Philip Manovan Jebaraj vs State

P.K. Misra, J.—Heard the learned Counsels appearing for the parties.

The order of detention, which was made against one Issac Samuel under Tamil Nadu Act 14/82 is being challenged by the son of the detenu, by

filing this Habeas Corpus Petition.

The detention order was signed by the Commissioner on 18.11.2006 and it was served on 19.11.2006. In the grounds of detention, it has been

indicated in para 3 as follows:

Thiru. Sathiyaseelan, Thiru. Joseph Solomon and Tr. J.D. solomon and Thiru Isaac Samuel, formed a Trust in the name of ""Alleluiah Full Gospel

Ministries Mission India and Weaker Section Development Service Trust of India (AFGM-M India)"" and the aim of the trust was to construct

dwelling houses for the poor public by getting foreign aid. The trust was registered. Tr. Sathiyaseelan is the President of the above Trust. Thiru.

Joseph Solomon is the Secretary of the Trust. Thiru. Solomon and Thiru. Samuel are the members of the said Trust. The office of the trust is functioning at No. 36, Thana Street, Purasaiwakkam, Chennai-7. Tvl. Babu, Annapoorani and Rajasekaran are working in the above office.

It has been further indicated in the grounds of detention that the members of the Trust were collecting money from various innocent persons on the pretext that houses would be constructed and allotted to such persons on payment basis. It is further indicated that several complaints have been filed by members of public on the basis of which criminal cases have been registered.

In the grounds of detention, there is also a reference to the fact that one Subramaniam went to the office of Joseph Solomon on 20.6.2006. It

has been indicated therein as follows:

While signing the agreement Thiru. J.D. Solomon, Thiru Isaac Samuel, Office Manager, Thiru. Babu, Annapoorani and Thiru. Joseph Solomon's personal body guards Tvl. Neelamegam and Rajasekaran were also present.

(emphasis added)

On the basis of this allegation, the Commissioner of Police, Chennai ultimately came to the conclusion that the detention of the present detenu was necessary to prevent him from indulging in such further activities in future, which are prejudicial to the maintenance of the public order under the provisions of the Tamil Nadu Act 14 of 1982. In the grounds of detention, it is further recorded that the detenu can make a representation to the different authorities. The present Habeas Corpus Petition was filed by the son of the detenu, on 8.12.2006. The Habeas Corpus Petition was admitted by a Division Bench of this Court on 13.12.2006 and notice was ordered returnable by 19.01.2007. Thereafter, the matter was included

in the hearing list on 26.3.2007. On the request of the learned Counsel for the State, the matter was directed to be listed on 5.4.2007 ""for filing

counter finally"". When the matter is taken up today, the learned Additional Public Prosecutor again prayed for time saying that some more time

may be given. We thought it fit not to grant any further time, because, in our opinion, the respondents had sufficient time to file counter and 15

weeks have elapsed in the meantime, from the date of admission. Moreover, it is made clear that by order dated 26.3.2007, time was granted

finally.

In the Habeas Corpus petition several grounds have been placed. However, we are riveting our attention, only on three aspects.

The first question raised is relating to delay in disposal of the representation. In this connection, the Additional Public Prosecutor has furnished before us a chart indicating the manner in which the representation has been dealt with. From such chart, it appears that the representation dated

30.11.2006 was received by the Detaining Authority on 4.12.2006. After receiving the representation, remarks were called for from the

Sponsoring Authority on 05.12.2006 and such remarks were received on 6.12.2006 and the matter was sent to Government on 08.12.2006. The remarks were received by the Government on 11.12.2006. But the file was submitted on 18.12.2006. Thereafter, ultimately, the Minister dealt with the file on 21.12.2006. It has been laid down in the decisions of the Hon'ble Supreme Court as well as by this Court that the representation made on behalf the detenu is required to be disposed of expeditiously, without any delay and if there is any delay at any stage, there should be proper explanation for such delay.

