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2003 DIGILAW 763 (MAD)

M. A. Badrudeen v. State of Tamil Nadu & Others

2003-04-30

P.SHANMUGAM, S.K.KRISHNAN

body2003
Judgment :- P. SHANMUGAM, J. One Thiru. B. Thameen Ansari, son of the petitioner herein, has been detained by virtue of the detention order dated 3.12.2002 passed by the second respondent under Section 3(1) of the Tamil Nadu Prevention first respondent partnership firm Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders and Slum Grabbers Act, 1982 (Act14 of 1982), which is impugned in this Habeas Corpus Petition. 2. The facts of the case are as follows :- The detenu is aged 36 years. He is running an automobile repair workshop in the name of 'Ajmer Haaja Diesel Mechanic' and an automobile spare parts shop in the name and style of 'Royal Auto Parts' at West Tambaram, Chennai employing more than ten workers. The detenu has been in this business for over 25 years. He is an income tax assessee and happens to be the Founder President of the Light and Heavy Vechiles Repairers Welfare Association. According to the petitioner, the detenu was woken up during the midnight on 16.11.2002/17.11.2002 and was taken by the third respondent/Inspector of Police herein on the plea that he needed to be enquired. The detenu, mistaking that he was being taken for attending the repair work of their vehicle, went with them in a casual dress of lungi and banian and at the instance of the police, he wore his shirt and carried his mobile cellular phone connected with Airtel with Number 98400-53633. After the detenu left with the police party, the petitioner, with the assistance of one M. Ravi, who is residing in the same locality as a car dealer, appraised him of the incident and tried to follow the police party in their Maruthi Omni Van bearing Registration Number TMB-8851. When they reached Chengalpet Prohibition Enforcement Wing at about 3 am, they found the police station locked from outside and the police jeep in which the Inspector came to his house was found parked nearby, but nobody answered their call and therefore, they returned home believing that his son would be inside the police station. On the next day morning, i.e., 17.11.2002, the petitioner went to the same police station in the Maruthi Van along with his son's friends M. Ravi, S. Kader Jalani and his daughter-in-law and they found the detenu beaten up all over his body with visible swelling marks. On the next day morning, i.e., 17.11.2002, the petitioner went to the same police station in the Maruthi Van along with his son's friends M. Ravi, S. Kader Jalani and his daughter-in-law and they found the detenu beaten up all over his body with visible swelling marks. They could not talk to him as they could only see him from a distance. 3. The case of the petitioner is that the Inspector of Police called his nephew inside and informed him that they must pay him a sum of Rs.1 lakh, failing which the detenu would be implicate in a serious criminal case or he would be detained under the Goonda's Act. They were given 24 hours to express their willingness and bring a Toyoto Qualis Van on the next day. On 18.11.2002, they again went the police station and waited for more than two hours for the arrival of the Inspector. At about 2 pm, they found their Maruthi Omni Van bearing Registration Number TMB-8851 being driven by one Vivek @ Vivekanandan, a known auto rickshaw driver and their Yamaha Motor Cycle bearing Registration No.TSI-153 being driven by a constable with a pillion and brought into the police station. The Inspector is said to have informed the petitioner's nephew reiterating his earlier demand of Rs.1 lakh and came along with them to get the Battery Charger of the cellphone of the detenu, which was taken by the Inspector from the detenu on 17.11.2002. The petitioner had decided not to meet the illegal demand since the detenu was innocent and a law abiding citizen and also, if they pay the ransom as demanded, it would only be a temporary relief and that there was every likelihood of being harassed in future for similar illegal gratifications. As a result, the detenu was mercilessly beaten up and the time to pay the money was further extended till 4 pm on 19.11.2002. Ultimately, the petitioner understood that at 6 pm on 19.11.2002, the third respondent prepared the alleged seizure mahazar as though the detenu had transported rectified spirit and a document of arrest was also prepared showing that the detenu was arrested only on 19.11.2002 at 2 pm. Thereafter, the third respondent produced the detenu before the Magistrate at 7.25 pm on 19.11.2002, who remanded the detenu to judicial custody. Thereafter, the third respondent produced the detenu before the Magistrate at 7.25 pm on 19.11.2002, who remanded the detenu to judicial custody. The petitioner understood that the detenu was kept at the gate of the Magistrate's residence and the order of remand was obtained inside the Magistrate's residence and though the detenu was undergoing unbearable pain and could not even stand, there was no scope for his complaining to the Magistrate as to the illegal detention and torture meted out to the detenu. 