THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE DR.JUSTICE ANITA SUMANTH H.C.P.Nos.1188, 1189 and 1262 of 2016 Jayaraman .. Petitioner in H.C.P.Nos.1188 & 1189 of 2016 P.Sumathi ... Petitioner in H.C.P.No.1262 of 2016 vs.
1. The State of Tamil Nadu, rep.by Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009
2. The District Magistrate and District Collector, Tiruppur District, Tirupur. .... Respondents 1 and 2 in H.C.P.Nos.1188 and 1189 of 2016
3. The Deputy Superintendent of Police, Udumalpet, Tiruppur District. ... 3rd respondent in H.C.P.No.1262 of 2016 Prayer : Petitions filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records relating to the detention orders passed by the 2nd respondent in No.Crl.M.P.No.1/Goonda/2016, No.Crl.M.P.No.2/Goonda/2016 and No.Crl.M.P.No.3/Goonda/2016 dated 12.5.2016, respectively and quash the same and direct the respondents herein to produce the body of the detenues (1) Mrs.Chinnasamy, S/o.Balusamy, aged about 39 years, now detained at Central Prison, Coimbatore and (2) Annalakshmi, W/o.Chinnasamy, aged about 35 years, now detained at Special Prison for Women, Coimbatore and (3) Mr.P.Pandithurai, son of Mr.Pandi, aged about 49 years, now confined in Central Prison, Tiruchirapalli, before this Court and set them at liberty.
For Petitioners .. Mr.S.Mahendrapathy For Respondents.. Mr.V.M.R.Rajendran,Addl.P.P. for R1 COMMON ORDER (The order of the Court was made by S.NAGAMUTHU,J. ) In these habeas corpus petitions, the detention orders made by the District Collector/District Magistrate, Tiruppur District, detaining the detenues, by name, Mr.Chinnasamy, Mrs.Annalakshmi and Mr.Pandithurai, under Section 3 of the Tamil Nadu Act 14 of 1982, branding them as 'Goondas', are under challenge.
2. The detenues namely, Mr.Chinnnasamy, Mrs.Analakshmi and Mr.Pandithurai are the father, mother and uncle, respectively, of one Gowsalya, who was then doing B.E.Computer Science course at P.A.College, Pollachi. It is alleged that Gowsalya had fallen in love with one Mr.Shankar, who was her bus-mate and they married on 12.07.2015, at 'Padha Vinayagar Temple' at Palani. This marriage was not accepted by the detenues and they opposed the same. It is alleged that Ms.Gowsalya belongs to Gounder community, whereas, Mr.Shankar belongs to Scheduled Caste. After the marriage, they were living together. It is alleged that on 13.3.2016, in the afternoon, when Mrs.Gowsalya along with her husband Mr.Shankar came to Udumalpet for purchase and while they were returning to Kumaralingam, they had to cross the road infront of 'UKP Complex', Eswari Departmental Store. It was around 2.15 p.m. At that time, it is alleged that five persons came in a motorcycle with billhooks and knives in their hands; pulled down Mr.Shankar all of a sudden and attacked him and also attacked Mrs.Gowsalya. Mr.Shankar was brutally killed instantaneously. Mrs.Gowsalya was taken to the hospital and later on, fortunately, due to medical intervention, she survived. This occurrence had sent shock waves across the State and even beyond the State. In connection with the said occurrence, a case in Crime No.194 of 2016, under Sections 147, 148, 307, 302 and 149 IPC and Section 3(2)(Va) of Prevention of Atrocities Act (Amendment Act) 2015 was registered.
3. During the course of investigation, it came to light that the detenues Mr.Chinnasamy, Mrs.Annalakshmi and Mr.Pandithurai also had involved in the said brutal killing of Mr.Shankar and in the attempt made on the life of Mrs.Gowsalya. They were arrested by the police and they were remanded to the judicial custody by the jurisdictional Magistrate. It is alleged that there was real possibility of these three detenues coming out on bail and there was also imminent possibility of these accused involving in similar crimes. Therefore, the Inspector of Police, Udumalpet Police Station, took action under Act 14/1982 for detaining these detenues under the said Act, for preventive detention of the detenues for a period of one year. Considering the papers submitted by the Sponsoring Authority, the District Collector/the District Magistrate, Tiruppur, passed the detention orders on 12.5.2016, in Crl.M.P.No.1/Goonda/2016 against
Mr.Pandithurai. Accordingly, they were lodged in the Central Prison at Coimbatore, Special Prison for Women, Coimbatore and Central Prison at Tiruchirappalli, respectively. Challenging these detention orders, the petitioners, who are the close relatives of the detenues, have come up with these habeas corpus petitions.
4. In these habeas corpus petitions almost common grounds have been raised. One of the common grounds raised is that the representation sent by each detenue, opposing the detention order concerned, was not properly considered by the Government and there was inordinate delay in considering the same. It is also submitted that since there is a single case against the accused and since they have got no bad antecedents, such as involvement in any other case, the decision of the detaining authority, branding them as 'Goondas', in terms of the Act is not correct and the same would only go to reflect the non- application of mind on the part of the detaining authority as well as the Government. It is also contended that the detenues did not file any petition before any Court, seeking bail. When that was the factual situation, the statement of the detaining authority that there was real possibility of these accused coming out on bail, is also not based on any sound reasons and the same also would reflect only the total non-application of mind on the part of the detaining authority. There are also other grounds raised, which we do not want to discuss, as it would be only superfluous.
