Kalaivani @ Florance vs The Secretary to Government of Tamil Nadu, Prohibition and Excise Department and The Commissioner of Police

G. Rajasuria, J.—Issuance of writ of Habeas Corpus ad subjiciendum for the production of the detenu Victor, S/o. Soosainathan, is the prayer of the petitioner, who is the sister of the detenu.

The facts giving rise to the filing of this petition as stood exposited from the averments in the affidavit accompanying the petition inter alia would run thus:

(i) The detaining authority namely, the Commissioner of Police, who is the second respondent herein, passed the detention order on 16.11.2006 on the ground that the detenu was a goonda within the meaning 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 (Tamil Nadu Act 14 of 1982). The impugned order of detention is faulty due to the non application of mind of the second respondent, in addition to it having in violation of the aforesaid Act 14 of 1982. Without any necessity the order was passed. Even though, the second respondent referred to the fact that the detenu was involved in four cases, besides the ground case, yet there is no reference about the place of occurrence, name of the victims and the stage of the case in respect of Cr. No. 1283 of 2006. The second respondent did not refer to the said case in Cr. No. 1283 of 2006 in the detention order and the documents relating to it also were not furnished to the detenu. The detaining authority failed to note that the accused was arrested on 23.12.2006 on 17.00 hours, but in the ground case, it was alleged that the occurrence took place at 19.00 hours on the same day.

(ii) The detaining authority without considering the representation and the telegram of the petitioner passed the detention order. Apart from the delay in passing the detention order, the second respondent also did not consider the discrepancies found in the materials on record. Accordingly, the petitioner prayed for quashing the order of detention and set the detenu at large the detenu.

Per contra, gainsaying and denying the averments/allegations of the petitioner, the second respondent filed the counter with the averments thus. The second respondent adhering strictly to the provisions of the Act 14 of 1982, passed the detention order based on the records and C.D files submitted by the Sponsoring Authority. The detaining authority applied its mind and got subjective satisfaction in passing the order of detention. There was a need for passing such a detention order. The second respondent relied on four adverse cases and one ground case wherein the detenu is involved and correspondingly only those relevant documents were furnished to the detenu in the form of booklet. The case in Cr. No. 1283 of 2006 on the file of the Cantonment Police Station is not a relied piece of information and it was not considered as one of the grounds for detention by the detaining authority and in such a case, there was no necessity to supply copy of it along with the booklet. The detenu was arrested on 26.12.2006 at 05.00 hours and not otherwise as alleged in the petition. The allegation of sending representation and telegram to the second respondent, is fake. There was no delay in passing the detention order. Accordingly, he prayed for the dismissal of the petition.

Heard both sides in entirety.

Point for consideration is as to whether the writ of habeas corpus has to be issued based on the grounds raised by the petitioner as found detailed supra?

Point:

The arguments advanced on the side of the petitioner that in the detention order, there is no reference to the case in Cr. No. 1283 of 2006, has been correctly and satisfactorily countered by the learned Additional Public Prosecutor to the effect that even though the sponsoring authority placed before the detaining authority various documents including the one referring to the case in Cr. No. 1283 of 2006 of Cantonment Police Station, which is relating to the detenu having attempted to set fire to the Government Corporation bus parked at the Central Bus Stand, Tiruchirappalli, yet the second respondent has not relied on that document for passing the order of detention.

At this juncture, the pertinent question arises as to whether the detaining authority has to blindly concentrate on all the materials either relevant or irrelevant, material or immaterial, germane or ungermane for the purpose of ordering detention, placed by the sponsoring authority. Nowhere under the law, it is contemplated that the detaining authority should blindly rely or consider in depth on all the criminal cases which are pending as against the detenu, which are placed before the detaining authority. The detaining authority could select the relevant cases for being relied on and it is none of the business of the detenu to insist that if at all the detaining authority should pass an order of detention, he should rely or refer in one way or other on all the cases as against him.

The perusal of the records would reveal that the detaining authority in the grounds of detention relied on the following cases which came to his adverse notice:

(i) Cantonment P.S.Cr. No. 82 of 2006 - u/s 341, 324, 506(ii), I.P.C @ 341, 326, 506(ii) I.P.C.

(ii) Fort P.S.Cr. No. 188 of 2006 - u/s 387, 506(ii) I.P.C.

(iii) Cantonment P.S.Cr. No. 1284 of 2006 - u/s 435 I.P.C and 4 of TNPPD Act.

(iv) Cantonment P.S.Cr. No. 1288 of 2006 - u/s 435 I.P.C and 4 of TNPPD Act.

The detaining authority relied on the ground case registered by the police in Cr. No. 1289 of 2006 under Sections 387 and 506(ii) I.P.C by the Cantonment Police Station as against the detenu. Relating to the cited ground case and other adverse cases, there are details found enclosed in the booklet and such a fact is incontrovertible and indubitable.

The learned Counsel for the petitioner would draw the attention of this Court to page No. 86 of the booklet which is a copy of the remand report relating to the detenu which refers to Cr. No. 1283 of 2006 of Cantonment Police Station also in addition to other cases.

The core question arises as to whether the detaining authority was duty bound to refer or rely that case in Cr. No. 1283 of 2006. In our considered opinion, there is no requirement on the part of the second respondent either to rely upon or refer to it in the grounds of detention.

