IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.11.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN Habeas Corpus Petitions No.1267 to 1272 of 2008 Senthilvalli .. Petitioner in HCP.No.1267/2008 Sarankapani .. Petitioner in HCP.No.1268/2008 Sankarapandian .. Petitioner in HCP.No.1269/2008 Kalyani .. Petitioner in HCP.No.1270/2008 Shanmugathai .. Petitioner in HCP.No.1271/2008 Jeyalakshmi .. Petitioner in HCP.No.1272/2008 Vs. 1.State, represented by The Commissioner of Police, Chennai Police, Chennai District. 2.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9. .. Respondents in all the H.C.Ps. H.C.P.No.1267 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records from the first respondent in Memo.No.199/BDFGISSV/2008, dated 15.7.2008, setting aside the said order of detention passed by the first respondent and setting the detenu Muthupandi, aged 36 years, at liberty, who is now detained in the Central Prison, Puzhal, Chennai. H.C.P.No.1268 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records from the first respondent in Memo.No.203/BDFGISSV/2008, dated 15.7.2008, setting aside the said order of detention passed by the first respondent and setting the detenu Ramachandran @ Mobay Ramachandran, aged 40 years, at liberty, who is now detained in the Central Prison, Puzhal, Chennai. https://hcservices.ecourts.gov.in/hcservices/ H.C.P.No.1269 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records from the first respondent in Memo.No.200/BDFGISSV/2008, dated 15.7.2008, setting aside the said order of detention passed by the first respondent and setting the detenu Sivasubbu, aged 21 years, at liberty, who is now detained in the Central Prison, Puzhal, Chennai. H.C.P.No.1270 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records from the first respondent in Memo.No.202/BDFGISSV/2008, dated 15.7.2008, setting aside the said order of detention passed by the first respondent and setting the detenu Paramasivam, aged 27 years,at liberty, who is now detained in the Central Prison, Puzhal, Chennai. H.C.P.No.1271 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records from the first respondent in Memo.No.198/BDFGISSV/2008, dated 15.7.2008, setting aside the order of detention passed by the first respondent and setting the detenu Sudalai Kannu Pandi @ M.S.Pandi, aged 53 years, at liberty, who is now detained in the Central Prison, Puzhal, Chennai. H.C.P.No.1272 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records from the first respondent in Memo.No.201/BDFGISSV/2008, dated 15.7.2008 , setting aside the said order of detention passed by the first respondent and setting the detenu Shankar, aged 28 years, at liberty, who is now detained in the Central Prison, Puzhal, Chennai. For petitioners in : Mr.Shanmugavelayutham, all the HCPs. Senior Counsel for Mr.N.Raja Senthoor Pandian For respondents in all the HCPs. : Mr.N.R.Elango, APP COMMON ORDER ELIPE DHARMA RAO, J. Since all these matters are inextricably interconnected with each other, all these matters are heard in common and are being disposed of by this common order. https://hcservices.ecourts.gov.in/hcservices/ 2. All these writ petitions are filed by the near relatives of the detenus, who are all detained as 'goondas' under Section 3(1) of the Tamil Nadu Prevention of Dangerous activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982, challenging the individual detention orders passed against the detenus by the first respondent. 3. All the detenus are alleged to be the accused in Cr.No.658 of 2008 of K.10 Koyambedu Police station for the offences under Sections 302, 307, 120(b) r/w.109 IPC. Thereupon, based on a case registered in Cr.No.333/2008, the detention orders are passed against the detenus, which are under challenge by the kith and kin of the detenus, in all these petitions. 4. Heard Mr.Shanmugavelayutham, learned senior counsel for all the petitioners and Mr.N.R.Elango, learned Additional Public Prosecutor for the respondents in all the petitions. 5. The learned senior counsel appearing for the petitioners would submit that the orders of detention, impugned herein, have been passed without application of mind by the Detaining Authority and in sheer violation of all the rules and regulations pertaining to it. The learned senior counsel would attack the grounds of detention on various grounds, which we would discuss one by one. 6. The learned senior counsel appearing for the petitioners would submit that there is defect in the translation of the detention order and the grounds supplied to all the detenus and when they have made representations to the respondents as against such defective translation, the corrected copies have been supplied with a long delay, causing much prejudice to the detenus. 