In the High Court of Judicature at Madras Dated: 04.03.2009 Coram: The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr.Justice R.SUBBIAH Habeas Corpus Petition No.1925 of 2008 B.Kousalya ..Petitioner Vs. 1. State rep.by Secretary to Government, Home, Prohibition & Excise Dept., Secretariat, Chennai-600 009. 2. The Commissioner of Police, Chennai City Sub-Urban Area, St.Thomas Mount, Chennai-16. ..Respondents Petition filed under Article 226 of the Constitution of India, for the issuance of a Writ of Habeas Corpus, to direct the respondents to produce the detenu Kutty @ Kutty Bhaskar, son of Kannabiran, aged 35 years, who is now detained in Central Prison, Puzhal, Chennai-66, in pursuance of the detention order passed by the 2nd respondent on 15.11.2008 in Memo No.32/BDFGISSV/2008, before this Court, call for the records, set aside the order and set the detenu at liberty forthwith. For Petitioner .. Mr.S.Swamidoss Manokaran For Respondents .. Mr.N.R.Elango, Addl.P.P., R.SUBBIAH, J., The petitioner is the wife of the detenu, namely, Kutty @ Kutty Bhaskar and she challenges the impugned order of detention, dated 15.11.2008, passed by the 2nd respondent, branding her husband as 'Goonda', as contemplated under Section 2(f) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, https://hcservices.ecourts.gov.in/hcservices/ Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). 2. For clamping the detention order, the detaining authority has relied upon three adverse cases and one ground case. The adverse cases were registered in Crime No.2466 of 2007, 1034 of 2008 and 1049 of 2008 on the file of S-11, Tambaram Police Station. The ground case was registered in Crime No.1060 of 2008 of the same Police Station for the offences punishable under Sections 341, 427, 392, 397 and 506(ii) IPC. 3. The facts mentioned in the grounds of detention relating to the ground case, in brief, are as follows: On 04.11.2008 at about 14.00 Hours, the defacto complainant, namely, Babu, returned to TASMAC bar shop, where he was working as a Cashier, after having his lunch. On seeing him, the detenu and one Gunduraj stopped him in front of the bar and demanded money for consuming liquor. When the complainant objected, the said Gunduraj, caught hold of his hands and the detenu robbed a sum of Rs.600/- from his packet. Immediately, the complainant shouted and on hearing the same, the persons inside the bar and the public rushed to the spot for his rescue. On seeing the crowd, the detenu took cool drink bottles from the bar and thrown them on the road. The bottles were broken and the glass pieces scattered on the road. Thereafter, the public, who came for the rescue of the complainant, ran away out of fear and panic. For a while the whole place was looked like a battle ground. The detenu threatened the public by showing the knife and escaped from the spot. The victim gave a complaint, which was registered in Crime No.1060 of 2008 i.e.the ground case. After investigation, the detenu was arrested on 04.11.2008 at 21.00 hours and his confession statement was recorded. 4. In view of the above, the sponsoring authority, by concluding that the detenu is a habitual offender and acting in a manner prejudicial to the maintenance of public order and as such he is a "Goonda", as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982, forwarded the proposal to the Detaining Authority for passing an order of detention against him. The Detaining Authority, on consideration of the materials placed before him, arrived at the subjective satisfaction that the activities of the detenu are prejudicial to the maintenance of public order and thus, passed the order of detention against the detenu. Aggrieved by the same, the present Habeas Corpus Petition is filed. 5. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents and perused the materials. https://hcservices.ecourts.gov.in/hcservices/ 6. Learned counsel for the petitioner submitted that the detention order dated 15.11.2008 is vitiated for non-application of mind, pre-determination and for non-supply of legible copies of certain documents. In support of his submissions, the learned counsel drew the attention of this Court to the arrest report, found at page No.68 of the booklet, and submitted that in column No.4 of the same, it has been mentioned that the accused was taken into custody on 04.11.2008 at 21.00 Hours, whereas in column No.6, it has been mentioned that the detenu was sent to JM, Tambaram on 05.11.2008. It has been further submitted that the discrepancy found in the arrest report with regard to the dates mentioned in two different columns, was not properly looked into by the detaining authority before passing the detention order. The detaining authority, without getting any proper explanation from the sponsoring authority in this regard, has mechanically passed the order. Therefore, the order of detention is vitiated for non-application of mind. 7. The learned counsel would further submit that in the subject column in the special report submitted by the sponsoring authority to the detaining authority on 13.11.2008, which is available at page No.95 of the booklet, it has been mentioned as follows: @ghh;itapy; fz;l tHf;Ffspy; rk;ge;jg;gl;l vjphpia jLg;g[f;fhtypy; itg;gjw;fhd jdp mwpf;if rkh;g;gpj;jy; ? rk;ge;jkhf@/ The said version made in the subject column would show that there is a pre-determination as against the detenu to keep him under the Goondas Act. This pre-determination of the sponsoring authority has not been considered properly by the detaining authority. Therefore, the order is vitiated on this score also. 8. It has also been submitted on the part of the petitioner that the sponsoring authority in their special report has mentioned that the bail applications in Crl.M.P.Nos.6109 of 2008 and 6108 of 2008 were dismissed on 11.11.2008, whereas the dismissal orders found in pages 84 and 86 relating to Crl.M.P.Nos.6109 and 6108 of 2008, would clearly show that both the orders were passed on 10.11.2008 and not on 11.11.2008. This vital factor was not considered by the detaining authority while passing the order of detention. This shows non- application of mind on the part of the detaining authority. 