1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25-11-2011 CORAM: THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.NAGAMUTHU H.C.P(MD) No.675 of 2011 Dhayal .. Petitioner. Versus 1. The Commissioner of Police, Madurai City, Madurai. 2. State of Tamilnadu, Rep. by its Secretary to Government, Home, Prohibition and Excise Department, Chennai-9. .. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus Petition filed seeking to call for the records pertaining to the proceedings of the first respondent made in his proceedings in No.09/BDFGISSV/2011, dated 28.7.2011, and quash the same and set the petitioner's husband by name "Pandi @ ATtack Pandi, S/o.Ponnusamy" aged about 35 years at liberty from Central Prison, Tiruchirappalli. For Petitioner : Mr.R.Gandhi, Senior Counsel for Mr.Sathish Babu For Respondents : Mr.K.Chellapandian Additional Advocate General assisted by Mr.C.Ramar Additional Public Prosecutor ********* ORDER (Order of the Court was made by M.JAICHANDREN,J) This Habeas Corpus Petition has been filed praying that this Court may be pleased to call for the records relating to the proceedings of the first respondent, in No.09/BDFGISSV/2011, dated 28.7.2011, and quash the same, and to set at liberty the husband of the petitioner, namely, Pandi @ Attack Pandi, son of Ponnusamy, aged about 35 years, from the Central Prison, Tiruchirapalli. 2. The petitioner, who is the wife of the detenu, namely, Pandi @ Attack Pandi, has filed the present habeas corpus petition before this Court to set aside the detention order, dated 28.7.2011, passed by the first respondent, detaining the detenu at the Central Prison, Trichy. https://hcservices.ecourts.gov.in/hcservices/ 2 3. In the affidavit filed by the petitioner, in support of the present Habeas Corpus petition, it has been stated that the first respondent had not followed the procedures established by law and he had not perused the materials placed before him before passing the detention order. Further, the members of the family of the petitioner had not been informed about the detention order, within a reasonable time. The order passed by the first respondent had not been approved by the second respondent, within the period prescribed by law. It has also been stated that the respondents had not disposed of the representation, dated 6.8.2011, sent on behalf of the detenu, expeditiously, as prescribed in clause 5 of Article 22 of the Constitution of India. 4. It has also been pointed out, by the petitioner, that the first respondent had made certain observations, in paragraph 5 of the grounds of detention, which are as follows: "5. I am aware that Tr.Pandi @ Attack Pandi, s/o. Ponnusamy, is in remand in the ground case in Madurai City Central Crime Branch Cr.No.57/2011 and also in fourth adverse case in Madurai City Central Crime Branch Cr.No.53/2007 and fifth adverse case in Madurai District Avaniapuram PS Cr.No.339/2011 and he is lodged at the Central Prison, Trichy. I also submit that the bail application filed on behalf of Tr.Pandi @ Attack Pandi before the JM No.1, Madurai vide Crl MP No.6502/2011 in the fourth adverse case in Madurai City Central Crime Branch Cr.No.53/2011, is pending for disposal. Similarly, another bail application filed on his behalf in the fifth adverse case in Madurai District Avaniyapuram PS Cr.No.339/2011 is also pending for disposal before the JM No.6, Madurai." 5. It has been further stated that, from the observations made by the detaining authority, in paragraph 5 of the grounds of detention, it is clear that, in respect of the fourth and the fifth adverse cases, the bail applications filed on behalf of the detenu, were pending disposal and therefore, there was no compelling necessity for the first respondent to pass the detention order before such bail applications had been disposed of. Further, insofar as the ground case is concerned, no bail applications had been moved on behalf of the detenu. The detaining authority has placed reliance on a statement made by one Karthick, who is only a stranger, having no relationship with the family of the detenu. Therefore, the apprehension that the said Karthick would be moving bail applications, on behalf of the detenu, is ill-founded. The detaining authority had wrongly relied on the statement made by Karthick, for arriving at his subjective satisfaction in passing the detention order. 6. It has been further stated that in the grounds of detention, it has been observed that, during the investigation, one Sakthivel, son of Krishna Thevar, had been arrested, on 24.7.2011. He has stated, in his confession statement that, he https://hcservices.ecourts.gov.in/hcservices/ 3 along with Pandi @ Attack Pandi and his associates, had threatened one Jagadeesan and had illegally encroached upon his residential premises. Thereafter, the detenu had threatened the said Jagadeesan and his friends, including one Shayam Sundar, with deadly weapons and had threatened them saying that they would be murdered, if they did not run away from the place. Due to the said acts committed by the detenu and his associates, the general public had run away and the residents in the area had closed the doors of their houses. From the above observations, it is clear that the detenu was not present at a public place, indulging in activities prejudicial to the maintenance of public order. As such, it is clear that the detaining authority had passed the detention order, without analysing the materials on record in a proper manner. 