IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 10-09-2008 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH H.C.P.No.611 of 2008 Irusammal ... Petitioner Vs. 1. The State of Tamil Nadu Rep. by its Secretary Prohibition and Excise Department Fort St. George, Chennai – 600 009 2. The District Collector and District Magistrate Villupuram District, Villupuram ... Respondents Petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus and call for records relating to the detention order passed by the second respondent dated 05-04-2008 in Memo No.C2/15000/2008 against the petitioner's husband/detenue Ezumalai S/o. Narayanasamy, aged about 47 years, who is now confined at Central Prison, Cuddalore and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For petitioner :: Mr. V. Perarasu for Mr. P. Muthukumar For respondents :: Mr. P. Kumaresan, APP ORDER (Order of the Court was made by Prabha Sridevan, J.) The detenu Ezumalai S/o. Narayanasamy is a boot legger. The petitioner is his wife and she has challenged the order of detention in Memo No.C2/15000/2008 dated 05-04-2008. It is seen from the grounds of detention that there were four adverse cases against the detenu. On 23-03-2008, a complaint was lodged and a case was registered in the Tirukovilur Prohibition Enforcement Wing Cr.No.498 of 2008 under Section 4(1)(aaa), 4(1)(i), 4(1-A) of Tamil Nadu Prohibition Act 1937. This is the ground case. He was produced before the Judicial Magistrate, Sankarapuram and Judicial Magistrate, Tirukovilur (incharge) on 24-03-2008 and he was remanded to judicial custody till 04-04-2008 and the period of remand has been extended. The detenu has also filed a bail application before the Court of the Principal District and Sessions Judge in Crl.M.P.No.4080 of 2008 in Cr.No.498 of 2008. https://hcservices.ecourts.gov.in/hcservices/ 2. The learned counsel for the petitioner would submit that when in Paragraph No.5 of the detention order the detaining authority has recorded that the detenu has filed a bail application and the same is pending it is rather surprising that the detaining authority had thereafter observed that the detenu "may come out on bail by filing a bail application before the same or higher court." The learned counsel submitted that when the bail application is pending, the finding of the detaining authority that the detenu may file a bail application before the same or higher court clearly speaks of non-application of mind. To support his case, the learned counsel for the petitioner produced three orders in H.C.P.Nos.763 of 2006, 217 of 2008 and 69 of 2008. In all these matters a bail application was pending and the detaining authority had observed "I am also aware that it is very likely that he may come out on bail by filing a bail application before the Higher Court or the same Court" or words to the said effect and in all these cases this Court was pleased to quash the order of detention. The learned counsel submitted that because of non-application of mind in the present case the detention order deserves to be quashed. 3. Heard the learned Additional Public Prosecutor. We have gone through the counter and the relevant records. The reason that weighed in the minds of the Division Bench in the earlier cases are fully applicable to the present case. The detaining authority has no reason to observe that a bail application was likely to be filed before the same or higher Court when the bail application filed by the detenu was since pending and therefore, this clearly speaks of non-application of mind. 4. Before parting with this case, we would like to make a few observations. In this context, let us refer to the following judgments: (a) In Union of India v. Paul Manickam,(2003) 8 SCC 342, at page 351 , the Supreme Court observed: 9. The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of the State’s security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. In Icchu Devi Choraria v. Union of India2 this judicial commitment was highlighted in the following words: (SCC p. 538, para 5) “The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. * * * This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of https://hcservices.ecourts.gov.in/hcservices/ detention....” 10. In Vijay Narain Singh v. State of Bihar3 Justice Chinnappa Reddy in his concurring majority view said: (SCC p. 19, para 1 : AIR p. 1336) “... I do not agree with the view that ‘those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires’. It is too perilous a proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters.” “There are two sentinels, one at either end. The legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the legislature have been transgressed.” (SCC p. 19, para 1) 11. In Hem Lall Bhandari v. State of Sikkim4 (AIR at p. 766) it was observed: (SCC p. 14, para 12) “It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers.” 15. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it “the great and efficacious writ in all manner of illegal confinement”. The writ has been described as a writ of right which is grantable ex debito justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right." (b) In Boumediene Et Al. V. Bush, President of the United States, Et Al. (553 U.S. ____(2008)) the Supreme Court of United States considered the question whether the alien detenus at Guantanamo had the constitutional privilege of habeas corpus. Some of the observations are useful. "Where a person is detained by executive order, rather than, say, after being tried and convicted in a Court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in https://hcservices.ecourts.gov.in/hcservices/ executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent...." In the context of detention to prevent acts of terrorism, the Supreme Court of United States made certain comments which may with some justification apply to any order of preventive detention. The Supreme Court stressed on the "fidelity to freedom's first principles". "Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives." "Our opinion does not undermine the Executive's powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person." It is for this reason that the Constitutional Courts zealously protect the individual liberty and see that the safeguard of Article 21 is not diluted. That is why every aberration in the procedure results in the preventive detention order being quashed, because the detenu is inside, but not after a fair trial. 