Mallika vs The State of Tamil Nadu

Elipe Dharma Rao, J.—All these petitions are inextricably interconnected with each other and hence they all have been heard together and

disposed of by this common order.

All the three detenus, along with other accused, are alleged to have committed the offences punishable under Sections 364-A, 392, 394 and

398 IPC, for which a case in Cr. No. 754/2008 has been registered by the Inspector of Police, Crime, K-10 Koyambedu Police Station. It is

alleged that on 14.7.2008 night at about 9.15 p.m., all the accused persons, coming by a two wheeler and a Maruthi van, intercepted the auto

bearing registration No. TN-01W-2921, wherein the defacto-complainant Balasubramanian and two others were travelling, at Koyambedu

Roundana, opposite to Hotel Shan Royal, and beat the auto driver and pushed him and at the point of knife and log, threatened the defacto-

complainant and two others, who were sitting in the auto with cash in their hands and assaulted them and kidnapped them in the van in which they

came and also threatened the public and later they snatched the cash of Rs. 40 lakhs from the defacto-complainant and one Sivamurugesan and

took them to Madhavaram and underneath the Madhavaram bridge, they pushed one by one and escaped from the spot in the said van.

It is further alleged that while the detenus in H.C.P. Nos. 1535 and 1536 of 2008 viz. Francis and Barath @ Bharat were absconding in the

above said Cr. No. 754 of 2008 of the K-10 Koyambedu Police Station, they along with other accused namely Alex @ Savarimuthu Alex, Bala

@ Balamurugan, Thomaiyarajan and Kattan Mohan, on 18.7.2008 at about 18.00 hours, went to the Fast Food centre of one Babu, at Third

Avenue road, Arumbakkam, Chennai in a Qualis car bearing Registration No. TN-09 U-7273 and had fried rice and when they were about to

move without paying money, the said Babu insisted for payment of the bill. Questioning the dareness of Babu in insisting payment, the accused

Alex @ Savarimuthu Alex caught hold of Babu and the other accused Bala @ Balamurugan beat him over his cheeks and all the other accused,

including the detenus Barath @ Bharat and Francis, have assaulted him and the accused Alex @ Savarimuthu Alex removed the gold chain of the

complainant Babu. It is alleged that the detenu Barath @ Bharath, brandishing the knife, threatened the complainant with dire consequences. It is

further alleged that the detenus Francis and Barath @ Bharath pushed the complainant Babu on the road and kicked him over his person and when

Babu raised hue and cry, the public nearby came to his rescue and all the accused persons, threatening the nearby shopkeepers and public,

escaped from the scene. Thereupon, on the complaint lodged by Babu, a case in Cr. No. 442/2008 of K-3 Aminjikarai Police Station came to be

registered for the offences punishable under Sections 147, 148, 341, 323, 384 and 386 IPC.

Likewise, regarding the detenu in H.C.P. No. 1537 of 2008, by name Kumar, is concerned, it is alleged that while he was absconding in the

above said Cr. No. 754 of 2008 of K-10 Koyambedu Police Station, on 16.7.2008 at 8.30 hours, joining hands with other accused, at Red Hills

Road and Makkaram Thottam junction, had wrongfully restrained one Sekar and at the point of knife, committed robbery of gold ring and cash of

Rs. 1,000/= from the said Sekar and on the hue and cry raised by Sekar, when public came to his rescue, all the accused hurled cool drink bottles

and threatened the public and escaped from the spot by boarding a Maruthi van bearing Registration No. TN-05Y-2235. Thereupon, based on

the complaint lodged by Sekar, a case in Cr. No. 364/2008 of V-4 Rajamankalam Police Station, for the offences punishable under Sections 341,

427, 336, 397 and 506 (part II) IPC.

It is seen from the materials placed on record that the detenus Francis and Barath @ Bharath surrendered before the XVI Metropolitan

Magistrate, George Town, Chennai on 23.7.2008, in K-10 Koyambedu Police Station Crime No. 754 of 2008 and they were remanded to

judicial custody, which was extended till 27.8.2008. It is also seen that both the above said detenus Francis and Barath @ Bharath were taken to

police custody by the Police, by filing necessary applications before the remand Court and pursuant to the confession statement of the detenu

Francis, a sum of Rs. 3 lakhs was recovered from him and pursuant to the confession statement of the detenu Barath @ Bharath, a sum of Rs. 2.5

lakhs was recovered from him.

