Saranya vs State of Tamil Nadu and Others

P.R. Shivakumar, J.—The petitioner is the sister of the detenu. The detenu was detained by the second respondent by his Detention Order in Detention Order No. 6/BCDFGISSSV/2015, dated 28.07.2015, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No. 127 of 2015 on the file of Palayamkottai Crime Police Station for alleged offences punishable under Sections 341, 387 and 506(ii) IPC and adverse cases in Crime No. 83 of 2014 on the file of Cheranmahadevi Police Station for the alleged offence punishable under Sections 457, 380, 395, 397 of IPC altered into 457, 380, 395 and 397 IPC r/w Section 3(1) of Tamil Nadu Properties (Prevention of Damage and Loss) Act, in Crime No. 127 of 2015 on the file of Palayamkottai Crime Police Station for the alleged offence punishable under Section 392 IPC and in Crime No. 153 of 2015 on the file of Pettai Police Station for the alleged offence punishable under Section 379 of IPC.

Though several grounds have been raised by the petitioner in the affidavit filed in support of this petition, the learned counsel for the petitioner seeks the leave of this Court to raise additional grounds and we permit the same. The main contentions of the learned counsel for the petitioner are that:

"(a) The arrest intimation in the ground case was not served on any of the family members of the detenu and thereby a prejudice was caused as the opportunity to make an effective pre-detention representation was lost and

(b) The similar case particulars provided by the detaining authority in the grounds of detention show non-application of mind on the part of the detaining authority."

In elaboration of the above said contentions, the learned counsel for the petitioner referred to the arrest memo, a copy of which is available at Page No. 363 of the booklet, showing the arrest of the detenu in the ground case and points out the fact that the address of the detenu and the address of the person to whom intimation was allegedly given, are different. The learned counsel for the petitioner also contends that though one Murugan is stated to be the younger brother of the detenu, the name of the father of the detenu and that of the father of the said Murugan differ and that the same itself will make it clear that the said Murugan is a fictitious person. Regarding the non-application of mind as to the similar case particulars, the learned counsel for the petitioner submits that in the bail order passed in Crime No. 127 of 2015 (Crl.M.P. No. 2450/2015), the offence alleged was one punishable under Section 392 IPC which was triable by a Judicial Magistrate, whereas, the detenu was arrested for offences punishable under Sections 457, 380, 395, 397 of IPC altered into 457, 380, 395 and 397 IPC r/w Section 3(1) of Tamil Nadu Properties (Prevention of Damage and Loss) Act, in which he has not been granted bail till the date of the detention order. It is the further contention of the learned counsel for the petitioner that in the similar case bail order was passed in a petition purportedly filed under Section 436 Cr.P.C., whereas the said provision is not applicable in case of non-bailable offences, was not taken note of by the detaining authority and the same exhibits non-application of mind on the part of the detaining authority while considering the imminent possibility of the detenu coming out on bail in the ground case and the adverse cases, especially the first adverse case.

We heard the submissions made by the learned Additional Public Prosecutor on the above said submissions made on behalf of the petitioner, and the submissions made by the learned Additional Public Prosecutor are also taken into consideration.

We have been taken through the copy of the arrest memo in the ground case which is found at Page No. 363 of the booklet. The detenu is described as follows:

"Baskar 24/15, S/o. Samuthirapandi, 95B, Karumari Amman Kovil Street, M.G.R. Nagar, Pettai."

The person to whom intimation was allegedly given is described as follows:

"Murugan 26, S/o. Kutty Thevar, 2/126, Esakki Amman Kovil Street, Kalvai."

A perusal of the same will make it clear that both are not brothers and their fathers'' name differ. The addresses also differ. It is also brought to the notice of the Court that Pettai is in Tirunelveli, whereas Kalvai is a place in Thoothukudi District. Hence, we are inclined to accept the first ground raised by the learned counsel for the petitioner to the effect that prejudice was caused by not intimating the arrest of the detenu to the family members of the detenu and that thereby they were prevented from making an effective pre-detention representation. A copy of the bail petition in the similar case is found at Page No. 265 and the order of the Judicial Magistrate No. 1, Tirunelveli in the said bail petition is found at Page No. 267 of the booklet. A perusal of the same will make it clear that the offence alleged therein was one punishable under Section 392 IPC. As per the schedule, the offence under Section 392 IPC, viz. Robbery is classified as non-bailable offence punishable with imprisonment up to 10 years and fine. As the offence has been classified to be a non-bailable offence, Section 436 Cr.P.C. will not apply. However, the order came to be passed in a petition filed under Section 436 Cr.PC without a mention that though the petition was filed under Section 436 Cr.PC, the order was passed under Section 437 Cr.PC. This aspect was not adverted to, by the detaining authority, which, as rightly contended by the learned counsel for the petitioner, shows non-application of mind on the part of the detaining authority. In addition, offence under Section 392 IPC is one triable by a Judicial Magistrate (First Class), whereas one of the offences for which the detenu was remanded in the first adverse case is an offence under Section 395 r/w 397 IPC triable by a Court of Sessions. Hence, improper comparison was made revealing non-application of mind on the part of the detaining authority. Accordingly, on both grounds, the detention order is liable to be set aside.

In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 28.07.2015, made in Detention Order No. 62/BCDFGISSSV/2015, by the second respondent, the Commissioner of Police, Tirunelveli City, Tirunelveli, and directs the release of the detenu by name S. Baskar, S/o. Samuthirapandi, aged about 22 years forthwith, if his custody/detention is not authorised in specific cases or by any other detention order.