Anthony @ Anthonyraj vs The State of Tamil Nadu

N. Paul Vasanthakumar, J.—Petitioner herein is the detenu, who has been branded as Goonda under the Tamil Nadu Act 14 of 1982,

detained by the order of detention dated 15.6.2005, challenges the same in this petition.

The learned counsel appearing for the petitioner challenges the detention order on the following three grounds.

(a) Firstly, the learned counsel submitted that in the paper book supplied along with the grounds of detention, at page No. 25, which is the List of

Property sent to the Magistrate, the date is mentioned as ''24.6.2005''. The date of despatch is also mentioned as ''24.6.2005''. According to the

learned counsel, mentioning of date as ''24.6.2005'', that is, after the date of the impugned detention order dated 15.6.2005, shows the non-

application of mind on the part of the detaining authority.

(b) Secondly the learned counsel pointed out that at page No. 61 of the paper book, which is the arrest report, the detenu is arrayed as A-1 and

one Suresh is arrayed as A-2. Whereas, in the remand report at page No. 57, the detenu is arrayed as A-2 and the said Suresh is shown as A-1.

According to the learned counsel, the discrepancy in arraying the accused as above, goes to the root of the matter and establishes the non-

application of mind on the part of the detaining authority.

(c) Thirdly, the learned counsel submitted that the crime number in the arrest report found at page No. 60 is mentioned as ''1374/2005'', whereas

in the Tamil version of the document found at page No. 61 of the paper book, the same is mentioned as ''1347/2005''.

Pointing out the above three discrepancies, the learned counsel for the petitioner/detenu contended that the cumulative effect of all the above

discrepancies discloses the mechanical manner in which the order of detention was passed by the detaining authority and consequently, the order

of detention is liable to be set aside.

The learned Government Advocate appearing on behalf of the respondents admitted that the date mentioned at page No. 25 of the paper book

as ''24.6.2005'' instead of ''4.6.2005'' is a mistake, but contended, in fact the list of properties were sent to the Magistrate as early as on 4.6.2005

at 12.00 noon. It is also submitted that in the FIR in the ground case it is clearly mentioned that the occurrence took place on 4.6.2005 at 8.00

hours and the information was received at the Police Station at 8.30 hours on 4.6.2005 and that the crime number is 1374/2005. He also

submitted that the statements of witnesses also show that the occurrence was only on 4.6.2005 and therefore the wrong mentioning of the date in

the List of Property sent to the Magistrate, found at page No. 25 of the paper book, will not vitiate the order of detention.

With regard to the second point that there is discrepancy in arraying the detenu as A-2 in the remand report found at page No. 57 and as A-1 in

the arrest report found at page No. 60, the same will not in any way affect the order of detention as the detaining authority could not correct the

mistake, even though he found the same, and it has no bearing on the order of detention.

As regards the third contention regarding the crime number, the learned Government Advocate replied that even though at page No. 61 the

crime number is wrongly mentioned as ''1347/2005'', in all other documents, viz., FIR at page No. 27, Remand Report at page No. 57, Arrest

Report dated 4.6.2005 at page No. 60, Information furnished to the mother of the detenu regarding the arrest of the detenu found at page No. 63

and in the Remand Order dated 4.6.2005 found at page No. 65 of the paper book, etc., the correct crime number 1374/2005 has been

mentioned and hence the said discrepancy is not a vital matter, which causes prejudice to the detenu.

We have carefully considered the rival submissions made by the learned counsel appearing for the detenu as well as the learned Government

Advocate appearing on behalf of the respondents. As pointed out by the learned counsel for the detenu, page No. 25 of the paper book viz., the

List of Property sent to the Magistrate, shows that the date of the list is 24.6.2005 and the date of despatch is 24.6.2005. But in fact, the date

could only be 4.6.2005 based on which the detention order was passed on 15.6.2005.

With regard to arraying of the detenu as A-1 at one place and A-2 in another place as found at page Nos. 57 and 60 of the paper book, the

same shows the non-application of mind on the part of the detaining authority. This Court is of the firm view that this is not a mere typographical

error as it is written in hand-writing and not typed.

The mentioning of crime number as ''1347/2005'' instead of ''1374/2005'' as could be seen at page No. 61 of the paper book, is also a vital

discrepancy and cannot be treated as mere typographical error, even though in all other documents correct crime number is mentioned as

''1374/2005''.

After going through all these discrepancies viz., wrong mentioning of the date and crime number and array of the accused, this Court is of the

considered view that the same cannot be treated as trivial mistakes and is of the firm view that the order of detention has been passed without

application of mind and therefore the detention order is vitiated.

The learned Public Prosecutor cited a judgment of the Honourable Supreme Court reported in 2004 SCC 662 (Union of India v. Amrit Lal

Manchanda) for the proposition that the object of law of preventive detention is not punitive but only preventive, that it is resorted to when the

executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain

objects which are specified by the law concerned, and that the action of the executive in detaining a person being only precautionary, normally the

matter has necessarily to be left to the discretion of the executive authority.

The above said judgment in no way helps the stand of the Government Advocate. The power of the Government is not questioned in this case.

The manner in which the order of detention is passed and as to whether the order of detention was passed with clear application of mind alone, are

the issues involved in this case.

In view of the discrepancies found in the documents relied on by the detaining authority, as discussed above, we are of the considered opinion

that the impugned order of detention dated 15.6.2005 is vitiated on the principle of non-application of mind.

In the result, the habeas corpus petition is allowed. The order of detention dated 15.6.2005 is set aside. The petitioner/detenu is ordered to be

set at liberty forthwith from the custody, if his detention is not required in connection with any other case.