4. The wife of the detenu Tmt. T. Suleikha sent a written representation dated 20.11.2002 to the District Collector by speed post specifically stating that the detenu was taken to the police station at 1 am on 16.11.2002/17.11.2002 in the guise of conducting an enquiry on him and that when they went to the police station, the third respondent demanded a sum of Rs.1 lakh and threatened that if the demand was not met, apart from foisting cases against him, the detenu would be put under preventive detention and kept in prison for one year without trial. The wife of the detenu, therefore, prayed for appropriate action as her husband had not committed any wrong and as there was nobody to help them. 5. The petitioner moved a bail application in Crl.M.P. No.15183 of 2002 on 26.11.2002 before the Principal Sessions Judge, Chengalpet. The said application was dismissed on 29.11.2002 in the light of the objection of the learned Public Prosecutor that some prohibition cases were pending against the detenu and that the respondent police were moving papers before the Collector to detain the detenu under the Goonda's Act and hence, the court thought that it would not be proper to release the detenu on bail at that stage. The second bail application filed on 2.12.2002 was also dismissed on 5.12.2002. 6. Without reference to the pre-detention representation and the dismissal of the bail application, the impugned order of detention dated 3.12.2002 came to be passed by the second respondent. As per the grounds of detention, there is no adverse case other than the ground case as set out in the order. 6. Without reference to the pre-detention representation and the dismissal of the bail application, the impugned order of detention dated 3.12.2002 came to be passed by the second respondent. As per the grounds of detention, there is no adverse case other than the ground case as set out in the order. According to the grounds, on 9.11.2002, while the third respondent/Inspector, along with the police party, was conducting a prohibition raid at the Junction near Vandalur Zoo, they seized one Yamaha motorcycle from an unknown person at 1330 hours, parked it in front of a tea stall and were taking tea. At that time, a Maruthi Van bearing Registration No.TMB-8851 came and stopped near the Yamaha motorcycle. The Inspector of Police, on a suspicion, apprehended the person who came out of the van and he confessed that he was Thameen Ansari of Tambaram. On examining the van, he found three plastic cans with 35 litres capacity containing rectified spirit. The Inspector smelt that an obnoxious smell was emanating from the cans resulting in oozing of water from eyes and nose. Hence, the Inspector arrested the detenu at 1400 hours for having transported poisonous rectified spirit. The confession statement was recorded from the detenu between 1400 hours and 1430 hours. The Maruthi van, the cellphone and the contraband items were seized between 1430 hours and 1500 hours under the cover of a mahazar in the presence of two police witnesses. Samples of the rectified spirit were taken in two separate bottles of 500 ml. each and the remaining rectified spirit was destroyed at the spot at 1315 hours and a mahazar of destruction was prepared. The detenu along with the seized materials were taken to the police station at 1700 hours and a case was registered against the detenu in Crime No.1145 of 2001 under Sections 4(1)(aaa) and 4(1-A) of the Tamil Nadu Prohibition Act, 1937 read with Rules 6 and 11 of the T.N.R.S. Rules, 1959. The detenu was produced before the Judicial Magistrate, Chengalpet on the same day and was remanded till 3.12.2002. The chemical analysis report from the Forensic Science Department was received, certifying that the seized rectified spirit contained poisonous substances and also to the effect that if a person consuming diluted rectified spirit mixed with atropine, it would be injurious to his health. The investigation of the case was not complete. The chemical analysis report from the Forensic Science Department was received, certifying that the seized rectified spirit contained poisonous substances and also to the effect that if a person consuming diluted rectified spirit mixed with atropine, it would be injurious to his health. The investigation of the case was not complete. However, these materials were placed before the detaining authority, who was also satisfied that the detenu was a 'bootlegger' possessing rectified spirit mixed with poisonous substances and had thereby acted in a manner prejudicial to the maintenance of public health and public order and hence passed the impugned order of detention with a view to prevent the detenu from indulging in prejudicial activities in future. The said order is now under challenge. 