7. On the contrary, on the part of the learned Additional Public Prosecutor, it has been submitted that the fact that the detenus have found out the mistake in the translated version itself indicates that they understood the contents even from the English and that the corrected copies of translated version were supplied to the detenus before the Advisory Board Meeting dated 20.8.2008 and therefore, no prejudice has been caused to the detenus in making effective representation. 8. The fact that there are mistakes in the translation version of the detention order and grounds of detention supplied to the detenus at the first instance was not disputed by the respondents. It is also not the case of the respondents that the detenus are well educated and well versed with English. But, the only contention of the respondents is that even though, admittedly, there are mistakes in the translated version, since the detenus have pointed out the same, it goes without saying that they understood the contents even https://hcservices.ecourts.gov.in/hcservices/ from the English version and therefore, no prejudice is caused to them. In view of the admission made on the part of the respondents themselves that there omissions and commissions in the translated version supplied to the detenus, we need not have to point out those gray areas and therefore, we are called for to decide as to whether supply of such defective translated copies would vitiate the detention order. 9. The law on this point is well settled. The upper forums of law have consistently and repeatedly held that the detenu has a constitutional right under Article 22(5) to be furnished with copies of all the materials relied upon or referred to in the grounds of detention, with reasonable expedition, in the language known to him. In the cases on hand, in view of non-denial of the fact that the detenus are not conversant with English and are conversant only with their Mother Tongue that is Tamil, an obligation is cast on the respondents to supply the documents relied on by them in Tamil, without any defect. Pointing out that there are certain mistakes in the translation copies supplied to them, does not imply that the detenus are well conversant with English and therefore, no translated copies be furnished to them. They might have been given to understand that there are mistakes in the translated version by an educated person, which does not mean that the respondents are obligation-free in supplying translated copies of the documents in a non-defective manner. 10. At this juncture, it is but proper to quote a judgment of the Division Bench of this Court delivered in ANBU vs. STATE OF TAMIL NADU [(2008) 1 MLJ (Crl) 206], wherein it has been held: "Communicate is a strong word. It requires that sufficient knowledge of the basic facts consisting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable the detenu to make a purposeful and effective representation. Where the grounds are not properly translated, it would tantamount to not serving the grounds to the detenu and would thus vitiate the detention ex facie." 11. Therefore, the documents supplied to the detenus are not to facilitate the detenus to make just a representation, but they must ensure that the detenus would submit purposeful and effective representation, based on such documents supplied to them in the language known to them. Therefore, since admittedly, there are omissions and commissions in the translation of the documents supplied to the detenus, it has affected their right of making purposeful and effective representation. Therefore, this argument advanced on the part of the respondents cannot be appreciated. 12. The other ground urged by the learned senior counsel for the https://hcservices.ecourts.gov.in/hcservices/ petitioners is that there is long delay in supplying the corrected copies of translated documents to the detenus, for which the learned additional Public Prosecutor would submit that the correct translated copies were supplied to the detenus well before the Advisory Board Meeting and there are no representations from the detenus after 9.8.2008. 13. To assess the counter aspects of both sides, we shall verify the facts connected thereto. All the detention orders came to be passed on 15.7.2008, whereupon representations were submitted by the detenus or their kith and kin on 30.7.2008, raking up even the plea of defective translation. Thereafter, corrected copies of translated version were supplied to the detenues on 6.8.2008, which were served on them on 9.8.2008. 