Parthibarajan vs The Principal Secretary to Government

V.S. Ravi, J.—The petitioner, who is the brother of the detenu, namely, Moorthy alias Uthiramoorthy, branded as ''Goonda'' in M.H.S. Confdl No. 34/2014, dated 07.06.2014 by the District Collector and District Magistrate, Tirunelveli District, 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 come to the adverse notice of the police in three cases. 1st and 2nd adverse case have been registered in Cr. Nos. 537 and 538 of 2013 under Sections 307 and 302; and 387 and 506(ii) IPC respectively on the file of Munneerpallam Police Station. 3rd adverse case is registered in Cr. No. 23/2014 under Sections 341, 294(b), 387 and 506(ii) IPC on the file of Cherenmahadevi Police Station. 1st adverse case is under investigation and 2nd and 3rd adverse cases are pending trail when the order of detention is passed. The ground case has been registered in Cr. No. 175/2014 under Sections 307 and 506(ii) IPC on the file of Munneerpallam Police Station.

2.2 Para 6 of the grounds of detention reveals that the detenu has already been released on bail in the adverse cases and he is in custody in respect of the ground case registered in Cr. No. 175 of 2014. The second respondent in the detention order has referred in similar cases bail has been granted to one Ganesan in Crl.M.P. No. 4151 of 2011, dated 12.10.2011 by the Principal Sessions Court, Tirunelveli. However, the said case is not in any way connected to the case of the detenu, since the said order has been passed 3 years earlier. Hence, the reason given by the second respondent is not a valid one to come to a conclusion that the detenu is also likely to be released on bail. Further, in the ground case, the detention order is passed on 07.06.2014, even though the case is registered long earlier to the order of detention. Hence, there is no live link between the order of detention and the above said ground case. Further the petitioner has raised additional grounds that the detention order is passed by the second respondent on 07.06.2014, i.e. Government Holiday (Saturday). Hence, the detention order passed on the Government Holiday is not legally sustainable. Further, in the remand report in respect of Crime No. 175 of 2014, the date, on which, the accused has been produced before the Magistrate Court has not been stated. The order remanding the accused to judicial custody by the Magistrate Court is not disclosing the date of remand. The detaining authority without verifying the remand report as well as the remand order, passed order of detention without proper verification of records. On that ground also the detention order is vitiated. The remand report is also an incomplete document. Further, there is no explanation for not serving the booklet along the detention order on 07.06.2014, since the booklet is served only on 10.06.2014.

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:-

Besides 3 adverse cases, the petitioner is also involved in ground case in Cr. No. 175/2014. Further the detaining authority has passed the detention order in M.H.S. Confidential No. 34/2014, dated 07.06.2014 only after arriving at subjective satisfaction that the detenu has been acting in a manner prejudicial to the maintenance of Public order. Copy of the bail application has been furnished at booklet at page 277 and the Detaining Authority has rightly appreciated these facts in the grounds of detention. Further, as regards making reference about similar case the fact of Section of the law of the crime is mainly taken into consideration by the Detaining Authority. One cannot expect the occurrences of such a case to be identical or similar in all aspect. The impugned detention order has been passed, after careful application of mind, observing the provisions of Tamil Nadu Act, 14 of 1982. The facts narrated in the grounds of detention are sufficient to arrive at subjective satisfaction that the detenu has been acting in a manner prejudicial to the maintenance of public order. The adverse cases and ground case have been registered only on proper complaint. Further, the detenu acted in manner prejudicial to the maintenance of public order and in order to prevent Moorthy alias Uthiramoorthy from indulging in further act, which are prejudicial to the maintenance of public order, he has been ordered to be detained under the provisions of Tamil Nadu Act, 14 of 1982.

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 petitioner has enclosed along with the petition the detention order as well as grounds of detention. In the grounds of detention itself it is clearly pointed out, that the detenu has been charged for the offence punishable under Sections 302 and 307 IPC On behalf of the petitioner it is submitted that there is non application of mind by the Detaining Authority and hence, the order passed by the Detaining Authority are pre-determined. However, the respondents, in order to establish that the case are pending, more particularly for the grievous offence of murder, under Section 302 IPC and other cases, have filed in booklet containing several pages from page 1 to 339. Based upon the said material records only, the Detaining Authority has passed the impugned orders of detention. Further, the Detaining Authority has clearly stated in the detention order and grounds of detention that the above mentioned cases have been filed against the detenu based upon the relevant and material records and the detenu is a habitual offender in criminal activities and the petitioner is indulging in criminal activities which are detrimental to the maintenance of Public Order and therefore, the detention order has been passed to protect the lives of the human beings and properties. Further, in the grounds, the Detaining Authority has clearly stated that all the material records have been perused and there is a real possibility of the detenu coming out on bail. To substantiate the said possibility, the respondents have specifically stated in the counter affidavit that the petitioner''s activities are detrimental to the maintenance of peace in the Public and hence, the term ''Goonda'' has been invoked against the detenu in accordance with law and the averments made on behalf of the petitioner is far from truth. On a careful consideration of the materials on record, it is seen that there is sufficient force in the said argument.