5. The learned Additional Public Prosecutor Mr.V.M.R.Rajendren would vehemently oppose all these habeas corpus petitions. According to him, simply because there was some delay in considering the representations of the detenues, it cannot be construed that there was non-application of mind on the part of the Government. He would further submit that at any rate, there was no prejudice caused to the detenues at all because of the delay in considering the representations. He would further submit that to brand a person as a ‘Goonda’ there need not have been an element of habitual misdeeds on the part of the detenue. The learned Additional Public Prosecutor would further submit that the papers placed before the detaining authority were more than sufficient to make out a clear case to the satisfaction of the detaining authority that these detenues would fall within the sweep of the definition of “Goonda’ as defined in Section 2(f) of the Act. The learned Additional Public Prosecutor would submit that though it is true that these detenues had not filed any application before any Court seeking bail, the possibility of these detenues moving such application for bail before the Court cannot be ruled out. Thus, according to him, there was real possibility of these accused coming out on bail and there was also imminent possibility of these detenues involving in similar crimes. Thus, according to the learned Additional Public Prosecutor, with a view to prevent the detenues from acting in any manner prejudicial to the maintenance of public order, the detaining authority felt it necessary that these people should be detained as ‘Goondas’ for a period of one year. Thus, according to the learned Additional Public Prosecutor, there are no valid grounds to interfere with the detention orders.
6. We have considered the above submissions. Let us now, at the first, take up the argument relating to the delay in considering the representations of the detenues. Admittedly these detenues made written representations to the Government as early as on 10.06.2016. These representations were admittedly received by the Government on 10.06.2016 itself. The learned Additional Public Prosecutor would submit that immediately on 13.6.2016, the Government called for remarks from the detaining authority, namely, the District Magistrate/the District Collector, by letter in Mu.ka.Ne.734/HP&E/16. The District Collector in turn, by his proceedings, in Ku.Pa.Ma.No.01/Goonda/16, dated 18.7.2016, sent his remarks on 18.7.2016. The same was received by the Government on 19.7.2016. The learned Additional Public Prosecutor would submit that after receipt of the said remarks, the file was submitted to the authority on 22.7.2016. The Under Secretary to the Government dealt with the same on 22.7.2016. The Deputy Secretary dealt with the same on the same day and the Hon’ble Minister dealt with the same on 5.10.2016. The rejection letter was sent to the detenues on 8.10.2016. From these undisputed facts, it is crystal clear that the District Collector had caused delay between 13.6.2016 and 18.7.2016. Barring the holidays, during this interregnum period, almost there was a delay of one month caused by the Collector in forwarding the remarks to the Government. There is no explanation whatsoever as to why this much of inordinate delay was caused by the sponsoring authority to submit his remarks to the Government. Though the remarks were received by the government as early as on 19.7.2016 and though it is stated that the Deputy Secretary dealt with the file on 22.7.2016, the orders rejecting the representations were made only on 5.10.2016. In this, again there is inordinate delay. Barring the holidays, it can be said that there was more than 2 ½ months delay in passing orders on the representations of the detenues.
7. In the light of the above undisputed fact that there was inordinate delay in considering the representations of the detenues, which has not been explained away at all by the respondents, we have to further examine the question as to whether this could be the ground to quash the detention orders. The law on the subject is no more res-integra. Since preventive detention is a detention without trial, the Courts hold the consistent view that as and when there is a representation by the detenu, there shall be no delay caused by the authority concerned and the said representation should be disposed of by considering all the relevant facts. It has also been held by the Ho’ble Supreme Court that if there is unexplained delay in considering the representation of the detenues that by itself would be the ground to quash the proceedings. In this regard, we may refer to the judgment of the Ho’ble Supreme Court in Rekha vs. State of Tamil Nadu & another [(2011) 4 SCC 260], wherein, the Ho’ble Supreme Court considered a case where there was a delay of hardly three days in considering the representation of the detenue. While considering the said delay, the Hom’ble Supreme Court has held that the delay is fatal and therefore, the detention order should be quashed. Applying the same yardstick to the facts of the present case, if we look into, we find that there is enormous delay of more than three months, which remains unexplained. Thus, as per the law laid down by the Hon’ble Supreme Court in Rekha’s case, referred to supra, the detention orders are liable to be quashed.
8. The other ground raised by the learned counsel for the petitioners is that there was no real possibility of the detenues coming out on bail. Admittedly, the detenues had not filed any petition seeking bail, before any Court. When that be so, it is not explained to the Court by the respondents as to how the detaining authority had come to the conclusion that there was real possibility of these detenues coming out on bail. This conclusion of the detaining authority, in our considered view, is based on no reasons and the same, as rightly contended by the learned counsel for the petitioners, reflects only the total non- application of mind on the part of the detaining authority. In this regard, we may refer to the judgment of the Hon’ble Supreme Court in Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr., (2011) 5 SCC 244, the,Hon'ble Supreme Court while dealing with the issue held as follows:
“……A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored…… In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co- accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.”