It is also seen from the materials placed on record that during the course of investigation, the Inspector of Police, K-10 Koyambedu Police

Station arrested the detenu Kumar (concerned with H.C.P. No. 1537 of 2008) on 16.7.2008 at 14.00 hours at Redhills Road and 200 Feet Road

junction along with other accused Michel, Yogeswaran @ Mani and a cash of Rs. 10.25 lakhs was also recovered from them under a cover of

mahazar and their confessional statements were also recorded and later they were produced before the V Metropolitan Magistrate Court, Egmore

Court, Chennai and were remanded to judicial custody till 31.7.2008, which was extended periodically till 27.8.2008.

When all the three detenus were in custody, as remand prisoners, the impugned orders of detention, all dated 16.8.2008, were slapped on

them, which are challenged in these Habeas Corpus Petitions.

So far as the detention of a person, while he is in custody and while answering the question raised that since the detenu being in custody, the

anticipated and apprehended acts were practical impossibilities, the Honourable Apex Court in Union of India (UOI) Vs. Paul Manickam and

Another, has held as follows:

So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt

with in several cases. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining

authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on

bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the

detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular

case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the

maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority

must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining

authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are

proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be

validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on

bail, the order would be vitiated. (See N. Meera Rani Vs. Government of Tamil Nadu and Another, and Dharmendra Suganchand Chelawat and

another Vs. Union of India and others, The point was gone into detail in Kamarunnissa and Others Vs. Union of India and another, . The principles

were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is

aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a

real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt

essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In

the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail.

In the cases on hand, the Detaining Authority, in Para No. 4 of the grounds of detention, has clearly stated that he is aware of the fact that the

detenus are in custody in Cr. No. 754 of 2008 of K-10 Koyambedu Police Station and that there is real possibility of them coming out on bail,

though at present they have not moved any bail petitions, since in similar cases bails are granted by the Courts, after a lapse of time. The Detaining

Authority has further stated that if the detenus come out on bail, they will indulge in further activities, which will be prejudicial to the maintenance of

public order and the recourse to normal criminal law would not have the desired effect of effectively preventing them from indulging in such

activities, which are prejudicial to the maintenance of public order. Therefore, it is abundantly clear that the Detaining Authority is very well aware

of the fact of the detenus being in custody and the possibility of their coming out on bail and the impugned orders of detention were slapped on

them since, the Detaining Authority has a reason to believe that if they come out on bail, they will indulge in activities which are prejudicial to the

maintenance of public order. Therefore, since all the guidelines prescribed by the Honourable Apex Court in such cases, in the above judgment,

have been complied with by the Detaining Authority, we find no illegality or irregularity in passing the detention orders against the detenus, while

they were in custody.

The main point urged on the part of the detenus is that though the orders of detention were passed on 16.8.2008, they were served with only

the order of detention and the grounds of detention were not served on them within five days from the date of detention and therefore, on this sole

ground, the impugned orders of detention are liable to be quashed.

As has already been stated supra, as on the date of order of detention, all the detenus were in custody as remand prisoners in Cr. No. 754 of

2008 of the K-10 Koyambedu Police Station at Central Prison, Puzhal, Chennai. Though the detention orders are dated 16.8.2008, they have

been served on the detenus on 18.8.2008 at the Central Prison, Puzhal, Chennai, as could be seen from the endorsements available on the back

side of the detention orders. Thereupon, the grounds of detention were served on them on 23.8.2008 at the Central Prison, Puzhal, Chennai, under

their acknowledgements, as could be seen from the endorsements found on the back of the grounds of detention. Thus, the Detaining Authority has

furnished the grounds of detention within five days of the serving of the order of detention on the detenus, as has been mandated u/s 8 of the Act

14 of 1982 and as has been repeatedly held by the upper forums of law, particularly by the Honourable Apex Court right from the judgment in

Ibrahim Ahmad Batti @ Mohd. Akhtar Hussain @ Kadar Ahmed Wagner @ Iqubal @ Gulam v. State of Gujarat and Ors. 1983 SCC (Cri) 66.

Therefore, there is no delay, whatsoever, in furnishing the grounds of detention to the detenus.

At this juncture, we also deem it fit to mention that when the similarly placed accused persons by name Alex @ Sowri Muthu Alex, son of

Sengoal and Michel, son of Arokiyam, have moved this Court, through their kith and kin, challenging the detention orders passed against them, by

filing H.C.P. Nos. 1888 and 1889 of 2008, the Division Bench of this Court, headed by one of us (Elipe Dharma Rao, J.) has dismissed both the

above said H.C.Ps. by a common order dated 6.1.2009. Since all the three H.C.Ps. on hand also arose under the same facts and circumstances

and no ground, much less a considerable ground, has been urged on the part of the detenus, we see no ground to take a different view, than the

one taken in H.C.P. Nos. 1888 and 1889 of 2008, dated 6.1.2009.

For all the above reasons, all the above Habeas Corpus Petitions are dismissed.