14. As has been held by the Division Bench of this Court in Anbu's case (extracted supra), where the grounds are not properly translated, it would tantamount to not serving the grounds to the detenu. Therefore, when admittedly, defectively translated copies were supplied to the detenus, it would tantamount that no grounds were supplied to them. 15. In SMT.ICCHU DEVI CHORARIA vs. UNION OF INDIA AND OTHERS [AIR 1980 SC 1983], the Honourable Apex Court has held that: "The detaining authority was bound to supply copies of the documents, statements and other materials relied upon in the grounds of detention to the detenu within five days from the date of detention, that is, on or before the 9th June, 1980 and in any event, even if there were exceptional circumstances and reasons for not supplying such copies within five days were recorded in writing, such copies should have been supplied to the detenu not later than fifteen days from the date of detention, that is, on or before 19th June, 1980. There was unreasonable delay on the part of the detaining authority in supplying to the detenu copies of the documents, statements and other materials relied upon in the grounds of detention and the continued detention of the detenu after 19th June, 1980 was accordingly illegal and void and the detenu was entitled to be released forthwith from detention." 16. In TUSHAR THAKKER vs. UNION OF INDIA AND OTHERS [AIR 1981 SC 436], the Honourable Apex Court has held as follows: "The legality of the detention of detenu had been challenged, inter alia, on the ground that there was inordinate delay of 24 days in supplying the copies of documents and materials relied upon in the grounds of detention. The detenu further complained that even after https://hcservices.ecourts.gov.in/hcservices/ this unreasonable delay, copies of all the materials asked for by him were not supplied to him; that copies of the statements of two material witnesses were never furnished to him. This delay of about 24 days in supplying the copies and the non-supply of the copies of the statements of two material witnesses referred to in the grounds of detention, had not been satisfactorily explained by the authorities. The delay in furnishing the copies of the materials to the detenu had violated his constitutional right to make an effective representation and to have it speedily considered by the authority concerned." 17. In PERIYASAMI @ PATHIRAKADAI PERIYASAMI vs. STATE OF TAMIL NADU [2000 (2) MWN (Cr.) 120] also, a Division Bench of this Court has held that delay in service of grounds of detention vitiates the order of detention. 18. As could be assessed from the materials placed on record and as has been pointed out supra, all the impugned detention orders came to be passed on 15.7.2008, whereupon representations were submitted by the detenus or their kith and kin on 30.7.2008, raking up even the plea of defective translation. Thereafter, corrected copies of translated version were supplied to the detenues on 6.8.2008, which were served on them on 9.8.2008. Thus, from the date of passing the detention orders on 15.7.2008, till the date of serving the corrected copies of translated version on 9.8.2008, there is a delay of 24 days, since as has been held by the Division Bench of this Court in Anbu's case, where the grounds are not properly translated, it would tantamount to not serving the grounds to the detenu. Even though it has been vehemently argued on the part of the respondents that the true translation was supplied to the detenus well before the Advisory Board Meeting, we are unable to appreciate the contention raised on the part of the respondents. First of all, it is the duty and responsibility of the respondents to supply all the documents relied upon them in the language known to the detenu, without any defect in translation and if there is one, pointed out by the detenu or on his behalf by his kith and kin, the authorities must act swiftly to avoid any further delay. In the case on hand, the defect in translation was pointed out by the detenus on 30.7.2008 and the corrected copies were supplied to them only on 9.8.2008, though it is before the date of conducting the Advisory Board Meeting. Had the correct copies of translation were supplied to the detenu along with the detention order or immediately thereafter, the detenus would have sufficient breathing time to make effective and purposeful representation to the authorities concerned. The delay in supplying the true translated version of the documents to the detenus has affected their constitutional right of making effective and purposeful representation to the authorities concerned. Therefore, on this ground also, the impugned orders of detention are liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 19. From the materials placed on record it is seen that stereotype orders of detention are passed against all the detenus. The adverse case referred to in all the detention orders is one registered in Cr.No.658 of 2008 of K.10 Koyambedu Police station for the offences under Sections 302, 307, 120(b) r/w.109 IPC against all the detenus. It is to be pointed out here that since the daughter of Sudalai Kannu Pandi @ M.S.Pandi (detenu in HCP.No.1271 of 2008), by name Valarmathi, has committed suicide since her love with the deceased Balaji was objected to by Sudalai Kannu Pandi @ M.S.Pandi and his brothers and they have also picked up a quarrel with the deceased Balaji, as a result they developed grudge against the deceased Balaji and threatened him. In the grounds of detention, it is mentioned that 'Thiru Sudalai Kannu Pandi @ M.S.Pandi and his brothers had grudge over Thiru Balaji and threatened him and fearing for them, Tvl.Balaji and Kannan left Chennai and were staying at Bangalore. Later Tvl.Balaji and Kannan came to Chennai and were working in the vegetable shop at Koyambedu.' From the entire materials placed on record, it is not known as to who is this Kannan and what is his link or connection in the alleged episode of suicide of Valarmathi. This shows that all the relevant particulars and details and materials were not placed before the Detaining Authority by the Sponsoring Authority and therefore, it follows that the Detaining Authority has not arrived at subjective satisfaction, in consideration of all the facts and circumstances of the case. 20. The other aspect to be pointed out is that even though in the grounds of detention it has been mentioned that the alleged love affair of Valarmathi with the deceased Balaji was not liked by her father Sudalai Kannu Pandi @ M.S.Pandi and his brothers Vellai Pandi, Muthaiah Pandi and Kombiah Pandi and they all had entered into conspiracy to commit the murder of Balaji and paid Rs.20,000/= to other accused persons to commit the murder of Balaji, it is not known whether the above said Vellai Pandi, Muthaiah Pandi and Kombiah Pandi were also arrayed as accused in the case since all the materials placed on record would show only the detenus in all these cases as the accused. This also shows that the entire materials were not placed before the Detaining Authority by the sponsoring authority, except a gist of the case and therefore, it follows that the Detaining Authority has not arrived at subjective satisfaction, in consideration of all the facts and circumstances of the case 21. The important aspect of all these cases is that in all the impugned orders of detention, prepared in a cyclostyled manner, the adverse case has been shown as Cr.No.658 of 2008 of K.10 Koyambedu Police station for the offences under Sections 302, 307, 120(b) r/w.109 IPC and the ground case has been shown as Cr.No.333/2008 of V.4 Rajamangalam Police Station. As could be seen from the unnumbered paragraph at Page No.5 of the grounds of detention, 'while Shankar (detenu in HCP. 1272/2008), Ramachandran @ Bombay Ramachandran https://hcservices.ecourts.gov.in/hcservices/ (detenu in HCP.1268/2008) and Muthupandi (detenu in HCP.No.1267/2008) were absconding in K.10 Koyambedu Police Station Crime No.658/2008, on 2.7.2008, at about 5.00 p.m. At Dhayalu Nagar First Main Road in front of No.12, M/s.Ethiraj and sons, all the above said detenus came in a motor cycle, wrongfully restrained one Vellaipandi, who was proceeding to his shop and Muthupandi by holding the knife over Vellaipandi's neck, threatened him by demanding to take out the money from his pocket, by using some filthy language and voluntarily inserting his hand into the shirt pocket of Vellaipandi, he took away Rs.1000/= from his pocket and Sankar in his turn removed the gold ring, weighing about half sovereign and further threatened him with dire consequences if he informs it to the police and got into the motor cycle and tried to escape from the spot, but the motor cycle did not start and when Vellaipandi raised hue and cry, the nearby public came to his rescue and noticing them, the above said three detenues picked up soda water bottles and hurled the same against them and they fell on the road side and broke into pieces and the broken pieces scattered all over the road side and threatening the public at the point of knife, they all escaped, leaving their motor cycle and based upon the complaint lodged by Vellaipandi, a case in V.4 Rajamangalam Police Station Crime No.333/2008 was registered.' 