The learned Counsel for the petitioner also relied on the decision of this Court in S. Valli v. State [H.C.P. No. 673 of 2006 dated 18.09.2006]. The decision cited by the learned Counsel for the petitioner is out of context for the reason that the ratio decidendi as highlighted in the cited decision is to the effect that when the detenu is in remand for an offence of murder and if such fact was not considered by the detaining authority relating to the imminent possibility of coming out on bail, then the order would stand vitiated. Here, the discussion supra, would show that the case in Cr. No. 1283 of 2006 is not of such a serious nature relating to which no one could assume or presume that release on bail would be ad impossibilia.

Here, the Collector considering the adverse cases and the ground case as mentioned in his ground got satisfied that the act of the detenu were of such a nature that it jeopardized the public order and public tranquility and mere perusal of those connected records constituting those offences would show that the detenu indulged in dare devil type of crimes in public places affecting public order and public tranquility. Curiously enough, in this case, objectively, such facts could be seen, and those materials ex-facie sufficient to convince the subjective satisfaction of the detaining authority and in this case, he got the subjective satisfaction and passed the order of detention, with which this Court is having no reason to interfere.

The learned Counsel for the petitioner would advance the argument on one other ground that there was no application of mind on the part of the detaining authority relating to the imminent possibility of the detenu coming out on bail in those cases. To fortify and buttress his proposition, he unsuccessfully and unconvincingly relied on the decision of the Honourable Apex Court in T.V. Saravanan @ S.A.R. Prasana Venkatachaariar Chaturvedi v. State Thr. Secretary reported in 2006(1) Crimes 223 (SC). The dictum of the Honourable Apex Court as found posited in the cited decision is to the effect that the detaining authority should not be merely carried away by his ipse dixit in passing the detention order unsupported by the materials whatsoever relating to the imminent possibility of the detenu securing his release on bail. In our opinion, the aforesaid decision has been cited out of context as the Honourable Apex Court referred to various other decisions and highlighted that when successive bail applications so to say even five bail applications had been rejected in a case, there would have been no basis for the detaining authority to pass the order of detention. We would like to cite the decision in Rajesh Gulati Vs. Govt. of N.C.T. of Delhi and Another, . An excerpt from it, would run thus:

In this case, the detaining authority''s satisfaction consisted of two parts one: that the appellant was likely to be released on bail and two: that after he was so released the appellant would indulge in smuggling activities. The detaining authority noted that the appellant was in custody when the order of detention was passed. But the detaining authority said that "bail is normally granted in such cases". When in fact the five applications filed by the appellant for bail had been rejected by the Courts (indicating that this was not a ''normal'' case), on what material did the detaining authority conclude that there was "imminent possibility" that the appellant would come out on bail? The fact that the appellant was subsequently released on bail by the High Court could not have been foretold. As matters in fact stood when the order of detention was passed, the "normal" rule of release on bail had not been followed by the Coruts and it could not have been relied on by the detaining authority to be satisfied that the appellant would be released on bail.[See: in this context Ramesh Yadav Vs. District Magistrate, Etah and Others,

In fact, the Honourable Apex Court relied on various other similar decisions also in positing the proposition in T.V. Saravanan''s case cited supra.

The learned Counsel for the petitioner in all fairness would submit that there were no successive bail applications filed in this case and it is quite obvious. Simply because, the High Court dismissed the bail application once, it cannot be stated that there is no imminent possibility of the accused securing his release on bail. It is also a glaring and trait fact which could be understood that the cases in which the detenu is involved, are all not of such a nature that one could state that the petitioner would not be able to get bail at all on subsequent filing of bail applications.

The learned Counsel for the petitioner would try to weaken or contradict such an argument that when the nature of offence was not so serious for detaining the petitioner in jail without bail, then the detaining authority would be per se not justified in passing the order of detention. Such an argument is neither here nor there, for the reason that for the purpose of passing the detention order, public order and public tranquility which were jeopardized by the accused should be considered and not merely the penal sections. It is obvious that some of the penal sections might not contemplate severe punishment, but those offences would be very much affecting the public order and public tranquility on a large scale and no more elaboration is required in this regard as mere knowledge of Penology would highlight these facts.

In paragraph No. 4 of the grounds of detention, the detaining authority clearly spelt out that various bail applications filed in various cases including the one filed before the High Court and the dismissal of those applications. But, he objectively considering the practice and procedure prevailing in the legal field that simply because a particular bail application was dismissed, it would not lead to the inference that subsequently also, the bail application would be dismissed, arrived at his conclusion. Hence, no interference is required.

One other ground on which the detention order has been challenged is relating to the time of the occurrence and the time of arrest of the accused relating to the ground case. But, absolutely there is no substance in the contention as in the grounds of detention in paragraph No. 3, it is found spelt out that on 23.12.2006 at 19.00 hours, the occurrence took place and nowhere, it is stated that on 17.00 hours the detenu was arrested for that offence, but as per records, he was arrested only on 26.12.2006 at 05.00 hours. No supportive argument was advanced on the petitioner''s side. Such a ground has failed to carry conviction with this Court.

The perusal of the relevant F.I.R and the remand report found in the booklet also would clearly support the case of the detaining authority and that would falsify the stand of the detenu relating to the place of occurrence and the time of arrest concerning the ground case.

During arguments, nothing has been highlighted as to how the detenu cannot be treated as Goonda by the second respondent in view of the materials available with him.

During arugments also, nothing has been highlighted about the ground relating to the alleged issuance of telegram as well as the pre-detention representation.

Nothing has been show that there was any delay much less extraordinary delay in passing the detention order and those grounds were also not substantiated in any manner.

In the result, this Habeas Corpus Petition fails and the same is dismissed.