G. KARUPPIAH v. STATE OF TAMIL NADU — 1999 DIGILAW 1251 (MAD)

Judgment : S. JAGADEESAN, J. ( 1 ) THE detenus in both the cases are the co-accused in the ground case. Both the detenus have been detained as TGoonda as contemplated under Tamil Nadu Act 14 of 1982, pursuant to the order of detention dated 20-4-1999. passed by the 2nd respondent herein. Both the detenus had involved in two adverse cases. So far as the ground case is concerned on 29-3-1999, at about 7-45 p. m. the detenus went to the petty shop of one Soundarapandian at Taluk Office Road Tiruchuli and took the soda and cool drink bottles from the shop and threw them away in the road. The bottles burst with a bang and splinters spread in all the directions. Passengers in the bus stop and the general public with panic and fear ran in all directions. Traffic on the road came to a standstill. Shopkeepers closed their shutters. The routine life was disturbed. The Head Constable Mr. Paul Kannan with his police party came and attempted to catch hold of the detenus. The detenus threatened the police with aruvals. The Police Constable Mr. Muthusamy, who, attempted to catch Karuppusamy, the detenu in H. C. P. No. 1199/99, the detenu attempted to cut the said Constable Mr. Muthiah, who sustained injury on his left fore hand. Thereafter, the detenu Karuppusamy was apprehended and the aruval was recovered from him and was taken to police station along with the other detenu Solayappan, who also caused a cut injury on another constable Mr. Ramalingam. A case was registered for offences punishable under Sections 427, 332 and 307 on P. C. and Section 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. The investigation was taken up by the Inspector of Police, Trichy, and the other formalities have been completed. Both the accused were produced before the Judicial Magistrate. Aruppukottai on 29-3-1999 and remanded to custody. Considering the conduct of the detenus the Sponsoring Authority has sent the proposal to the Detaining Authority for their preventive detention under the Tamil Nadu Act 14/82. The Detaining Authority after satisfying himself with regard to the need for such detention has passed the impugned order of detention. ( 2 ) LEARNED Counsel for the petitioners contended that the impugned order of detention was passed on 20-4-1999 and the same was served on the detenus on 21-4-1999. The Detaining Authority after satisfying himself with regard to the need for such detention has passed the impugned order of detention. ( 2 ) LEARNED Counsel for the petitioners contended that the impugned order of detention was passed on 20-4-1999 and the same was served on the detenus on 21-4-1999. The family members of the detenus have not been intimated about the order of detention and the fact of the detenus being taken into custody and about the place of detention pursuant to the order of detention. ( 3 ) THE 2nd respondent has filed counter affidavit, in paragraph No. 6 of the counter affidavit, it has been stated as follows: MJ humbly submit that the allegation levelled against this respondent, that the relatives of the detenu were not informed in writing about the passing of the order of detention is false. I submit that the detention order was passed on 20-4-1999 and the same was served on the detenu on 21-4-1999 by the Jailor, Central Prison. Madurai. The mother of the detenu with whom the detenu was residing at Meenakshipuram village. On 20-4-1999, when the Sub-Inspector of Police, Thiruchuli approached her to serve the detention order, after the Sub-Inspector read over the detention order to her, she refused to receive the same. Hence, in the presence of Village Administrative Officer and independent witness Thiru, Sivapackiam, he affixed the detention order on the front of the house. Thus, the service of the detention order is valid in law and there is no infirmity. Even though in the affidavit filed by the petitioners on behalf of the detenus, it is stated that the family members have not been informed about the order of detention, now, after perusal of the counter affidavit filed, by the 2nd respondent, learned Counsel for the petitioners has advanced an argument that as per the averments made in the counter affidavit, the order of detention had been sought to be served on the family members i. e. the mother of The detenu in HCP. No. 1199/99 and the wife of the detenu in HCP. No. 1200/99. The family members of the detenus need not be served with a copy of the order of detention and they have to be furnished with the intimation with regard to passing of the order of detention and the place of detention of the detenus. No. 1199/99 and the wife of the detenu in HCP. No. 1200/99. The family members of the detenus need not be served with a copy of the order of detention and they have to be furnished with the intimation with regard to passing of the order of detention and the place of detention of the detenus. Since there is no averment made in the counter affidavit that the Detaining Authority has made any attempt to serve the intimation about the order of detention on the family members, it has to be taken that the family members were not served with any intimation about