7. The Habeas Corpus Petition was admitted on 19.3.2003 and the matter came up for final hearing on 23.4.2003. After hearing the counsel for the petitioner and the learned Additional Public Prosecutor, we found the following glaring defects and a prima facie case against the order of detention :- (1) The pre-detention representation sent on behalf of the detenu dated 20.11.2002, wherein the demand of Rs.1 lakh by the Inspector of Police was specifically stated, has not been disposed of or considered. (2) There is no other case against the detenu except the ground case. (3) The petitioner's bail application was rejected on 29.11.2002 on the submission of the Public Prosecutor that prohibition cases were pending against the detenu and that the papers were being moved before the Collector to detain him as a bootlegger. (4) The detenu was in illegal custody from 16.11.2002 and the cellphone belonging to him was used by the Inspector of Police, as evidenced by the readings in the bills provided by Airtel. In the above circumstances, we were satisfied that it was an extraordinary case of misuse of the provisions of Preventive Detention Act and a mechanical order of detention had been passed against the detenu, depriving the valuable fundamental right guaranteed to the detenu. Hence, we directed the release of the detenu with a direction to the respondents to file a counter affidavit and posted the case for arguments on 28.4.2003. Hence, we directed the release of the detenu with a direction to the respondents to file a counter affidavit and posted the case for arguments on 28.4.2003. On the next day, i.e. on 24.4.2003, the matter was made a mention of by the counsel for the petitioner stating that the release order issued by this Court could not be effected, as a result of which we passed an order of interim stay of the order of detention on 24.4.2003 and directed the detenu to be released forthwith with an order of bail in reference to the ground case. However, even this order granting bail could not be given effect to, since according to the petitioner, bail bonds were approved and the order has been sent by post to the jail authorities directly, without giving them the copies for the immediate release of the detenu, as a result of which the order could reach the jail authorities only on 28.4.2003. However, when the matter came up for hearing today, it is reported before us that the detenu was being released since the order of detention has been revoked by the Government. 8. Since serious personal allegations of malafides have been made against the third respondent, he was added as a party in his individual capacity. Mr. B. Kumar, senior counsel appearing on his behalf requested time for filing counter and hence, the matter was adjourned to 29.4.2003. 9. According to the learned counsel for the petitioner, there is total non-application of mind on the part of the second respondent/detaining authority and there are no materials for him to have come to the subjective satisfaction in order to invoke the provisions of Act 14 of 1982. According to him, the order was passed mechanically on the bald allegations contained in the First Information Report and the detention was based on a single alleged occurrence, for which no credence could be given at all. He submits that the order is passed in colourable exercise of power with an ulterior purpose of extracting money at the instance of the third respondent. He submits that the order is passed in colourable exercise of power with an ulterior purpose of extracting money at the instance of the third respondent. According to him, the detaining authority had failed to take note of the pre-detention representation which contained a serious allegation of demand of bribe by the sponsoring authority and he has also failed to take note of the order in the bail application and a pre-determined statement made by the sponsoring authority before the Sessions Court. He further submits that the various calls made by the third respondent from the cellphone seized from the detenu would clearly indicate that the detenu was illegally detained on 16.11.2002/17.11.2002 