DISTRICT MAGISTRATE AND ANR.

R. KUMARA VEL

AUGUST 4, 1993

[KULDIP SINGH AND P.B. SA WANT, JJ.]

Preventive Detention : Tamil Nadu Prevention of Dangerous Activities of Boot-ieggers, Drug Offende1~, forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982.

C S.3--Detention Order-Relevant and vital materiaf--Consideration

of-Telegram-Authenticity of-Held, unless confi1med by subsequent signed document, contents of telegram have no authenticity and cannot be considered for assessing value of other authentic documents.

Two persons, reported in the records of the district administration as habitual criminals, were detained under Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, on the ground that they committed violent crimes against the police personnel in a crowded locality at 3.00 P.M. on 25.11.1991 and thereby acted in a E manner prejudicial to the maintenance of public order.

The detenues challenged their detention by way of habeas COl]JUS petitions before the High court on the ground that the orders of detention were vitiated for non-consideration of vital documents and non-application of mind inasmuch as the relevant and vital documents, namely, the F telegram sent on their behalf to various authorities complaining that they were taken in to police custody at 11.00 a.m. on 25.11.1991, were neither considered by the detaining authority nor copies thereof were supplied to the detenues.

G The District Magistrate in his counter affidavit stated that the detenues were arrested only after the inbdent that took place at 3.00 p.m. on 25.11.1991 and the telegrams referred to had been booked late in the evening after the arrest had been made.

The High Court allowed the petitions and quashed the orders of H detention holding that the telegrams were relevant and vital material which 478

DISTRICTMAGISTIZATE v. KUMARAVEL[KULDJPSINGH, J.] 479

should have been placed before the detaining authority and since the A grounds of detention did not disclose that the detaining authority had taken the telegrams into consideration the State tiled the appeals by special leave.

Allowing the appeals, this Court

detention was vitiated. The

HELD : 1.1. The orders of detention could not be challenged on the ground that some material contained in a telegram simplicitor was not taken into consideration by the detaining authority. The High Court was, therefore, not justified in quashing the detention orders. [483-C-D]

1.2. A telegram by itself is not an authentic document. It is like

an unsigned/anonyinous communication. Contents of telegrams, unlesE confirmed by a subsequent signed applicatio'l, representation or an affidavit, have no authenticity at all and cannot be taken into consideration for assessing the value of the other authentic documents on the

record. [ 483-A) D

1.3. There is nothing on the record to show that before the detention orders were passed any other communication was sent to the detaining authority or to the police, confirming the contents of the telegrams. The detention orders were passed by the detaining authority on the basis of the material placed before it. [482-G-H; 483•B)

2. The grounds of detention metioned that the bail application filed on behalf of the detenues was disiuissed. The detaining authority had applied its mind to the bail application which contained the averment that the detenues were arrested at 11.30 a.m. on 25.11.1991. The .detaining authority had before it the case of the detenues that they were arrested at 11.00 a.m./11.30 a.m. In this view of the matter the challenge based. on the telegrams loses it relevance. [482-E-F)

3. Since the detenues were released as a result of the High Court judgn1ent, it would not be in the interest of justice - due to lapse of time G

- to further execute the detention orders and to detain them for undergoing the remaining period of detention. It would, however, be open for the detaining authority to consider afresh-, keeping in vie\v the circumstances and their activities, the question of 4etention in accordance with law. [483-D-E) H

A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 516-517 of 1 '!93.

From the Judgment and Order dated 5.2.1992 of the Madras High Court in Writ Petition Nos. 16838 and 16839 of 1991.

B K. Subramanian, K.V. Vishwanathan and K.V. Venkataraman for the

Appellants.

K.K. Mani and B. Kumar for the Respondents.

The Judgment of the Court was delivered by

KULDTP SINGH, J. Special leave granted in both the petitions.

R. Ramanathan and G. Jothisankar were detained under Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Durg Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers D Act 1982 (the Act). The orders of detention were passed in respect of both the detenues by the District Magistrate, Thanjavur under the Act. The detenues challenged the detention by way of habeas corpus petitions before the Tamil Nadu High Court. By a Common judgment dated February 5, 1992, the High Court allowed both the petitions and quashed the detention E order> These appeals, by way of special leave petitions, are by the State of Tamil Nadu against the judgment of the High Court.

Both the detenues were reported in the records of the District Magistrate as habitual criminals having history-sheet of committing various crimes. The occurrence which has been made the ground-case in the F detention orders, is alleged to have taken place on November 25, 1991 at

3.00 p.m. It is not necessary for us to go into details of the said occurrence, suffice it to say that the detenues allegedly committed violent crimes in a crowded locality against the police personnel and thereby acted in a manner prejudicial to the maintenance of public order. Both the dctenucs G were detained on the basis of the same ground-case. The dctenues challenged the orders of detention before the High Court inter alia on the following ground:-

''The relevant and vital documents, namely, the telegrams sent on behalf of the detenues to the police authorities, the Chief Minister, H the High Court and other authorities wherein it was complained

IJISTRICTMAGISTI<ATE i. KUMARAVl'.L [KULDlP SINGH, J.] 481

that the <letcnues \Vere taken in police custody at 11.00 a.n1. nn Nove1nhcr 25, .1.991, \Vere neither placed before the detaining authority nor the copies of the said telegrams were supplied to the detenues in spite of the request in that respect made by them in their representations. The detention order \Vas thus vitiated for non-consideration of vital <locu111ents and non-application of

1nin<l."