9. Learned counsel further submitted that the documents at page Nos.29, 30, 31, 32, 33, 35, 36, 37, 38 and 63 are illegible and unreadable. Though a request was made, clear copies were not furnished, which caused prejudice to the detenu in making effective representation. Further the learned counsel for the petitioner https://hcservices.ecourts.gov.in/hcservices/ pointed out that no proper reply was also given in the counter filed by the respondents with regard to the grievance of the petitioner in respect of furnishing of legible copies of documents. 10. Further, learned counsel for the petitioner has pointed out that in para 'K' of the counter affidavit filed by the detaining authority, it was stated that the representation made by the petitioner on 21.11.2008 was duly considered and rejected by the detaining authority; but, subsequently, by way of additional counter affidavit, the detaining authority admitted that the representation dated 21.11.2008 was received on 26.11.2008 and the order of detention was passed on 15.11.2008, all the materials taken into consideration for passing the order of detention were forwarded to the Government for approval and moreover, the Government had approved the order of detention on 26.11.2008 itself and the representation with the detailed remarks was sent to the Government and the same was rejected by the Government on 08.12.2008. Thus, by pointing out the error committed in the original counter, learned counsel for the petitioner submitted that there is a total non-application of mind on the part of the detaining authority right from the beginning. 11. Learned Additional Public Prosecutor made his submission, countering the arguments advanced by the learned counsel for the petitioner. 12. On going through the arrest report, which is available at page No.68 of the booklet, we find from column No.4 that the detenu was taken into custody on 04.11.2008. In column No.6, namely, "How Disposed of, with date & hour of disposed", it was mentioned that "Sent to JM, Tambaram 05.11.2008" i.e.next day. Therefore, we could not find any infirmity in mentioning two different dates, one for arrest and another for the date on which the detenu was sent to judicial custody. Under such circumstances, the submission made by the learned counsel for the petitioner that there is non-application of mind on the part of the detaining authority in mentioning two different dates in the arrest report, is not an acceptable one. 13. With regard to the other submission, namely, pre- determination, we are of the view that the sponsoring authority has forwarded the special report dated 13.11.2008 only in order to prevent the detenu from acting in any manner prejudicial to the public order. Therefore, we do not find any error or mistake in mentioning the 'passing of detention order' in the subject column. Hence, we are negativing the submission made by the learned counsel with regard to the contention of pre-determination. 14. Similarly, with regard to the mentioning of the date of dismissal of the bail applications as 11.11.2008 instead of 10.11.2008, cannot have any significance and on the whole it will be https://hcservices.ecourts.gov.in/hcservices/ considered only as a human error crept in while preparing the grounds of detention. 15. Coming to the contention with regard to the non-furnishing of legible copies of certain pages, it was submitted by the learned Additional Public Prosecutor that totally two representations were sent by the detenu, one on 21.11.2008 and another on 25.11.2008 through his wife. In the first letter dated 21.11.2008, no grievance was made with regard to illegible copies and only in the second representation, an allegation was made that certain pages of the booklet were not legible. However, a proper reply was sent by the Government on 18.12.2008 in which it has been clearly stated that all the copies are legible. 16. Further in this regard, learned Additional Public Prosecutor drew the attention of this court to each page and demonstrated that all the copies are legible and readable. We have perused the documents and satisfied that the copies furnished to the detenu are legible. Under such circumstances, we are not accepting the submission made by the learned counsel for the petitioner that the was not able to make effective representation due to non-furnishing of legible copies. 17. No doubt, as pointed out by the learned counsel for the petitioner, in para "K" of the counter affidavit, an error has crept in while dealing with the disposal of the representation dated 21.11.2008 sent by the detenu and it was subsequently rectified in the additional counter affidavit. In our opinion, the flaws pointed out by the learned counsel for the petitioner would help this Court to come to a conclusion that the counter was not properly drafted by the respondents without taking any pain, but in no way they affect the order of detention passed on 15.11.2008. Under such circumstances, we do not find any force in the submissions made by the learned counsel for the petitioner to set aside the order of detention passed by the second respondent, namely, the detaining authority and hence, for the reasons stated above, the habeas corpus petition is liable to be dismissed. Accordingly, the habeas corpus petition is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gl To 1. The Secretary to Government, Home, Prohibition & Excise Dept., Secretariat, Chennai-600 009. 2. The Commissioner of Police, Chennai City Sub-Urban Area, St.Thomas Mount, Chennai-16. 3. The Superintendent, Central Prison, Puzhal, Chennai-66. 4. The Public Prosecutor, High Court, Madras. 1 cc To Mr.S.Swamidoss Manokaran, Advocate, SR.7327. H.C.P. No.1925 of 2008 PA(CO) RVL 11.03.2009 https://hcservices.ecourts.gov.in/hcservices/