and that the cellphone of the detenu was being used by the third respondent for making personal calls to his relatives and superior officers. The detenu had absolutely no connection whatsoever with the telephone numbers which the third respondent had contacted and this would conclusively establish that the third respondent was acting in sheer abuse of the power and the responsibility of an officer. Learned counsel also submits that the detenu is a God fearing, law abiding citizen and that he is member of Social Clubs, having clean habits, being a tea-totaller and is devoted to his automobile workshop and the repairs of automobiles. According to him, the case has been foisted against the detenu for the personal gain of the third respondent and the detaining authority had passed a mechanical order and therefore, according to him, the detention order is liable to be quashed and the petitioner is entitled for monetary compensation for having been deprived of his personal liberty. 10. Learned Additional Public Prosecutor submitted that the case putforth before the Advisory Board is entirely different to the effect that the detenu had admitted that he was taken into custody only on 19.11.2002. According to him, habituality is not contemplated under Act 14 of 1982 and the provisions of the Indian Evidence Act would not be applicable to the Preventive Detention Act. He submits that the subjective satisfaction or the truth or the correctness of the facts made out before the detaining authority cannot be gone into by this Court. He therefore submits that the detention order does not call for any interference and in any event, according to him, the detention has already been revoked. 11. Mr. He submits that the subjective satisfaction or the truth or the correctness of the facts made out before the detaining authority cannot be gone into by this Court. He therefore submits that the detention order does not call for any interference and in any event, according to him, the detention has already been revoked. 11. Mr. B. Kumar, learned senior counsel appearing on behalf of the third respondent fairly conceded that the detention order cannot be sustained in the light of Section 17 of Act 14 of 1982 which pre-supposes that there must be more than one case pending against the detenu for passing an order of detention. However, he submits that as per the confession statement of the detenu, two crimes are made out against the detenu, as registered in Crime Nos.1444 of 2002 and 1445 of 2002. Thus, according to him, there is involvement of the detenu in both these cases, but they were not taken into account in the impugned order. He submits the admission of the detenu before the Advisory Board was to the effect that he was arrested only on 19.11.2002 and therefore, the present stand of the petitioner is an after-thought and cannot be accepted to be true. He further submits that the third respondent had acted as per the information gathered by him and on the instructions of his superior officers and that all his activities had been supervised by his superiors. Learned senior counsel has denied the demand of Rs.1 lakh by the third respondent from the detenu and his family members. He lastly submits that the calls from the cellphone belonging to the detenu might have been made by Kader Jalani, who is a close relative to the family of the detenu and he might have contacted higher officials or even the relatives of the third respondent. 12. We have heard the counsel for the petitioner, learned Additional Public Prosecutor and the learned senior counsel for the third respondent in extenso, gone through the records and considered the matter carefully. 13. Though the order of detention has been revoked by the Government in G.O. Rt. No.1623 dated 25.4.2003, inasmuch as the order came to be passed when the detention order had already been stayed by this court by order dated 24.4.2003 and the matter posted for final hearing on 28.4.2003, the H.C.P. cannot be made infructuous by this process. 13. Though the order of detention has been revoked by the Government in G.O. Rt. No.1623 dated 25.4.2003, inasmuch as the order came to be passed when the detention order had already been stayed by this court by order dated 24.4.2003 and the matter posted for final hearing on 28.4.2003, the H.C.P. cannot be made infructuous by this process. Hence, understandably, no arguments are advanced by the respondents contending that the H.C.P. had become infructuous. In Bhim Singh vs. State of Jammu & Kashmir (A.I.R. 1986 S.C. 494), following the earlier decision in Rahul Shah vs. State of Bihar (A.I.R. 1983 S.C. 1086), the Supreme Court held that when a person comes to a court with a complaint that he had been arrested and imprisoned with a mischievous and malicious intention and that his constitutional and legal rights have been invaded, the mischief and malice intended cannot be washed away or wished away by his being set free, and in appropriate cases, the court has got jurisdiction to compensate the victim by awarding considerable monetary compensation. In the latter case referred to above, their lordships held that Article 21 of the Constitution, which guarantees the right to life and liberty, will be denuded of its significant content if the power is limited to the release from illegal detention. 