According to the <letcnues the telegrams \Vere sent lo various authorities including the District Magistrate, Thanjavur wherein it was complained that the detcnues were taken by the police to the Thanjavur West police Station at 11.00 a.m. on November 25, 1~91 and were boing

kept in police custody illegally. The ground of detention while narrating the occurrence of the ground-case specifically stated that the said occurrence took place at 3.00 p.m. on November 25, 1991 and the detenues were arrested by the police thereafter. According to the High Court if the contents of the telegrams to the effect that the detcnues were taken in police custody at 11.00 a.m. arc correct, then the detcnues could not have participated in any occurrence al 3.00 p.1n. on the same day. The High Court, therefore, came to the conclusion that the telegram..s sent on behalf / of the detenues \Vere relevant an<l vital material which should have been placed before the detaining authority. Since the grounds of detention did

not disclose that the District Magistrate had taken the telegrams into E consideration, the detention was \ iiatcd1 The High Court allowed t.hc writ petitions and quashed the detention on this short ground.

We do not agree with the reasoning and the conclusions reached by the High Court.

The detenues filed bail application before the Judicial Magistrate, Thanjavur on November 26, 1991. Para 1 of the bail application is as under:-

The two petitioners taken into custody by the respondent at about G

11. 30 a.m. from the compound of the Sessions and District Judges' Court, Thanja\,'.ur. 11

It is thus obvious that the dctenues had specifically mentioned in the bail application that they were arrested by the police at 11.30 a.m.

A The District Magistrate .in his counter affidavit filed before the High

Court deposed as un<ler:M

"As regards the avermcnts in paragraph 4 of the affidavit, I submit that the detenues was not arrested at 11.00 A.M. in the court premises as alleged. He and his associate were arrested only after the incident that took place at 3.00 P.M. on 25.11.1991. The telegrams referred to had been booked only after the arrest has been n1ade, i.e., late in the evening. J have also persued the bail application filed on behalf of the dctenu which contains the avcrmenls that the detenu was arrested at ll.30 AM. and I am also aware that it is a false statement of the detenu as he was arrested only at 3.00 P.M. Telegrams were sent at 4.45 P.M. only. This respondent has not referred to the telegrams and not relied on the telegrams in order lo arrive at the subjective satisfaction and hence they are not material documents and the detenu cannot contend that he has been deprived of making effective and meaningful representation. All the documents relied in the grounds of detention have been furnished to the detenu. Hence, the contention to the contrary is not sustainable in law and is denied."

Learned Advocate-General appearing for the State of the Tamil E Nadu has taken us through the grounds of detention. It has been mentioned in para 3 of the grounds that the bail application filed on behalf of the detcnues was dismissed by the Judicial Magistrate, Thanjanir on November 26, 1991. It is thus obvious that the District Magistrate had applied his mind to the baii' application which contained the avcrment lbat the F detenues were arrested by the police at U.30 A.M. on November 25, 1991.

The District Magistrate had before him the case of the detenues that tbey were arrested by the Police at 11.00/11.30 A.M. In this view of the matter, the argument of the learned counsel for the detenues based on the telegrams looses its relevO:nce.

We n1ay examine the. argument of the learned collnsel for the detenues from another angle. The detenues have based their case solely on the fact that the contents of the telegrams sent on their behalf were not taken into consideration by the detaining authority. There is nothing on the record to show that before the detention orders were passed any other H communication was sent to the detaining authority or to the police, con-

DISTRICTMAUISTRATE v. KUMARAVEL[KULDIPSINGH, J.] 483

firming the contents of the telegrams. A telegram by itself is not an authentic document. It is like an unsigned/anonymous communication.

Unless a telegram is confirmed by a subsequent signed application, representation or an affidavit, the contents of the telegrams have no authenticity at all and the same cannot be I aken into consideration for assessing the value of the other authentic documents on the record. The detention orders were passed by the District Magistrate on the basis of the material placed before him by the police authorities. Any material received by the District Magistrate in the shape of telegrams couli.l not be taken into consideration by him in the absence of any subsequent communication confirming the same. We are, therefore, of the view that the orders of detention could not be challenged on the ground that some material contained in a telegram simplicitor was not taken into consideration by the detaining authority

The High Court was, therefore, not justified in qrnJShing the detention orders on the ground discussed above. We set aside the reasoning and conclusions reached by the High Court on the above said issue.

The detenues were released, as a result of the High Court judgment, in February 1992. We of the view that it would not be in the interest of justice - due to lapse of time - to detain the respondents for undergoing the remaining period of detention under the impugned detention orders.

We, therefore, direct that the impugned detention orders shall not be further executed as a result of our judgment. It would, ho\vever, be open for the detaining authority to consider afresh, keeping in view the present circun1stances and activities of the respondents, the question of detention in aceordancewith law. We allow the appeals in the above terms.

R.P.

Appeals allowed.