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1998 DIGILAW 160 (MAD)

Mrs. Padmini v. The State of Tamil Nadu

1998-02-11

A.RAMAN, V.S.SIRPURKAR

body1998
Judgment :- V.S. Sirpurkar, J. This judgment shall govern these two habeas corpus petitions since they are out of the common adverse cases and the common ground case also. 2. The petitioner in both the petitions is Mrs.Padmini the mother who has challenged the detention of her sons, Arun Babu in H.C.P.No.889 of 1997 and Jayababu in H.C.P.No.893 of 1997. Detention orders in both the cases have been passed on 14.2.1997, by the District Magistrate and District Collector, M.G.R. district at Tiruvallur. The Detaining Authority has viewed both the detenus as "goonda" within the meaning of Sec.2 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Act 14 of 1982), (herein after called the "Act"). 3. The Detaining Authority has relied upon two adverse cases. The first being Crime No.887 of 1996, which is for an offence under Sec.302, I.P.C. which is alleged to have taken place on 28.9.1996 and the second adverse case is in Crime No.14 of 1997 and the incident is said to have taken place on 8.1.1997 at about 2.00 hours, when the accused in that case, the detenus herein said to have assaulted one Gopu, by way laying him near Avadi Housing Board, and snatched his Titan watch and cycle by threatening him. The incident in the ground case is said to have taken place on 10.1.1997 at about 19.15 hours, when one Anwar, son of Johny Basha, is said to have been assaulted by both Arun Babu and Jayababu and another person who was in his shop. After some wordy altercation, Aran Babu is said to have whipped out a knife which 1.5 ft. length and tried to stab the said Anwar. However, the said Anwar was saved as he had moved aside. Thereafter, Arun Babu is said to have taken away the cash of Rs.150 kept in the box and Jayababu is said to have uttered some abusive words and pushed the hand pulling cart which ultimately fell down and the fruits scattered. In the grounds supplied to the detenu Arun Babu, it is stated in ground No.5 as follows: "I am aware that Tmt.Padmini, mother of Tvl.Arunbabu and Jayababu has sent a petition at 4.2.1997 objecting to the preventive detention of her sons. I am also aware that the contents of the petition are not true. In the grounds supplied to the detenu Arun Babu, it is stated in ground No.5 as follows: "I am aware that Tmt.Padmini, mother of Tvl.Arunbabu and Jayababu has sent a petition at 4.2.1997 objecting to the preventive detention of her sons. I am also aware that the contents of the petition are not true. On the materials placed before me, I am satisfied that the said Tr.Arunbabu is a "Goonda..." To the same effect, is the reasoning given by the Detaining Authority in the order against Jayababu and therefore, we need not repeat the same. In short, these are the facts on which the Detaining Authority passed orders against the two detenus namely Arun Babu and Jayababu. 4. Mr.P.Rathinam, the learned counsel appearing on behalf of the petitioner invited our attention to some facts. According to the learned counsel, these two detenus, who are the brothers, were booked by the police on 28.12.1996, but were not produced before any Magistrate. Since the efforts on the part of their mother Padmini to get them released failed, H.C.P.No.33 of 1997 was filed by her on 7.1.1997. Notice was issued in that petition on 9.1.1997. However, the said petition came to be dismissed on 11.2.1997, on the short ground that these detenus were arrested on 11.1.1997 and put in the judicial custody and they were produced before the Judicial Magistrate, Poonamallee on 12.1.1997, who remanded them further, Learned counsel further points out that the police had booked the detenus in Crime Nos.14 and 16 on 9th and 10th January, 1997 and that these two cases were absolutely bogus and therefore, the mother of these two detenus, the petitioner herein, had sent a representation on 4.2.1997, to the Detaining Authority in which the facts of the earlier H.C.P. its dismissal and also the apprehension on her part that the authorities might falsely clamp an order of detention against the detenus on the basis of the false case, was expressed. The learned counsel, therefore, suggested that these facts have not at all been considered by the Detaining Authority and the Detaining Authority has mechanically proceeded on the basis of some incorrect facts. 5. Learned Additional Public Prosecutor however, pointed out that both the detenus were arrested on 11.1.1997 and were duly produced before the Judicial Magistrate. The learned counsel, therefore, suggested that these facts have not at all been considered by the Detaining Authority and the Detaining Authority has mechanically proceeded on the basis of some incorrect facts. 5. Learned Additional Public Prosecutor however, pointed out that both the detenus were arrested on 11.1.1997 and were duly produced before the Judicial Magistrate. He also challenged the statement made on behalf of the detenus that they were apprehended somewhere in the month of December itself. He points out that the detenus had not complained anything about such illegal detention before the Judicial Magistrate when they were produced before the Judicial Magistrate on 12.1.1997. He therefore, suggested that the Detaining Authority had very properly considered the whole aspects as also the earlier H.C.P. and had come to the conclusion that the detenus were liable to be detained. 