14. Even a cursory reading of the grounds of detention would make it clear that there are no materials or basic facts for arriving at the subjective satisfaction in order to hold that the detenu is a bootlegger. The grounds of detention proceed on the basis of noticing the detenu occupying a Maruthi van and on suspicion, he was apprehended near the Vandalur Zoo on 19.11.2002. According to the order, the detenu has confessed that he is Thameen Ansari and the Inspector of Police found three plastic cans containing rectified spirit. The following are the glaring infirmities and the lack of basic facts for arriving at the subjective satisfaction. 15. The F.I.R. found at page 3 of the booklet says that an unknown person, after parking a Yamaha vehicle near a tea shop, was taking tea at 1330 hours. Thereafter, a Maruthi van, driven by the detenu, came to that place. The vehicle was stopped and inspected and was found to contain three plastic cans of 35 litres capacity containing water mixed rectified spirit emanating poisonous smell. Thereafter, a Maruthi van, driven by the detenu, came to that place. The vehicle was stopped and inspected and was found to contain three plastic cans of 35 litres capacity containing water mixed rectified spirit emanating poisonous smell. The detenu was arrested and the materials were seized along with a cellphone. The seizure mahazar is attested by two Police Constables, though the place of seizure is a busy National Highway Road at the Junction of Vandalur Zoo. Similarly, the destruction of the remaining rectified spirit was also witnessed by the very same Police Constables with no independent witnesses. Thirdly, the confession statement, which gives a different story, is also attested by the same Police Constables. According to that statement, one Ravi, the driver of the detenu, was sent in his Yamaha vehicle with 35 litres plastic can and thereafter, he went in the Maruthi van with three plastic cans with water mixed rectified spirit. The said confession statement is signed by the detenu at the end of the third page at the (x) marked place on the left hand side and on the right hand side, the two witnesses, namely the two constables, have signed. This statement taken by the police officer is clearly contrary to Section 162 of the Code of Criminal Procedure which specifically prohibits the statement to a police officer not to be signed. Apart from this, the placing of the signature by the detenu at the third page on the left hand side clearly creates a serious doubt that whether the signature might have been obtained on the dotted line. Thus, three officers are involved, viz. (1) J. Sivakumar, Inspector of Police, (2) V. Alavandar, Head Constable No.604 and (3) Murthy, Selection Grade Constable No.520. The seizure mahazar, the destruction mahazar and the confesssion statement of the detenu are all attested by these three officers. The two Constables have also given statements separately. There are no independent witnesses for the seizure, destruction and taking samples of the rectified spirit. A reading of the F.I.R., the confession statement and the counter affidavit of the third respondent makes it clear that the case of the respondents is not true. The two Constables have also given statements separately. There are no independent witnesses for the seizure, destruction and taking samples of the rectified spirit. A reading of the F.I.R., the confession statement and the counter affidavit of the third respondent makes it clear that the case of the respondents is not true. The third respondent, in paragraph 8 of his counter, says that at 1.30 pm, a black Yamaha motor bike bearing Registration No.TSI-153, driven by an unknown person came (no reference that he was carrying 35 litres of rectified spirit in the motor bike) and did not stop while signalling, but after driving for some distance, the driver abandoned the vehicle and ran away. Whereas, in the grounds of detention, it is stated that after seizing the motor bike, they were taking tea. No reference is made to the alleged finding of 35 litres of rectified spirit from the motor bike. The third respondent, in paragraph 5 of his counter, admits as follows: "I sent one Constable Mr. Alavandar to the detenu Mr. Tameem Ansari's house on 16.11.2002 brought him to PEW for enquiry purpose. But, the Constable returned with information that the detenu was not available." 