7. It has also been stated that the ground case relates to a matter concerning a civil dispute between private parties. Therefore, the allegations contained in the ground case would not be sufficient for the detaining authority to come to a conclusion that the activities of the detenu would be prejudicial to the maintenance of public order. It has been further stated that the petitioner had sent a representation, dated 20.7.2011, to the detaining authority, prior to the passing of the order of detention, stating that the complainant, Kalpana, had made the complaint, suppressing the civil disputes, which were pending. However, the detaining authority had, erroneously, disposed of the said representation, without getting the necessary clarifications from the sponsoring authority. 8. The learned counsel appearing on behalf of the petitioner had submitted that the detaining authority had passed the impugned detention order, without proper application of mind. There was no necessity for the detaining authority to pass the detention order to detain the detenu, as he was already in judicial custody, pursuant to the orders of remand, made by the Judicial Magistrates concerned. While so, it would not be open to the detaining authority to pass the order of detention, which is an act of the executive. 9. The learned counsel had referred to the averments made, in paragraph 7 of the counter, wherein, it has been stated that the detenu was in remand, in the ground case, in Madurai City Central Crime Branch, Cr.No.57 of 2011, and also in the fourth adverse case, in Madurai City Central Crime Branch Cr.No.53 of 2011 and in the fifth adverse case, in Madurai District Avaniapuram PS Cr.No.339 of 2011, on the date of the detention order. 10. It has also been stated that the bail applications filed on behalf of the detenu, in the fourth and the fifth adverse cases, were pending disposal, on the date of the passing of the detention order. Moreover, in the counter, it has been stated that the detenu, Karthick, son of the detenu, had revealed, before the sponsoring authority, that he was moving a bail application, in the ground case, in Madurai City Central Crime Branch Cr.No.57 of 2011, which had been registered, on 23.7.2011. However, it is seen, on page No.289 of the booklet https://hcservices.ecourts.gov.in/hcservices/ 4 that a statement had been made by one Karthick, son of Bose, residing at 13/7, Railway Ramasamy Pillai lane, South Veli Street, Madurai. Thus, it is clear that the detaining authority did not have sufficient and proper grounds for the passing of the detention order. In view of the number of discrepancies found in the order of the detaining authority, it is liable to be set aside. 11. The learned counsel appearing on behalf of the petitioner had further submitted that, in paragraph 5 of the grounds of detention, it has been stated that the detaining authority was aware that there was a real possibility of the detenu coming out on bail, by filing a bail application, in the ground case and also through the pending bail applications, in the two adverse cases, since, in similar cases bail orders had been granted in favour of the detenu, by the courts concerned. However, no proof had been given regarding the similar cases referred to therein. 12. The learned counsel had submitted that no bail application had been filed on behalf of the detenu, in the ground case. Even though it has been stated that the associates of the detenu had threatened Jagadeesan and his friends, when they had gone to see Shyam Sundar, at his house, it has not been clearly stated that the detenu had indulged in activities prejudicial to the maintenance of public order, especially, when the detenu was said to have made the threat, while inside the house. 