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Judgment
S. Manikumar, J.—The petitioner, who is the wife of the detenu, namely, Alex @ Alexander, S/o. Lazer, branded as ''Bootlegger'' in C. No. 22/Detention/C.P.O/TC/2014, dated 18.06.2014 by the Commissioner of Police, Tiruchirappalli City, Tiruchirappalli, has sought for a writ of Habeas Corpus Petition.
Brief averments made in the petition as well as the contentions put forth on behalf of the petitioner by the counsel for the petitioner are as follows:--
2.1. The detenu has been registered in one ground case on the file of Trichy City PEW, Cr. No. 601 of 2013 for the offences under Sections 4(1)(aaa) r/w 4(1-A), 24 of TNP Act 1937 and 328 of IPC and one adverse case on the file of Trichy City PEW in Crime No. 396 of 2014 for offence under Section 4(1)(a) r/w 4(1-A), 24 of TNP Act 1937.
2.2. The impugned order of detention suffers from non-application of mind having regard to the fact that there is no real possibility of the detenu coming out on bail.
2.3. Admittedly, the detenue is facing two criminal cases including one ground case and one adverse case and the very imminent possibilities of coming out of bail by the detenu is highly improbable and as such the satisfaction arrived at by the Detaining Authority is nothing but an ''Ipse Dixit'' without any material to substantiate the same.
2.4. The Detaining Authority has failed to see the material contradiction in the translation version of the documents supplied to the detenu. It is stated that the case has been registered in Crime No. 601 of 2013 for offences under Sections 4(1)(aaa) r/w 4(1-A), 2A of TNP Act and 328 of IPC, whereas in the Tamil Version of grounds of detention in para No. 1, the offence under Section 328 of IPC has not been mentioned and the same suffers from non-application of mind.
2.5. The Detaining Authority has failed to see in the detention order that there is a difference in the translated documents. In the detention order in Para 1 of the English version it is stated that the date of occurrence in Crime No. 601 of 2013 is 29.10.2013, whereas in the Tamil version in para no. 1 it is wrongly stated that the date of occurrence is 20.10.2013 and the same would go to show the non-application of mind of the detaining authority before passing the impugned order of detention. The detention order does not stand scrutiny in the eye of law and as such the order of detention is liable to be set aside.
2.6. The wife of the detenu, Aparna Mary has sent representation to the Detaining Authority, as early as on 24.06.2014 and the same has not been considered by the Detaining Authority for the revocation of detention order and non consideration of the representation is violative of Articles 14 and 21 of Constitution of India and as such, the detention order is liable to be set aside.
2.7. Absolutely, there is no possibility of the detenu to come out on bail in the event of filing any application and as such the detaining order is liable to be interfered with.
2.8. The Detaining Authority ought to have seen that the case in Crime No. 601 of 2013, one Hanifa has been arrested and remanded to judicial custody. However, the detenu is neither supplied with remand report of Hanifa nor aware of the same and as such the non supply of remand report would vitiate the entire detention order.
2.9. As per the grounds of detention as well as the documents supplied to the detenu, the case in Crime No. 396 of 2014 has been registered on 05.06.2014 at about 08.30 p.m. Occurrence said to have taken place on 6.15 p.m. and the detenu said to have been arrested at 6.15 p.m. near C.S.I. Hospital bus stop, whereas the arrest memo reflects the crime number registered against the detenu at later point of time. As per the Apex Court judgment the arrest memo has to be prepared only at the time of arrest, however, the arrest memo contains the Crime Number which has been registered, later, in the police station and as such the entire prosecution case is nothing but concocted story and the detention is unsustainable.
On the other hand, in the counter affidavit filed by the learned Additional Public Prosecutor, appearing on behalf of the respondents, it is stated as follows:-
On 05.06.2014, the detenu Alex @ Alexander, son of Lazer, has come to adverse notice and acted in a manner prejudicial to the maintenance of Public order and public health. In this connection, a case in Tiruchirappalli City, Prohibition Enforcement Wing Cr. No. 396/2014, u/s. 4(1((a) r/w 4(1-A) TNP Act 1937 has been registered against him. In order to prevent him from indulging in further course of activities, which are prejudicial to the maintenance of public order and public health, the second respondent ordered to detain him under the provisions of Tamil Nadu Act, 14/1982 vide detention order C. No. 22/Detention/CPO/TC/2014, dated 18.06.2014. Regarding para 4 of the affidavit, it is submitted that the detenu filed a bail petition before the District and Principal Sessions Jude, Tiruchirappalli in Cr. M.P. No. 880/2014 and the same has been pending at the time of passing of detention order. In the adverse case, the detenu has got anticipatory bail from the Madurai Bench of Madras High Court. The Courts are granting bail in such cases considering the period of incarceration of the detenu. Therefore, if he has been released on bail, he will indulge in such prejudicial activities and disturb the peace of the society. Regarding ground (iv) of the affidavit, it is submitted that the date mentioned in English version as 29.10.2013 is correct one. It has been wrongly typed as 20.10.2013 in Tamil version. It is a typographical error. Regarding the averments put forth in ground 12 of the affidavit, it is submitted that the time of occurrence, arrest, service of arrest memo is 6.15 p.m. and after the arrest of the detenu he has been brought to PEW unit at 6.30 p.m. After arrest of the detenu, a case has been registered immediately against him by informing the fact to the unit and a crime number has been assigned. Hence, the contention of the petitioner is not admissible one.