16. The wife of the detenu had sent a representation dated 20.11.2002 to the District Collector, wherein she had stated that the detenu was taken under the guise of an enquiry on 16.11.2002 at 1 am and that on the next day, when she went to the police station, she was informed that in order to release her husband, they should pay Rs.1 lakh and that if the amount is not paid, apart from foisting a false case against him, the detenu would be arrested under Preventive Detention Act and kept in prison for one year without trial. The petitioner has made this averment in paragraph 14 of his affidavit. In the counter affidavit filed by the second respondent, in paragraph 8, it is admitted as follows : "I submit that the petitioner has alleged ..... that they have represented about the demand of Rs.1 lakh by the third respondent to the second respondent vide representation dated 20.11.2002. ..... I submit that the third respondent, in his parawar remarks, denies having demanded Rs.1 lakh, as alleged. ..... that they have represented about the demand of Rs.1 lakh by the third respondent to the second respondent vide representation dated 20.11.2002. ..... I submit that the third respondent, in his parawar remarks, denies having demanded Rs.1 lakh, as alleged. ..... I submit that this is not acceptable that without verification of the facts of the representation, they have signed it." A reading of the counter affidavit clearly shows that the second respondent has not denied the receipt of the representation. On the other hand, he only says that the third respondent had denied the demand. Learned counsel for the petitioner had also produced the original copy of the acknowledgment for the speed post sent by them and received by one Gopal at the Collectorate on 22.11.2002. 17. It is clear that this pre-detention representation contains two vital facts : (a) The illegal detention of the detenu from 1 am on 17.11.2002 in the guise of enquiry. (b) A demand of Rs.1 lakh made on the next day by the third respondent for the release of the detenu, failing which to face the imposition of false case and the detention order. The failure on the part of the second respondent in not taking taking note of these serious allegations while passing the order of detention clearly shows that there is non-application of mind and failure to consider a relevant and important fact available before the detaining authority. 18. The detenu had filed a bail application before the Principal Sessions Judge on 26.1.2002 and the following order was passed by the learned Principal Sessions Judge on 29.11.2002 : "On behalf of the petitioner, counsel submitted that no other case is pending against this petitioner. The Public Prosecutor submitted that some prohibition cases are pending against this petitioner, the complainant is moving the papers before the Collector to detain the petitioner under Goonda's Act. Hence, considering these facts that steps are taken by the complainant to detain the petitioner under the Goonda's Act, it will not be proper to release the petitioner on bail at this stage. - Signed P.D.J. (Incharge) dt. 29.11.2002." The above order makes it clear that a representation was made on behalf of the respondent that some prohibition cases were pending against the detenu, even though the counsel for the detenu had represented that no cases were pending against the detenu. - Signed P.D.J. (Incharge) dt. 29.11.2002." The above order makes it clear that a representation was made on behalf of the respondent that some prohibition cases were pending against the detenu, even though the counsel for the detenu had represented that no cases were pending against the detenu. It further reveals that the representation was made on behalf of the respondent that they were moving the papers before the Collector to detain the detenu under the Goonda's Act. Thus, the dismissal order of the bail application contains vital facts, which were failed to be taken note of. It contains a written statement of fact to the effect that the detenu is involved in some other prohibition cases. But, as a matter of fact, there is no other case pending against him except the ground case. Apart from the fact that there is a pre-determined order, the bail application was dismissed on the possibility of passing of a definite order of detention under the Goonda's Act, which was not taken note of by the detaining authority. 