14......... Thus, as the detenu in the instant case has not moved the bail application and no other co- accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law." (Emphasis supplied)
9. In view of the foregoing discussions, we find that the detention orders under challenge are not sustainable and they are liable to be set aside and so we do not go into the other grounds in these habeas corpus petitions.
10. Before parting with this case, with pain, we would like to record our total displeasure and disappointment as to the way in which the authorities in the State, who are dealing with these preventive detention matters, have been lackadaisical and indifferent in discharging their official function. It is our experience, in this State, every year hundreds of persons are detained under Act 14/1982 either as a ‘Goonda’ or as a ‘Bootlegger’ or under any other class. Most of the orders are challenged by way of habeas corpus petitions either before the Principal Bench of this Court or the Madurai Bench of this Court. In our rough estimation, at least, 95% of those detention orders have been quashed. It is not the recent development. For decades this has been going on. Most of the orders are interfered with by this Court on certain common grounds. One such ground is the delay on the part of the Government in considering the representation made by the detenu. It is not as though the Government is not aware of the urgency of the matter and it is not as though the Secretary to the Government and its subordinates are also not aware of the law laid down by the Ho’ble Supreme Court and reiterated time and again by this Court, wherein the Courts have held that there shall be no delay in considering the representation made by the detenu, because, the detention under Act 14/1982 is made without any trial and that the failure to consider the representation of the detenu on time would be violative of Article 21 as well as Article 22 of the Constitution. It is not known as to why the officers of the Government concerned, whoever it might be, have not taken note of these judgments and have not taken any action to avoid any such delay in considering the representations. We are sure that such delay is not caused wantonly by the officers of the Government so as to pave way for the detenues to come out of the clutches of law of preventive detention.
11. If the intention of the authorities is to detain these Goondas, Bootleggers etc., with a view to prevent them from involving in similar activities prejudicial to the public order, (not Law and Order), it does not fall within our comprehension as to why these authorities are so insensitive in taking swift action so as to sustain these detention orders. Unavoidably, if some delay has occurred, the Government authorities are free to explain the same to the satisfaction of the Court. After all every human conduct is explainable. There are so many causes for such delay and some of the causes are also unavoidable. If these causes are placed before this Court by way of affidavit of the authority concerned, explaining the delay, the delay may not be a ground to quash the orders. The authorities fail to place any such explanation before this Court, in most of the matters. It is because of these reasons, we find no option but to quash the detention orders. We, who are the guardians of the Fundamental rights of the citizens of the country, sitting in the Constitutional Court, cannot be blindfold to see the fundamental rights of the detenues, guaranteed under Articles 21 and 22 of the Constitution of India, are violated. In the instant case, it is well known that this case was a very sensational one in the State and this has sent shock waves across the State and even beyond the State. There were lot of debates in the Media and the Press about this case. There was also a huge public comments and cry about this occurrence. Probably because of these pressures, the sponsoring authority as well as the detaining authority would have thought it necessary to detain them under the Goondas Act. It is needless to say that the detention order, under the Act, is not by way of punishment, but by way of preventing the detenu from indulging in similar activities, which would be prejudicial to the public order. If really, the detaining authority had the satisfaction that for a period of one year, the detenues should be detained under this Act, so as to prevent them from involving in similar activities prejudicial to the public order, the authorities, namely, the respondents ought to have been so sensitive and they should have acted very promptly to file counter and to place all the materials before this Court and the representation of the detenues should have been disposed of without any delay. It is not explained to the Court as to why this has not happened in this case. For these strong valid reasons, when we quash the detention orders, we also apprehend that the people at large, may have the feeling that this Court has simply quashed these orders ignoring the sensitive nature of the case. We regret. We are only hopeful that these observations made by us in this order would be taken seriously by the authorities concerned, atleast, in future, so as to avoid unnecessary detention orders being passed and also to take steps to sustain the necessary detention orders, if passed as absolutely necessary.
12. In the result, all these habeas corpus petitions are allowed. The detention orders in (1) Crl.M.P.No.1/Goonda/2016, (2) Crl.M.P.No.2/Goonda/2016 and (3) No.Crl.M.P.No.3/Goonda/2016, dated 12.05.2016, passed by the second respondent, are set aside. The detenues are directed to be released forthwith unless their presence are required in connection with any other case.
msk (S.N.J.) (A.S.M.J.) 07.03.2017 Order:Speaking/non-speaking Index:Yes/No To
1. The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009
2. The District Magistrate and District Collector, Tiruppur District, Tirupur.
3. The Deputy Superintendent of Police, Udumalpet, Tiruppur District.
S.NAGAMUTHU,J.
and ANITA SUMANTH,J.
msk H.C.P.Nos.1188, 1189 and 1262 of 2016 07.03.2017 http://www.judis.nic.in