the order of detention, and on this ground, the Habeas Corpus Petitions have to be allowed. ( 4 ) IT is further contended by the learned Counsel for the petitioners that even assuming that what was sought to be served on the family members of the detenus is the intimation, the same could have been served only after service of the detention order on the detenus and there cannot be the intimation being sent to the family members earlier to the service of the order of detention on the detenus. In this case, the order of detention was served on the detenus on 21-4-1999, and as such the intimation of the order of detention sought to be served on the family members on 20-4-1999 is not in accordance with the procedure, and hence the impugned order of detention is liable to be set aside. ( 5 ) LEARNED Counsel for the petitioners relied upon the judgment reported in A. K. Roy v. Union of India and contended that it is the mandate of Article-21 of the Constitution of India that the procedure attendant upon the detention in the matter of fairness, justness and reasonableness, and hence it is imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his house-hold should be informed. On the basis of this, it is contended that only after service of the order of detention on the detenu, it can be construed that he was taken into custody pursuant to the order of detention and not earlier to that. On the basis of this, it is contended that only after service of the order of detention on the detenu, it can be construed that he was taken into custody pursuant to the order of detention and not earlier to that. Hence, it is incumbent on the part of the authorities to serve the intimation on the family members with regard to the detention of the detenus after the service of the detention order on the detenus, and hence, in this case, it has to be held that the family members have not been intimated about the detention of the detenus as it is admitted that there is no intimation to the family members subsequent to the service of the order of detention on the detenus. ( 6 ) ON the contrary, the learned. Additional Public Prosecutor contended that the detenus had already been detained as remand prisoners in the Central Prison, Madurai. The impugned order of detention was passed on 20-4-1999 and the same was despatched to the Jail Authorities for service on the detenus. Simultaneously, the requisite intimation had been despatched to the family members to effect the service on them. Hence, there is no discrepancy on the part of the authorities in forwarding the intimation, simultaneously to the family members. The records show that the family members of the detenus to whom the intimation had been addressed, had refused to receive such intimation and necessarily, the authorities had to follow the procedure of affixture. ( 7 ) LEARNED Additional Public Prosecutor also relied upon the Judgment reported in Union of India v. Vasanbharathi the and contended that the purpose of the intimation being sent to the family members is to inform them about the order of detention passed against the detenu and the place of detention. In this case on hand, the detenus had already been detained as a remand prisoners in the Central Prison, Madurai, and pursuant to the order of detention, their detention as Goondat is to be continued in the same prison. In this case on hand, the detenus had already been detained as a remand prisoners in the Central Prison, Madurai, and pursuant to the order of detention, their detention as Goondat is to be continued in the same prison. In the intimation sought to be served on the family members, it has been clearly stated that the order of detention has been passed under Tamil Nadu Act 14/ 82 against the detenus, and they will be detained under the preventive detention, as contemplated under the said Act and hence, there is absolutely no infirmity in the intimation sent to the family members of the detenus. ( 8 ) WE have carefully considered the contentions of both the Counsel. In the decision reported in AIR 1982 SC 710 (cited supra), at page No. 7 40, in para No. 75, the Supreme Court, while dealing with the intimation to the family members, has held as follows: In order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, we consider it imperative that immediately after person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenus has been taken in custody. Intimation must also be given as to the place of detention including the place where the detenu is transferred from time to time. This Court has stated time and again that the person who is taken in custody does not forfeit by reason of his arrest all and everyone of his fundamental rights. From the above reading of the observations of the Apex Court, it is clear that the mandate of Article 21 of the Constitution is imperative, that immediately after a person is taken in custody in pursuance of an order of detention the members of his family should be informed in writing. In the case on hand, in the counter affidavit it has been stated that the authorities had made an attempt to serve the order of detention on the family members of the detenus and the addressees viz, the