6. This case is slightly unusual inasmuch as the petitioner, the mother of the detenus, had already represented that her sons were likely to be booked under the preventive detention, as goondas. We have carefully considered the observations made in the grounds supplied to the detenus. From what we have quoted above, it would be clear that the Detaining Authority was of the opinion that the mother of the detenus had sent a petition on 4.2.1997 objecting to the preventive detention of her son [Italics supplied]. In fact, on 4.2.1997, there was no preventive detention at all. At the most, the objections could be taken to the apprehended detention, but certainly there could be no detention so as to be objected by the mother of the detenus. Now therefore, we are not certain as to whether the Detaining Authority was aware of the real nature of the representation sent by the mother to the retaining authority. Further, the Detaining Authority goes on to say that he was aware that the contents of the petition were “not true”. Fortunately, the copy of the said representation has been supplied to the detenus and it is on record. We went through the said copy of the representation. Now, though the Detaining Authority was of the opinion that the entire representation was a falsehood or in the words of the Detaining Authority “not true”, the contents in paragraphs 2, 3, 4 and 5 would be not entirely “not true”. We went through the said copy of the representation. Now, though the Detaining Authority was of the opinion that the entire representation was a falsehood or in the words of the Detaining Authority “not true”, the contents in paragraphs 2, 3, 4 and 5 would be not entirely “not true”. In fact, in these paragraphs and more particularly in paragraph 3, the petitioner herein had specifically pointed out that since her efforts to get her sons released failed, she had filed H.C.P.No.33 of 1997 on 7.1.1997, that notice was ordered in that petition by a Division Bench consisting of M.S.Janarthanam and K.Natarajan, JJ. and after the receipt of notice, Avadi Police, booked her sons in two cases falsely and then produced them before Judicial Magistrate, Poonamallee. There is undoubtedly an allegation that two cases were foisted against her sons falsely. But the fact remains that undoubtedly, H.C.P. was filed. In that case, notice was issued and not only that, the detenus were produced before Judicial Magistrate, Poonamallee, on 12.1.1997 and they were further remanded. In paragraphs 4 and 5, the petitioner has spoken about the fact that the petitioner’s sons were arrested earlier and the copy of the F.I.R. was sent to the Judicial Magistrate in both the cases, only on 12.1.1997. Now even this fact could not be controverted as admittedly, the copies of the First Information Report in both the Crime Nos.14 and 16 have been sent to the Judicial Magistrate, Poonamallee only on 2.1.1997. Not only this, the details regarding the occurrence of the crimes have also been correctly given in paragraph 4, which also could not be dubbed as not true. Similarly, in paragraph 5, first adverse case is mentioned and it was stated that the accused were nabbed on the basis of the confessional statement of the co-accused which facts also could not be dubbed as not true. In spite of these, the Detaining Authority straightaway proceeded to call the whole petition dated 4.2.1997 as untruthful petition, which would only mean that the Detaining Authority has not applied his mind at all, to the concerned papers. It is admitted position that the petition dated 4.2.1997 has been considered , which is clear from the contents of paragraph 5 of the grounds of detention. It is admitted position that the petition dated 4.2.1997 has been considered , which is clear from the contents of paragraph 5 of the grounds of detention. If the Detaining Authority has considered the said petition in the manner in which we have shown above, then it cannot be said that there was a proper application of mind to the documents. The inferences drawn appear to be impossible. We have already shown that even the nature of that petition as also the facts stated therein have not been taken into consideration actively by the Detaining Authority. It is not for us to go into the merits of the matter and also to consider whether the detention of the detenus was necessary. However, when we see that the Detaining Authority has relied upon such inference which could never have been drawn by a reasonable person and has acted upon the same, then it will have to be held that this is nothing but a mechanical application of mind or in other words, no application of mind at all. 7. For these reasons alone, the petitions have to succeed in respect of both Arun Babu and Jayababu, the original detenus. We accordingly allow these petitions and set aside both the orders by which the said detenus have been detained. They be set at liberty forthwith, unless required in any other cases. H.Crl.M.P.Nos.5 and 6 of 1998 also dismissed.