13. The learned counsel had relied on the decisions of the Supreme Court, in REKHA Vs. STATE OF TAMIL NADU (2011 (5) SCC 244), wherein, in paragraph 28, it has been held as follows: "Where a detention order is served on a person already in jail, there should be a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. In this case, the detaining authority passed the detention order on the basis that no bail application of the accused was pending but in similar cases bail had been granted by the courts. But in the absence of details, this statement is mere ipse dixit, and cannot be relied upon. If these details were given by the respondent authority then, of course, it could https://hcservices.ecourts.gov.in/hcservices/ 5 be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. The detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable materials to this effect. Hence, the detention order in question cannot be sustained. Moreover, even if a bail application of the petitioner relating to the same case was pending in a criminal case the detention order can still be challenged on various grounds e.g., that the act in question related to law and order and not public order, that there was no relevant material on which the detention order was passed, that there were mala fides, that the order was not passed by a competent authority, that the condition precedent for exercise of the power did not exist, that the subjective satisfaction was irrational, that there was non-application of mind, that the grounds are vague, indefinite, irrelevant, extraneous, non-existent or stale, that there was delay in passing the detention order or delay in executing it or delay in deciding the representation of the detenu, that the order was not approved by the Government, that there was failure to refer the case to the Advisory Board or that the reference was belated etc.,. Article 22 cannot be read in isolation but must be read along with Article 19 and 21. Article 22(3)(b) which permits preventive detention is not itself a fundamental right but only an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order https://hcservices.ecourts.gov.in/hcservices/ 6 of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? Further, in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a "jurisdiction of suspicion". The detaining authority passes the order of detention on subjective satisfaction. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution permits preventive detention, it cannot be held illegal. But the power of preventive detention must be confined to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long arduous and historical struggles, will become nugatory. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is mandatory and vital. Personal liberty protection under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. Procedural rights are not based on sentimental concerns of the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society's assurances that the authorities will behave properly within rules distilled from long centuries of concrete experiences. Whenever an order under a preventive detention law is challenged one of the questions of the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive https://hcservices.ecourts.gov.in/hcservices/ 7 detention law be taken recourse to. Hence, the observation in Para 34 in Haradhan Saha case, (1975) 3 SCC 198, cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried for a crime in a criminal court, a detention order can also be passed under a preventive detention law even though in the view of the Court the former is sufficient to deal with the situation. This point is of extreme importance, but seems to have been overlooked in the decisions of the Supreme Court." As such, it is clear that there is no real possibility of the detenu being released on bail, as he is already in judicial custody in the adverse cases, as well as in the ground case. In fact, no bail has been granted to the co-accused of the detenu. 14. The learned counsel had also pointed out that the first information report in the ground case had been made, only on 23.7.2011, relating to an incident that is alleged to have taken place, on 29.4.2009, after an extraordinary delay of over two years. Even the first information reports filed against the detenu, in the adverse cases, as well as in the ground case, does not show that the detenu had indulged in activities, which are prejudicial to the maintenance of public order. 15. The learned counsel had also relied on the decision, in Darpan Kumar Sharma Vs. State of Tamil Nadu and others (2003 2 SCC 313), wherein, it has been held as follows: "The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention." 16. The learned counsel had also relied on the decision in K.K.Saravana Babu Vs. State of Tamil Nadu and other (2008 3 SCC criminal 679), wherein it has been held as follows: "The Supreme Court has been consistent in its approach while drawing distinction between "law and order" and "public order". According to the crystallised legal position, cases affecting the public order are those which have great potentiality to disturb peace and tranquility of a particular locality or disturb the even tempo of the life of the community of that specified locality." 17. He had also submitted that it is not open to the respondents to state that the petitioner ought to have challenged the Government order, in G.O.No.1090, Home, Prohibition and Excise (IX) Department, dated 8.8.2011, wherein, it has been stated that the Governor of Tamil Nadu had granted his approval for the detention order and the Government order, https://hcservices.ecourts.gov.in/hcservices/ 8 in G.O.No.1814, Home, Prohibition and Excise (IX) Department, dated 14.10.2011, wherein, it has been stated that the Governor had confirmed the order of detention, to continue the detenu in detention, for a period of twelve months, from the date of the detention order. 