Learned counsel for the petitioner in support of his contention has relied on the following decision;-

2001 (2) CTC 336 (NATESAN, M. v. STATE OF TAMIL NADU), wherein this court has held as follows;-

In this connection, even at the risk of repetition, we may observe that in a case of preventive detention, it is absolutely obligatory to communicate all relevant materials to the detenu in clear and unambiguous terms giving as much particulars as will facilitate making of an effective representation in order to satisfy the detaining authority that the order is unfounded or invalid.

However, in the present case, it is found that the detention order has been passed in accordance with the provision of Act 14 of 1982.

It is useful to extract the following judgments:-

a) Subramanian Vs. State of Tamil Nadu and Another, , wherein the Hon''ble Supreme Court has held as follows;-

It is well settled that the Court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The Court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the Court but for the detaining authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further 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. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion.

b) (2006) 2 M.L.J. (Crl.) 501 (J. Rajadurai v. State), wherein this Court has held as follows;-

Mistakes in the grounds of detention about the date of extension of remand and the Magistrate before whom the remand was extended. All the orders were supplied to detenu and available in paper book. Cannot claim that the detenu was prejudiced in any way. Petition dismissed.

c) (2006) 1 M.L.J. (Crl.) 281 (Udhya Rani v. The Commissioner of Police, Chennai), wherein this Court has held as follows;-

Though the Detaining Authority has stated that ''there is imminent possibility of his coming out on bail'', in the same sentence, the Authority has made it clear that ''by filing bail application'', it would be possible for him to come out on bail. Further, in similar cases bail orders have been granted by the Court concerned or by the higher Court. We are therefore of the view that the Detaining Authority, after possessing of all the details, has arrived at a proper conclusion, accordingly we reject the said contention.

d) Kirti Kumar Nirula Vs. State of Maharashtra and Others, , wherein the Hon''ble Supreme Court has held as follows;-

While in the present case in the counter filed before this Court the department specifically adverted to the said error and stated that that was a typographical error which should be ignored and it was also contended that by such error the opinion formed by the detaining authority did not, in any manner, get vitiated. The High Court accepted this argument and we find no reason to differ from the same. We are also of the opinion that this arguments pointed out in the grounds of detention has not, in any manner, prejudiced the detenu in making his representation, we do not think that the judgments relied upon by the learned counsel in support of her contention could really help the detenu on the facts of this case. As a matter of fact, the High Court in this regard rightly relied on a judgment of this Court in the case of Pushpadevi M. Jatia Vs. M.L. Wadhavan, Addl. Secretary, Government of India and Others, , wherein this Court ignored similar minor error found in the detention order.

e) Union of India and Others Vs. Arvind Shergill and Another, , wherein the Hon''ble Supreme Court has held as follows;-

Court can only examine whether the grounds disclosed are relevant to the object of the preventive detention Act. It cannot act as a Court of appeal.

f) V. Jagadeeskumar Vs. The Government of Tamil Nadu, , wherein this Court has held as follows;-

Interference in preventive detention orders by the Courts in Habeas Corpus Petitions was considered by the Supreme Court in the decisions reported in Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another, . The grounds on which the Courts may interfere in the detention orders are held to be very limited, which read thus,-

(i) that the impugned order is not passed under the Act under which it is purported to have been passed,

(ii) that it is sought to be executed against a wrong person,

(iii) that it is passed for a wrong purpose,

(iv) that it is passed on vague, extraneous and irrelevant grounds, or

(v) that the authority which passed it had no authority to do so.

It is seen that the copies, which form the ground for detention, have been supplied and no prejudice has been caused to the detenu. The duty of Court is to see that efficacy of safeguards provided in the law of preventive detention is not lost in mechanical, routine, dull casualness and chill indifference, on the part of the authorities entrusted with their application. However, in the present case, it is found that the respondents have passed the impugned order, in accordance with Law.

Further, the Court will not interfere if the detention order established that there are materials for the detaining authority to arrive at his subjective satisfaction for passing of detention order. Further, the material records have been supplied to detenu and available in the paper book and the petitioner cannot claim that the detenu has been prejudiced in any way. Detention can be passed, provided the detaining authority has the relevant material before it, so as to come to a reasonable opinion that from the surrounding circumstances, coupled with the incident in question, a satisfaction as to the future illegal activities of the detenu, could be inferred. The present Detention Order is valid for maintenance of Public order. There are compelling reasons for preventive detention of the detenu. Hence, this Court''s interference is not called for. The Court can only examine whether the grounds disclosed are relevant to the object of the preventive detention Act. It cannot act as a Court of Appeal.

When the subjective satisfaction is well based on the case which either ended in conviction or which the accused in facing trial at the time of passing the orders, the said satisfaction arrived at by the authority cannot be termed as wrong. In such circumstances, the orders of the Detaining Authority has to be upheld. There are no material inconsistency affecting validity of the impugned order. Detention order can be justified if a reasonable inference can be drawn from detenus past conduct, about likelihood of his repeating the prejudicial activity, in future.

For the above mentioned reasons, we are of the view that there is no infirmity in the order of detention passed against the detenu and no case is made out to interfere with the order of detention dated 07.06.2014 and the habeas corpus petition is dismissed.