mother and wife respectively in the H. C. Ps. have refused to receive the same. In the case on hand, in the counter affidavit it has been stated that the authorities had made an attempt to serve the order of detention on the family members of the detenus and the addressees viz, the mother and wife respectively in the H. C. Ps. have refused to receive the same. ( 9 ) LEARNED Counsel for the petitioners vehemently contended that there is absolutely no need for the authorities to serve the order of detention and the statement made in the counter affidavit. that the order of detention was sought to be served on the detenus would show that no attempt has been made to serve the intimation. ( 10 ) WE are unable to agree with the learned Counsel for the petitioners. We perused the me. The me contains only the intimation about the detention of the detenus that was sought to be served on the family members. In the counter affidavit the appropriate authority has mistakenly stated that the order of detention was sought to be served, when factually it is not so. ( 11 ) THE me contains the particulars with regard to the fact about the refusal on the part of the mother and wife of the detenus to receive the same and hence the authorities had resorted to affixture. So far as this procedure is concerned no objection has been taken by the Counsel for the petitioners. However, the other contention raised by the learned Counsel for the petitioner is that only pursuant to the order of detention, the detenus are deemed to have been detained as Goondas by way of preventive detention and hence; intimation to the family members ought to have been served only after the service of the order of detention on the detenus. Till such service of the detention order on the detenus, they cannot be termed as detenus under the preventive detention. Hence, the attempt on the part of the authorities to serve the same on the family members prior to the service on the detenus cannot be construed as a valid intimation and hence, the order of detention is vitiated and liable to be set aside. ( 12 ) HERE again, we are unable to agree with the contention of the learned Counsel for the petitioner. Admittedly, the detenus are remand prisoners on the date of passing of the order of detention on 20-4-1999. ( 12 ) HERE again, we are unable to agree with the contention of the learned Counsel for the petitioner. Admittedly, the detenus are remand prisoners on the date of passing of the order of detention on 20-4-1999. The impugned order of detention has been despatched to the Jail Authorities for service of the same on the detenus. When the detenus are already in custody, there is no question of their being taken in custody, pursuant to the order of detention arises. In pursuance of the order of detention, the remand prisoners will be retained in custody as preventive detenus and barring that neither the detention nor the place of detention changes or alters. In such case, it is only a formal service of the order of detention is required on the detenus immediately of the passing of such order. Hence, the Detaining Authority under the impression that the order of detention will certainly be served on the detenus by the Jail Authority, has forwarded the intimation to the family members about the passing of the order of detention and the continuation of the detenus detention in the same prison. Hence, there is absolutely no necessity for the Detaining Authority to await for the service of the order of detention on the detenus, to send the intimation to the family members. Hence, the authorities have complied with the formalities required for service of the intimation on the family members. ( 13 ) MOREOVER, the Supreme Court in the decision reported in 198oscc (Cri) 317 (supra) has referred to the passage from A. K. Roys case extracted above and held as follows: The object and purpose of the above observation in our view seem to be that the family members of the detenu should not be kept in darkness by withholding the information about the passing of the order of detention and the place of detention thereby preventing them from having any access and from rendering any help or assistance to the detenu and similarly the detenu should not be deprived of the privilege of meeting their relations and getting any help or assistance. From this passage, it is clear that the Supreme Court has discussed about the need or object or purpose of the intimation being sent - to the family members. From this passage, it is clear that the Supreme Court has discussed about the need or object or purpose of the intimation being sent - to the family members. When it is to inform the family members about the order of detention, when the detenus are already inside the jail, the mere intimation to the family members about the passing of the order of detention would be a sufficient compliance as there is no question of apprehending the detenus afresh arises. ( 14 ) CONSIDERING the above facts, we are of the opinion that the contentions raised by the learned Counsel for the petitioners cannot be countenanced. ( 15 ) HENCE, these Habeas Corpus Petition are dismissed as devoid of merits. Petition dismissed.