18. It had also been stated that the representation made on behalf of the petitioner, on 6.8.2011, had been dealt with by the Deputy Secretary, on 18.8.2011. Thereafter, it had been dealt with by the Minister for Electricity, and Prohibition and Excise, only on 27.8.2011. Thus, it is clear that there has been an inordinate delay of 9 days, in disposing of the said representation. Even though two days, out of the 9 days, i.e.20.08.2011 and 21.08.2011, were government holidays, there is no explanation given by the respondents for the actual delay of seven days in disposing of the representation. The learned counsel appearing on behalf of the petitioner had submitted that such undue and unexplained delay would vitiate the detention order passed by the first respondent, on 28.7.2011. 19. He had also submitted that the granting of anticipatory bail orders, in favour of the detenu, in the three adverse cases, registered against the detenu, cannot be an acceptable reason, for the passing of the detention order, by the first respondent, while it is an admitted fact that the detenu is in judicial custody, in the ground case, as well as in two of the adverse cases. 20. In the counter affidavit filed on behalf of the first respondent, it has been stated that the averments made in the affidavit filed in support of the Habeas Corpus Petition are incorrect. The detenu had come to adverse notice as he had involved himself in activities, which were found to be prejudicial to the maintenance of public order. The intimation regarding the arrest and detention of the detenu had been served on the petitioner, the wife of the detenu, on 28.7.2011, under acknowledgement, without any delay. The detention order passed by the first respondent, on 28.7.2011, had been approved by the state government, the second respondent herein, vide its order, in G.O.No.1090, Home, Prohibition and Excise (IX) Department, dated 8.8.2011. The representation, dated 6.8.2011, submitted to the state government, on behalf of the detenu, had been disposed of, without any delay. 21. It had also been stated that the detenu was in remand, in the ground case, in Madurai City Central Crime Branch Cr.No.57 of 2011, and also in the fourth adverse case in Madurai City Central Crime Branch Cr.No.53 of 2011 and in the fifth adverse case, in Madurai District Avaniapuram PS Cr.No.339 of 2011, on the date of the passing of the detention order. 22. It had been further stated that the bail application filed on behalf of the detenu, before the Judicial Magistrate No.1, Madurai, in the fourth adverse case, in Madurai City Central Crime Branch Cr.No.53 of 2011 and the bail application filed in the fifth adverse case, in Madurai District Avaniyapuram PS Cr.No.339 of 2011, were pending disposal on the date of the detention order. It had also been stated that one Karthick, son of the detenu, had revealed before the sponsoring authority that he was moving a bail application in the ground https://hcservices.ecourts.gov.in/hcservices/ 9 case, in Madurai City Central Crime Branch Cr.No.57 of 2011, which had been registered, on 23.7.2011. 23. It had also been stated that the detenu had been granted anticipatory bail in the first three adverse cases, which were more grievous in nature than the fourth and the fifth adverse cases, as well as the ground case. Therefore, based on the relevant materials and the records available, the detaining authority had arrived at his subjective satisfaction that there was a possibility of the detenu coming out on bail, by filing a bail application in the ground case and through the pending bail applications in the adverse cases. 24. It had also been stated that the contention of the petitioner that the ground case is only a civil dispute between two private parties is not true. The fact that the detenu, along with his associates, had criminally intimidated the complainant, as well as the general public, had been well established by the cases registered against the detenu. 25. It has been further stated that the petitioner had preferred a pre-detention representation, dated 20.7.2011, to the detaining authority and the same had been considered and a reply had been served on the petitioner, on 26.7.2011. The involvement of the detenu in the ground case, as well as in the adverse cases, clearly establishes the fact that the criminal activities of the detenu would be prejudicial to the maintenance of public order, as the detenu had come to adverse notice, by his habitual criminal activities. The habitual criminal activities of the detenu had been established by the records available before the detaining authority. As