5. The reason for detaining a person in these Acts is inter alia to safeguard the security of the State or maintain public order. This alone justifies executive detention without trial. When persons are detained on this ground the orders should be passed with extreme care and vigilance. But if orders are passed which beg to be quashed, then we may conclude that the authority is casual or careless. If so, even one hour of such detention is neither morally acceptable nor legally sustainable and may even justify the award of compensation. But routinely matters come up before us containing the same errors or defects. We will refer to some of them. (i) One of the judgments cited by the learned counsel for the petitioner is dated 16-10-2006 in H.C.P.No.763 of 2006 and Paragraph No.4 reads as follows: "Elaborating the above submission, the learned counsel for the petitioner has pointed out that the detenu himself has moved a bail application in respect of Cr.No.328 of 2006 on the file of the Baluchetty Chatram Police Station in Crl.M.P.No.8660 of 2006 before the Principal District and Sessions Court, Chengalpattu on 24- 07-2006 and according to the detaining authority, the said petition is pending on the date of passing of the detention order and it is posted to 01-08-2006. While so, while considering the imminent possibility of the detenu being coming out on the orders of the Court has expressed that ".... I am also aware that it is very likely that he may come out on bail by filing a bail application before the same Court or Higher Court since in similar cases https://hcservices.ecourts.gov.in/hcservices/ bails are granted by the concerned Court or Higher Court after lapse of time.....". As rightly pointed out by the learned counsel for the petitioner, when the bail application of the detenu was very well pending before the Principal District and Sessions Court, Chengalpattu and the said fact was very well noted by the detaining authority, it is not clear how he arrived at a conclusion that the detenu will come out on bail by filing a bail application before the same Court or higher Court which amply shows his non-application of mind in considering the case of the detenu, and detaining him as a Bootlegger under the Tamil Nadu Act 14 of 1982." There are numerous cases where we have quashed the detention orders solely on this ground. The above case is only a sample. The decisions of this Court must have been brought to the knowledge of the State. We presume so. But till today, the same mistake occurs and the orders of detention are regularly quashed. (ii) Next, there are cases where the detaining authority observes that the detenu is remanded and in judicial custody and has not filed a bail application and therefore, there is a real possibility of the detenu coming out or words to that effect. The Supreme Court and this Court have in several cases quashed the detention order where such words are found on the grounds of non- application of mind and that without materials on record the detaining authority has concluded that there is "a likelihood" or "real possibility of the detenu coming out on bail. Yet till date the same mistake creeps in the detention orders and such orders are quashed. (iii) Next we find, mainly in detention orders which involve bootleggers that where the bootleggers are caught red-handed and arrested at the scene of occurrence and the complaint is lodged later, the arrest memo or the destruction Mahazar which are ex facie earlier in point of time contain the crime numbers. This Court has quashed such detention orders on this ground. Yet this mistake repeatedly occurs and such orders are quashed. (iv) Next, we find that in several cases there is a long delay in communication of the representations from the Secretariat to the Collectorate or vice versa. The explanation that is offered is that the communications are sent by post and therefore, there is a delay. In these days of speedy communication it is difficult for us to accept this explanation, especially when the delay is long. (v) Representations are given by the detenu to which replies are given by the authorities without adverting to all the points raised in the representation. This Court has repeatedly held that the reply to the representation is not an empty formality, but the reply must refer to all the objections dealing with them and yet, very often we find parrot-like responses to the representations which clearly show that the reply is an empty formality. There are also cases of mistakes in translation and so on. (vi) The attitude of the Authority is inexplicable. On an earlier occasion, we had asked the learned Additional Public Prosecutor the reason for this. The learned Additional Public Prosecutor submitted today that a note has been circulated to the Sponsoring Authorities and the Detaining Authority regarding the decisions of this Court so that such mistakes are avoided. We https://hcservices.ecourts.gov.in/hcservices/ express our appreciation of this prompt action of the learned Additional Public Prosecutor. (vii) There is ofcourse, the possibility of genuine errors creeping in, which are beyond the control of the detaining authority or the sponsoring authority. Sometimes it may be a purely legal issue which results in quashing of the detention order. That is understandable, for after all no one is infallible. But these mechanical, recurrent, repetitive defects should definitely be avoided. We, in fact, asked the learned Additional Public Prosecutor whether the percentage of orders of detention being quashed is not very high. We do not have the statistics. But surely it will be more than 50% and not less. The State incurs a huge expenditure in this whole process of passing orders of preventive detention and detaining persons under the relevant Acts. Therefore, we expect the detaining authority and the sponsoring authority to be aware of the views of the Court before passing their orders of detention. That would result in saving of time and energy of the Court, time and energy of the officers concerned and in fact, more importantly saving of the funds of the exchequer. Above all, the protection of Article 21 of the Constitution of India cannot be whittled away casually. 6. A direction is given to the Additional Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009 to communicate this order to all the concern Authorities. 7. In the result, for the reasons in Paragraph Nos.1 to 3 above, the habeas corpus petition is allowed and the detention order is quashed. The detenu, Ezumalai S/o. Narayanasamy is directed to be set at liberty forthwith unless his custody is required in any other case. Glp Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Secretary The State of Tamil Nadu Prohibition and Excise Department Fort St. George, Chennai – 600 009 2. The District Collector and District Magistrate Villupuram District, Villupuram https://hcservices.ecourts.gov.in/hcservices/ 3. The Superintendent, Central Prison, Cuddalore. 4. The Joint Secretary to Government Public (Law and order), Fort St George, Chennai 9. 5. The Public Prosecutor, High Court, Madras. VM(CO) SR/30.9.2008 Habeas Corpus Petition No.611 of 2008 https://hcservices.ecourts.gov.in/hcservices/