22. While the entire case in Cr.No.333/2008 of V.4 Rajamangalam Police Station, depicts only the alleged role of Muthupandi (detenu in HCP.No.1267/2008), Ramachandran @ Bombay Ramachandran (detenu in HCP.No.1268/2008) and Sankar (detenu in HCP.No.1272/2008), and the other detenus in the above cases have not played any role, the million dollar question that remained unanswered throughout by the respondents is, as to why they have shown this Cr.No.333/2008 of V.4 Rajamangalam Police Station as an adverse case against the detenus in H.C.P.Nos.1269 to 1271 of 2008 also. It is also to be pointed out nowhere in the grounds of detention, it has been made clear as to under what Section of law, the case in Cr.No.333/2008 of V.4 Rajamangalam Police Station has been registered. This is nothing but a clear case of non-application of mind by the Detaining Authority, cutting the very root of the case. It is not the case of the respondents before us that the other detenus, who are the detenus in H.C.P.Nos.1269 to 1271 of 2008, have also participated in the case and that they are also the accused in Cr.No.333/2008 of V.4 Rajamangalam Police Station and in the absence of any material to show that the detenus in H.C.P.Nos.1269 to 1271 of 2008 that they are also the accused in Cr.No.333/2008 of V.4 Rajamangalam Police Station, we have no hesitation to hold that the impugned orders of detention are liable to be set aside on this sole ground of non- application of mind by the Detaining Authority, insofar as the detenus in HCP.Nos.1269 to 1271 of 2008. 23. Even regarding the detenus in HCP.Nos.1267/2008, 1268/2008 and 1272/2008, viz. Muthupandi, Ramachandran @ Bombay Ramachandran and Sankar, who are shown as accused in Cr.No.658/2008, a question https://hcservices.ecourts.gov.in/hcservices/ would arise as to whether they are the 'habitual offenders' so as to be detained under Act 14/1982. 24. Admittedly, all the detenus have been arrayed as accused in Cr.No.658/2008 of K.10 Koyambedu Police Station, which has been registered for the offences under Sections 302, 307, 120(b) r/w.109 IPC, which has been shown as the adverse case in respect of all the detenus and it is not made clear as to under what provision of law, the case in Cr.No.333/2008 of V.4 Rajamangalam Police Station has been registered. However, taking into consideration the averments and allegations available in the grounds of detention regarding Cr.Nos.333/2008 and the arguments advanced on the part of the learned Additional Public Prosecutor, it is a case registered under Section 397 IPC. Thus, both the cases in Cr.No.658 of 2008 of K.10 Koyambedu Police Station and Cr.No.333/2008 of V.4 Rajamangalam Police Station have been registered under different sections of law. Therefore, now we shall see as to what is meant by 'habitual offender' and 'goonda', since all the detenus have been detained as 'goondas' under Act 14/1982, branding them as 'habitual offenders'. 25. In VIJAY NARAIN SINGH vs. STATE OF BIHAR AND OTHERS [1984 SCC (Cri) 361], a Three Judge Bench of the Honourable Apex Court has held as follows: "The word 'habitually' used separately in clauses (i), (ii) and (iv) of Section 2(d) means, 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. Absence of the word 'habitually' in clauses (iii) and (v) of Section 2(d) suggests that in order to treat a person as 'anti-social element' under clauses (iii) and (v) a single act or omission referred to therein may be enough, whereas in the case of clauses (i), (ii) and (iv) there should be a repetition of acts or omission of the same kind referred to therein. If the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them they cannot be treated as habitual ones. Commission of an act or omission referred to in one of the clauses (i), (ii) and (iv) and of another act or omission referred to in any other of the clauses of Section 2(d) would not be sufficient to treat a person as an 'anti-social element'. A single act or omission falling under clause (i) and a single act or omission falling under clause (iv) of Section 2(d) cannot, therefore, be characterised as a habitual act or omission https://hcservices.ecourts.gov.in/hcservices/ referred to in either of them." (emphasis supplied) 26. In R.KALAVATHI vs. STATE OF T.N. AND OTHERS [(2006) 3 SCC (Cri) 11], the Honourable Apex Court has held as follows: "In order to attract action in terms of Section 3(1) of the Act, the detenu must be one who is a "goonda" as defined under Section 2(f) of the Act. Though in other preventive detention laws, even a single act which has the propensity of affecting the even tempo of life and public tranquility would be sufficient for detention, being prejudicial to maintenance of public order, for the purpose of the Act (Act 14/1982), the detenu has to be a "goonda" as defined under