Mahalakshmi vs Government of Tamil Nadu

R. Banumathi, J.—Challenge in this Habeas Corpus Petition is to the detention order dated 10.01.2007, whereby the Petitioner''s husband

Jegadeesh @ Jegadeesan was detained under Act 14/1982, branding him as ""Goonda"" as contemplated u/s 2(f) 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 detenu had earlier come to adverse notice in three cases - Pudukottai P.S. Cr. No. 345/2002 under Sections 148, 149, 302 r/w 34 IPC;

Authoor P.S. Cr. No. 111/2006 under Sections 341, 385, 506(ii) IPC; Authoor P.S. Cr. No. 206/2006 under Sections 324, 323, 294(b),

506(ii) IPC. Fearing the detenu, Murugesan, defacto complainant in Cr. No. 206/2006 shifted his family from Koluvai Nallur and settled at

Kalvilai Village near Meignanapuram. On 28.12.2006 at about 8 a.m., the detenu is alleged to have attempted on the life of the said Murugesan by

hurling country bombs. On the complaint lodged by the said Murugesan, a case was registered in Cr. No. 272/2006 under Sections 307, 294(b),

506(ii) IPC and 3(a) of Explosive Substances Act. The detenu was arrested and remanded to judicial custody. On being satisfied that the activities

of the detenu are prejudicial to the maintenance of public order, detention order was clamped on him.

Even though several contentions were raised and argued as well, the learned Counsel for the petitioner mainly focused his arguments on the

discrepancy in the dates of occurrence of the adverse case and the ground case, and submitted that such discrepancy has the effect of causing

confusion in the minds of the detenu, which would vitiate the detention order. The learned Counsel for the petitioner has drawn our attention to

various pages of the booklet in support of his contention that the booklet is replete with such discrepancies.

Responding to the same, the learned Addl. Public Prosecutor submitted that page nos.90 and 91 of the booklet pointed out by the petitioner are

only statement of witnesses recorded u/s 161(3) Cr.P.C. and the mistake is only typographical error and no prejudice could have been caused to

the detenu.

For Authoor P.S. Cr. No. 111/2006, date of occurrence is 09.07.2006 on which date, the detenu is alleged to have threatened the complainant

and demanded Rs. 100/-. On the basis of complaint lodged by the complainant, Uruntai Mani, case was registered in Cr. No. 111/2006 u/s 341,

385 and 506 IPC of Authoor P.S. In the requisition for remand [booklet page 56], the date of occurrence is stated as 09.02.2006 instead of

09.07.2006.

The ground case was on 28.12.2006, on which date the detenu is alleged to have attempted on the life of the complainant Murugesan.

Statement of attestation witnesses in Observation mahazar, confession of the accused, seizure mahazar recorded u/s 161(3) Cr.P.C. are in page

nos.90 and 91 of the booklet. In those statements, date of occurrence of the ground case is stated as 28.10.2006. Observation mahazar and

Athatchi are also said to have been prepared only on 28.10.2006. In our view, typographical error in the statement of witnesses is likely to cause

confusion in the minds of the detenu.

The learned Addl. Public Prosecutor has submitted that the discrepancy in the date of occurrence of the case in Cr. No. 111/2006 and the

ground case Cr. No. 276/2006 are only typographical error crept in in the statements of witnesses and no prejudice could have been caused to the

detenu. Statement of the learned Addl. Public Prosecutor at the first blush, might appear to be attractive. But in our considered view, discrepancy

in the date of occurrence cannot be ignored as mere typographical error. Any variation in the date of occurrence and preparation of observation

mahazar and seizure mahazar is likely to cause confusion in the minds of the detenu.

In the case reported in 2006 (1) MLJ Crl 499 K. Dhanasekaran v. Commissioner of Police, Greater Chennai, and Anr., typographical error

crept in vernacular documents such as arrest report, which is vital document. Observing that the mistake cannot be termed as trivial typographical

error, in the said case, the Court has held:

The document relied on in this case is the arrest report, a vital document, which contains the date of arrest, as to when the detenu was taken into

custody, etc. The said document cannot be termed as an ordinary one and the mistake pointed out therein cannot be ignored lightly as trivial in

nature. Further, when the petitioner made a representation, pointing out these contradictory versions, alleging that he was not in a position to make

effective representation, it is seen that the approving authority viz., the Government, rejected the same only on the ground of typographical error.

The discrepancies found in column nos.2 and 4 in both English and Tamil versions cannot be termed as trivial in nature. The said discrepancy

amply shows the non-application of mind on the part of the detaining authority.

Applying the ratio of the above decision, in our opinion, the impugned detention order is vitiated due to the discrepancy in the date of occurrence.

The learned Counsel for the petitioner has raised yet another ground of challenge i.e. delay in consideration of representation and communication

of rejection letter. By perusal of chart, it is seen that the representation dated 13.02.2007 was received on 15.02.2007. Report was called for

from the Collectorate and the report was received on 26.02.2007. Minister has dealt with the file on 28.02.2007 and rejection letter was prepared

on 02.03.2007. But the rejection letter was sent to the detenu only on 09.03.2007 and rejection letter served to the detenu on 12.03.2007. The

reason for immediate consideration of representation is too obvious to be stressed. Personal liberty of a person is at stake. Any delay in

consideration of the representation would be infraction of fundamental right of a detenu to have his representation considered.

Right of early consideration of representation also includes communication of decision as to the rejection of representation. In 1981 Crl.L.J.

750 (SC) Harish Pahwa v. State of Uttar Pradesh, the Supreme Court has laid emphasis on the fact that not only that the representation of the

detenu must be considered and dealt with continuously, but that final decision be taken and that decision be communicated to the detenu. It seems

to us that in Harish Pahwa''s case, the Supreme Court has viewed the communication part of rejection of representation as a necessary facet to the

consideration of the representation. Normally, if a representation is made or if there is an appeal for the redressal of a grievance and a decision is

taken it must be communicated to the person who is interested therein. In our view, unexplained delay in sending the rejection letter to the detenu

has the effect of vitiating the detention order.

In 1990 Crl.L.J. 584 (SC) State of Punjab v. Sukhpal Singh, the Apex Court observed that it took two months from the date of submission of

the representation to the date of informing the detenu of the result of his representation. Eight days were taken by the Government for disposal of

the representation and the Supreme Court observed that the detenu''s right to prompt disposal of representation is violated. In the present case,

though the rejection letter was prepared on 02.03.2007, it was sent to the detenu only on 9.3.2007 and served on the detenu on 12.03.2007.

There is no explanation for delay in sending the rejection letter to the detenu, which in our view would vitiate the detention order.

For the foregoing reasons, the impugned detention order is set aside and this Habeas Corpus Petition is allowed. The detenu is directed to be

set at liberty forthwith unless he is required in connection with any other case.