this contention of the petitioner is liable to be rejected. The decision relied on by the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the petitioner in Rajinder Arora v. Union of India and others [(2006) 2 SCC (Cri) 418] is not applicable to the facts of the present case. In the decision of the Supreme Court, the order of detention was passed belatedly after about 10 months of the raid whereas in the present case, the order of detention was passed after a period of about three months. The reasons for the delay as stated above by the learned Addl. Public Prosecutor are convincing and therefore, the contention of the petitioner on this score cannot be accepted. 12. Next it is contended that the family members of the detenu were not communicated about the detention of the detenu. Learned Addl. Public prosecutor has denied the aforesaid contention. From the records produced by the respondents, it is apparent that the wife of the detenu, namely, Smt. Vennila, was informed on 25.3.2008 and, therefore, this contention also fails. 13. The penultimate ground raised by the learned counsel for the petitioner is in respect of imminent possibility of releasing him on bail. From the records, it is apparent that on 20.3.2008, the detenu's bail petition was considered and he was granted bail on executing a bond for a sum of Rs.5,000/- with two sureties. But, due to non-production of sureties, the petitioner was not released on bail. Therefore, the contention of the learned counsel for the petitioner that there was no imminent possibility of the detenu being released on bail does not merit acceptance and it is liable to be rejected. 14. The last contention of the petitioner is that the grounds of detention is vague and in support of such conclusion, he has placed reliance upon the decision of the Andhra Pradesh High Court reported in Pujarla Venkaiah v. District Magistrate, Nalgonda and another [1981 ALTR 104]. 15. From a perusal of the grounds of detention, we do not think the contention of the petitioner's counsel that the facts stated in the grounds of detention are vague, can be accepted. It is well settled that the grounds of detention should be precise but not vague, pertinent but not irrelevant, proximate but not stale and the object is to furnish the detenu all details to make an effective representation. In the present case, the petitioner has failed to establish as to how he was prejudiced in making an effective representation. Therefore, the decision cited by the counsel for the petitioner is not applicable to the present case. 16. The foremost and the ground on which the petitioner has placed strong reliance is relating to remand in respect of the detenu in the ground case. Learned counsel appearing for the petitioner has https://hcservices.ecourts.gov.in/hcservices/ contended that on 20.3.2008, though the detenu was directed to be produced on 3.4.2008, the detenu was not produced and, therefore, the remand was not a valid remand. In support of the aforesaid contention, learned counsel has placed strong reliance upon the Full Bench decision of this Court reported in Hidaya Banu and another v. State of Tamil Nadu and others) [(2002) M.L.J. (Crl.) 608], including the decisions of this Court in (Elumalai v. State of Tamil Nadu and 2 Others [1983 L.W. (Crl.) 121] and unreported decision in H.C.P.No.878 of 2008, disposed on 30.9.2008. 17. In the Full Bench decision in Hidaya Banu's case (cited supra), the detenu was not produced before the Court due to his admittance in the Government Hospital and remand was extended in his absence and, in the meantime, an order of detention was clamped describing the detenu to be a remand prisoner. The question posed on behalf of the detenu before the Full Bench was whether at the time of passing the order of detention, the detenu was a "remand prisoner". The Full Bench, relying upon several decisions of the Supreme Court as well as this Court, came to the conclusion that since the detenu was not in actual remand, he should not be treated as a "remand prisoner" and on that ground, set aside the order of detention. 18. In the present case, from the materials produced by the learned Addl. Public Prosecutor, it is apparent that by letter dated 19.3.2008, the Superintendent of Prisons had made a request to the remanding Court stating that as the Detenu has to be sent to the Designated Court No.II, Tada Court, Chennai, on 20.03.2008, he could not be produced on 20.03.2008. Accepting such letter of the Superintendent, remand was extended till 3.4.2008. It is not as if wantonly or deliberately the detenu has not been produced before the remanding Court and, therefore, the ratio of the Full Bench decision is not applicable to the facts of the present case. 19. The unreported decision cited supra, which is passed based on the Full Bench decision cited above, is also not applicable to the facts of the present case for the same reasons. 20. The facts in Elumalai's case (cited supra) are entirely different to the facts of the present case as in Elumalai's case remand was not extended due to want of escorts. But non-production of the detenu in the present case is different as he has to be produced before other Court. Therefore, the decision in Elumalai's case is clearly distinguishable and not applicable to the present case. 21. Learned Addl. Public Prosecutor by relying upon the decisions of the Supreme Court reported in Raj Narain v. Superintendent, Central Jail, New Delhi [1970 SCC (Cr.) 543] and Sandip Kumar Dey v. The Officer-in-charge, Sakchi P.S. And others https://hcservices.ecourts.gov.in/hcservices/ [1974 SCC (Cri) 435], stated that the order of remand passed without physical production of the accused would not amount to become invalid and, therefore, the order of detention should not be interfered with. 22. There is no quarrel on the principle that the order of remand passed without physical production of the accused would not make such order invalid. However, the order of remand should not be passed mechanically. In the present case, the order of remand was passed without the physical production of the accused for a valid reason and, therefore, the contention of the petitioner that the remand is illegal or invalid cannot be accepted. 23. The contention of the petitioner that the remand made while the detenu was in hospital is illegal, is only stated to be rejected. While the detenu was under treatment and undisputedly admitted as in- patient and not in a position to be produced before the Court, on medical grounds, remand was extended. Learned Addl. Public Prosecutor has placed the relevant records before us to establish that the detenu was not able to be produced on medical grounds. We are satisfied that on medical grounds, the detenu was not produced before the Court for remand extension and, therefore, this contention is rejected. 24. Among other contentions, the learned counsel for the petitioner has also contended that non-production of R.D.O. Report as it is a vital document, would vitiate the order of detention. Learned counsel has placed reliance upon a Full Bench of this Court in (G. Kalaiselvi v. State of Tamil Nadu, Rep. by Government of Tamil Nadu, Home, Prohibition and Excise Department and another [2007(5) CTC 657]. 25. Learned Addl. Public Prosecutor has refuted the aforesaid contention by stating that the report of the R.D.O. is neither a relied on nor referred to document and, therefore, it has no relevance to the detention order passed against the detenu. 26. In the Full Bench decision, the detenu has specifically asked for a copy of the remand order and in the absence of non- furnishing a copy, the Full Bench has opined that non-production of the copy of the document would vitiate the order of detention. It is no doubt true that when the detenu has made any specific request for supply of certain document, it is mandatory on the part of the appropriate authority to furnish copy of such document. In the present case, the report of the R.D.O., Periyakulam, is not a relied on or referred to document and moreover, the detenu has not made any specific request and further, the R.D.O. Report has no relevance to the order of detention and, therefore, the contention of the petitioner is liable to be rejected. https://hcservices.ecourts.gov.in/hcservices/ For the aforesaid reasons, we do not find any ground to interfere with the order of detention and the Habeas Corpus Petition is liable to be dismissed and accordingly, it is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri 1.The Secretary, Public(Law & Order) Department, Fort St.George, Chennai-600 009. 2.The Secretary, Ministrhy of Home Department, Department of Internal Security, Krish Bhavanam North Block, Neaw Delhi. 3.The District Collector and District Magistrate Theni District, Theni. 4.The Superintendant, Spl. Prison, Puzhal, Chennai. 5.The Public Prosecutor, High Court, Madras. H.C.P. No. 519 of 2008 pkb(co) pmk.20.7.2009. https://hcservices.ecourts.gov.in/hcservices/