In the present case, even though admittedly, remarks had been received on 11.12.2006, the file was submitted only on 18.12.2006, after one

week. There is no explanation forthcoming, explaining this delay. There can be hardly any reason, but, for mere submission of the file before the

Under Secretary to the Government, one week was taken by the office. In view of the unexplained delay, the detention order is liable to be

quashed.

Apart from the above, learned Counsel for the petitioner has submitted that it is recited in the grounds of detention in para 3, which has been

already quoted, that "the Trust was registered". The detenu soon after his detention made a representation clearly indicating that he was merely an

employee and he was not a Trustee. It was further indicated therein that a copy of the Trust Deed may be furnished to him. Such representation has been rejected on 23.12.2006 wherein nothing is indicated regarding the existence or non-existence of the Trust Deed and similarly nothing is indicated regarding the assertion of the detenu that he was a mere employee and not a Trustee.

Learned Counsel for the petitioner submitted that once a representation is made, the appropriate authority is required to bestow serious

attention to such representation and such representation should not be dealt with, in a cavalier fashion. Hence, it is submitted that when he was a mere employee, which factor appears to be prima facie supported by the very complaint made by one Subramanian that Issac Samuel was a

Office Manager, should have received very serious attention rather than being rejected in a mechanical manner. Similarly in the representation it was specifically requested for furnishing of a copy of the Trust Deed. In the rejection of the representation, similarly, nothing has been indicated about such aspect. On the other hand, in course of hearing, the learned Additional Public Prosecutor, on instructions, stated that no such Trust

Deed was before the Detaining Authority and the Detaining Authority had come to the conclusion that the detenu was a trustee on the basis of the confession made by the detenu before the Police Officer. It is no doubt true that even though confession before the Police Officer may not be

admissible, in a criminal trial, for the purpose of order of detention, there is no embargo for the detaining authority for relying upon the confession.

We do not find any reference as to the so called confession of the detenu in the order of detention even though in the booklet, the confession is

available. It cannot be concluded that in fact the Detaining Authority has come to the conclusion that the detenue was a trustee on the basis of the

confession. On the other hand, in very para 3, it has been stated that Trust was formed and the Trust was registered. This conclusion in para 3 of the grounds of detention would clearly show that it is a registered trust may, indicate non application of mind. On the other hand, when specifically a detenu wanted a copy of the Trust Deed, nothing was furnished to him and even it was not indicated whether Trust Deed was in existence nor it was indicated that the reference to the Trust Deed was on the basis of the confession. In fact, in the representation also, the detenu had claimed that no such confession has been made by him before the Police Officer. Be that as it may, the manner in which the representation has been dealt with indicates, clear non application of mind, while disposing of the representation, even though it has been held in several decisions that the

Detaining Authority or the appropriate authority while considering the representation should consider such representation in all seriousness and on the basis of this conclusion, the detention order is liable to be quashed.

The next contention is required to be considered even more seriously. It has been specifically stated in the representation that the grounds of

detention had been given to the detenu only on 28.11.2006 and not on 23.11.2006. Only the signature of the detenu had been taken while serving the grounds of detention and subsequently, the date has been put. This was a specific complaint made in the representation. While rejecting the representation also nothing has been indicated on this aspect. Moreover, a specific averment to that effect has been made in the affidavit filed in support of this Habeas Corpus Petition in ground (b). This affidavit clearly corroborates the contemporaneous complaint made by the detenu on this aspect. In the absence of any counter affidavit and in view of the fact that in a contemporaneous representation, such grievance had been

raised, we are inclined to accept this submission also. Once this conclusion is reached, we are of the view that the grounds of detention, having not been served within the stipulated period of five days, the detention order is liable to be quashed on this score also.

Even though several other grounds has been raised by the learned Counsel for the petitioner, some of which prima facie appears to be

acceptable, we feel all those aspects may not be gone into as we have already quashed the order of detention in toto.

Accordingly, this Habeas Corpus petition is allowed.