V. Raju vs The Secretary to Government, Home, Prohibition and Excise Department and Others

P.R. Shivakumar, J.—The petitioner is the father of the detenu. The detenu has been detained by the second respondent by his order in Detention Order No. 98/BCDFGISSSV/2015, dated 06.08.2015, 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. 764 of 2015 registered on the file of B6 Jaihindpuram Police Station for offences punishable under Sections 392 r/w 397 and 506(ii) of the Indian Penal Code and following two adverse cases:--

"(i) Crime No. 610 of 2014 registered on the file of Jaihindpuram Police Station for offences punishable under Sections 147, 148, 294(b), 307 and 506(ii) of the Indian Penal Code; and

(ii) Crime No. 17 of 2015 registered on the file of B5 Soughgate Police Station for offences punishable under Sections 392 r/w 397 and 506(ii) of the Indian Penal Code."

The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of the Goonda and that his presence at large would be prejudicial to the maintenance of public order and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition.

Though a number of grounds have been raised assailing the order of detention, the learned counsel for the petitioner mainly relies on the following contentions:--

"(i). The subjective satisfaction expressed by the Detaining Authority regarding the imminent possibility of the detenu coming out on bail in the ground case shows non-application of mind on the part of the Detaining Authority and it can be even termed as ipse dixit. The similar case, in which the accused therein was released on bail, was a case registered for offences punishable under Sections 392 r/w 397 and 506(ii) of the Indian Penal Code, but bail was granted in the said case noticing the fact that the accused therein suffered incarceration for 114 days and it was also contended that the investigation might have been completed. However, in the ground case, the detenu was arrested on 21.07.2015 and within 15 days of his arrest, the detention order came to be passed. Hence, the comparison made was not proper; and

(ii). There was denial of reasonable opportunity to challenge the order of detention in an effective manner by the non-supply of a copy of the Government Order extending the delegation of power to the Detaining Authority. The failure to supply a copy of the Government Order even after a representation was made in writing seeking supply of the same amounts to denial of justice vitiating the order of detention itself."

The submissions made by the learned Additional Public Prosecutor in reply to the above said contentions raised by the learned counsel for the petitioner are also heard.

The Detaining Authority has taken note of two adverse cases and one ground case. In both the adverse cases, the detenu had been granted bail. After coming out on bail in those cases, the detenu is alleged to have committed the offences for which the ground case was registered. Though the ground case in Crime No. 764 of 2014 came to be registered on the file of Jaihindpuram Police Station for offences punishable under Sections 392 r/w 397 and 506(ii) of the Indian Penal Code and the similar case referred to by the Detaining Authority was also registered for offences punishable under the very same provisions, the comparison of the bail order granted in the similar case with the ground case to express the subjective satisfaction of the imminent possibility of the detenu coming out on bail in the ground case shall not be proper, as the Detaining Authority did not advert to the fact that in the similar case, bail was granted after 114 days of incarceration and also on the basis of the representation that the investigation had been completed, whereas in the ground case, the investigation was in the nascent stage and within 15 days of the arrest of the detenu in the ground case, the detention order came to be passed. Had the Detaining Authority referred to the above said differences and expressed subjective satisfaction after adverting to those aspects, this Court may not find fault with the subjective satisfaction expressed by the Detaining Authority. As the Detaining Authority has not adverted to those differences and explained the same, the contention of the learned counsel for the petitioner in this regard has got to be sustained.

So far as the other contention is concerned, admittedly, the power delegated to the Detaining Authority was being periodically extended by fresh Government Orders passed once in three months and a copy of the latest Government Order extending the delegation, which has been referred to in the detention order, has not been furnished to the detenu. Though non-furnishing of the same initially may not be taken serious note of, when a representation is made seeking a copy of the said Government Order to make an effective challenge to the detention order, such request ought to have been considered properly and the failure to do so and the mechanical rejection of such request amounts to denial of reasonable opportunity to make an effective challenge to the order of detention. On that score also, the order of detention is liable to be set aside.

Before parting with the case, this Court wants to record its disapproval of the tendency of the police to go for an order of preventive detention in so many cases without making an attempt to prevent the release of hard-core criminals from the specific criminal cases in which they were arrested and detained with the order of remand. The casual manner in which the orders of detention are proposed and passed may give rise to an inference that such orders will be lacking bona fide. Resort to preventive detention laws should be made sparingly with circumspection and only in deserving cases. While doing so, the orders should be passed without room for any mistake capable of vitiating the order. Detention orders are to be strictly construed, as they authorize the deprivation of personal liberty without one being made to face a trial and convicted after finding guilty. That is the reason why, even the discrepancies, may be minor, are also construed to be the ground for setting aside the order of detention.

In the result, the Habeas Corpus Petition is allowed and this Court sets aside the Order of Detention dated 06.08.2015, made in Detention Order No. 98/BCDFGISSSV/2015, by the second respondent, the Commissioner of Police, Madurai City, Madurai and directs the release of the detenu, by name Siva @ Sivakumar, aged about 21 years, S/o. Raju, if his continued custody is not authorised in specific cases or by any other detention order.