This Court perused the materials available on record and based upon the submissions on both sides, the following points arise for consideration;-
i) Whether the impugned order of detention has been passed in accordance with the provisions of Act 14 of 1982?
ii) Whether the order of Preventive detention has been passed on proper and valid grounds?
The counsel for the petitioner has straight away drawn, the attention of the Court to ground No. 4, mentioned in the present HCP, wherein it has been clearly stated that there is a difference in the translated document served to the detenu and in the detention order in para 1 of the English version, it is stated that the date of occurrence in Crime No. 601 of 2013, is 29.10.2013. However, in the Tamil version in paragraph No. 1, it is wrongly stated that the date of occurrence as 20.10.2013 and the same would go to show the non application of mind of the Detaining Authority before passing the impugned order of detention. Further, In the counter affidavit the second respondent has stated in para 8 that regarding ground No. 4 of the petition, it is submitted that the date mentioned in English version as 29.10.2013 is correct one and it has been wrongly typed as 20.10.2013 in Tamil version. Further, in the grounds of the present HCP at ground No. 12, it has been clearly pointed out that as per the grounds of detention as well as the documents supplied to the detenu, the case in Crime No. 396 of 2014 has been registered on 05.06.2014 at about 8.30 p.m. and the occurrence said to have taken place on 6.15 p.m. and the detenu said to have been arrested at 6.15 p.m. near C.S.I. Hospital bus stop. However, the arrest memo reflects the crime number registered against the detenu at later point of time. As per the Hon''ble Apex Court judgment, the arrest memo has to be prepared only at the time of arrest, however the arrest memo contains the crime number which has been registered later in the police station and as such the entire prosecution case is nothing but concocted story and the detention is unsustainable.
Further in the counter affidavit also, the second respondent has stated at para 15 that the time of occurrence, arrest, service or arrest memo is 6.15 p.m. and after the arrest of the detenu, he has been brought to PEW unit at 6.30 p.m. and after the arrest of the detenu, a case has been registered immediately against him by informing the fact to the unit and a crime number has been assigned. On that ground only, in the petition, the petitioner has categorically pointed out that the Detaining Authority has failed to see properly, the material contradictions and the translated version of the documents supplied to the detenu and there are records to show the non application of mind by the Detaining Authority before passing of the impugned order of detention. On a careful perusal of the entire records, it is found that there is serious, sufficient and substantial force in the said contention of the learned counsel for the petitioner.
Further, in the judgment reported in 2004-1-L.W. (Crl) 20 (Saravanamuthu V. District Magistrate And District Collector, Nagapattinam And Another), this Court has held as follows;-
"Plea that the Detaining Authority not having considered these aspects amounted to non-application of mind, upheld, detention quashed."
ii) H.C.P. (MD). No. 242 of 2010, dated 07.06.2010, this court has held as follows;-
"Added further the learned counsel that insofar as the ground case in Crime No. 72/2010 under Section 6(4) of TNSC (RDCS) Order 1982 r/w 7(i)(a)(ii) of E.C. Act 1955 registered by Madurai Civil Supplies Criminal Investigation Department, the detenu was arrested at 18.00 hours on 1.3.2010 and the arrest card, which was prepared earlier contained the crime number. Hence, under the circumstances, an explanation should have been called for by the detaining authority from the sponsoring authority but failed to do so. All would clearly indicate non-application of mind on the part of the Detaining Authority, which according to the learned counsel was sufficient to set aside the order of detention."
In this case also, it is found that there are materials on record in the present case, to indicate non application of mind on the part of the Detaining Authority.
Further, in the judgment passed in the case of Kasthuri V. District Collector and District Magistrate { (2009) 2 MLJ (crl) 248}, wherein it is held as follows;-
"As per various decisions of the Hon''ble Apex Court, the following factors are considered as violation in preventive detention cases;-
a) Non-intimation of the detention order as to any of the family members or friends within a reasonable time.
b) Delay in considering the representation made by the detenu or any other person interested, on behalf of the detenu.
c) Non-supply of copies of material documents relied on by the detaining authority.
d) Furnishing illegible copies of documents, so as to present detenu from making effective representation under the Act.
e) Non-furnishing of copies translated in the language known to the detenu for making effective representation.
f) Non application of mind by detaining authority in having subjective satisfaction while passing the order."
Thus it is well settled in catena of decisions that if any material documents are considered by the Detaining Authority for arriving at a subjective satisfaction by the Detaining Authority, the detenu is entitled to a copy of such document, in the language known to him and that the contents of the same should be explained. In the case on hand, there is a failure on the part of the Government, in furnishing the copy of the material records, relied on by the respondents, to pass the impugned detention order.
For the reasons stated supra and in the light of the decisions, the impugned detention order dated 18.06.2014 passed by the second respondent in C. No. 22/Detention/C.P.O/TC/2014 is liable to be set aside and accordingly, set aside. The Habeas Corpus Petition is allowed. Consequently, the detenu is directed to be released forthwith, if his presence is not required in connection with any other case.