19. The third respondent, in his affidavit dated 30.11.2002 before the second respondent, has stated that Crime No.321 of 2002 under Sections 4(1)(aaa), etc. against the detenu (in Tamil version, the Crime Number is given as 1145 of 2002) dated 19.11.2002 and the case is under investigation and that no bail application is filed. Apart from the fact that a different crime number is given, a wrong statement as to bail is made. Whereas, the bail application filed on 26.11.2002 was opposed on the ground of initiation of proceedings under the Goonda's Act. Excepting the confession statement, not an iota of evidence is available in order to link the detenu with the crime. It is unbelievable that on a busy National Highway Road opposite to Vandalur Zoo, no independent witnesses were available. The alleged confession statement obtained during the illegal custody is made up for the purpose of this case is the inference that could be drawn if we see the circumstances of the case. On this slender and doubtful material, the whole case of preventive detention is based. It may be correct to say that the Evidence Act does not regulate the proceedings under preventive detention. On this slender and doubtful material, the whole case of preventive detention is based. It may be correct to say that the Evidence Act does not regulate the proceedings under preventive detention. But, here, we are concerned with the conduct of the respondent in obtaining signed confession statement contrary to Section 162 Cr.P.C. and it appears that the blank paper signed by the detenu is utilized and the contents filled up for the purpose of the case or the detenu forced to sign on a (x) marked place. 20. Coming to an important aspect of colourable exercise of power by the third respondent, the sponsoring authority for initiating action, we find that the counsel for the petitioner has taken pains to collect the mobile phone bills, though they were initially refused to be issued by the Airtel authorities, and he has furnished before us the details as to the usage of the cellphone, which are found in paragraphs 18 to 21 of the affidavit, where all the details as to the area of operation, telephone number, date and time, actual duration of calls and the tax rate are given. Apart from the second respondent denying the averments contained in paragraphs 18 to 21 of the affidavit of the petitioner as false, incorrect and untrue, according to the second respondent, the third respondent has also denied them as false in his parawar remarks. The third respondent has, in fact, stated in his counter affidavit that the relative of the detenu Kader Jalani would have used the cellphone and according to him, it is rather intriguing to call his divorced wife in Palani. Paragraph 21 of the affidavit of the petitioner is extracted below : " I state that the calls made between 17.11.2002 to 19.11.2002 from my son's mobile phone to the following persons by the 3rd respondent would go to show beyond any reasonable doubt that our statement that my son was taken from my residence on 17.11.2002 at 1.00 a.m. Sl.No. Phone Number Date Name of the person 4 044 2386717 17.11.02 Detenu's House 5 098401 33492 17.11.02 Mr.S.P.Sakthivel, A.D.S.P., Kancheepuram. 6 04114 431045 19.11.02 Chinglepet Prohibition Enforcement Wing. 7 044 8224595 19.11.02 Airtel 8 098400 12345 19.11.02 Airtel 9 044 2332449 19.11.02 K.Sivaraman, Assistant Commissioner, Tambaram. 10 04545 46961 19.11.02 3rd respondent's wife and children residence at Palani. 6 04114 431045 19.11.02 Chinglepet Prohibition Enforcement Wing. 7 044 8224595 19.11.02 Airtel 8 098400 12345 19.11.02 Airtel 9 044 2332449 19.11.02 K.Sivaraman, Assistant Commissioner, Tambaram. 10 04545 46961 19.11.02 3rd respondent's wife and children residence at Palani. 11 -do- 17.11.02 -do- 12 -do- 17.11.02 -do- 13 -do- 17.11.02 -do- 14 04115 552480 17.11.02 Maduranthagam Prohibition Enforcement. 15 98400 11003 17.11.02 not known 16 98412 95747 17.11.02 not known 17 04112 238120 17.11.02 Office of the A.D.S.P., Kancheepuram. 18 04115 552480 17.11.02 Maduranthagam Prohibition Enforcement. 19 98430 60082 17.11.02 BPL voice mail - not known. " 21. From the bills found in paragraph 18, the summary of which is given in paragraph 21, we find that the cellphone could have been operated only by the third respondent. We have no reasons to disbelieve the statement of the counsel for the petitioner that he had made four calls to Palani in order to find out the fact that the third respondent had, in fact, called his wife on 17.11.2002 and 19.11.2002. Learned counsel has also furnished his telephone bill dated 11.4.2003, wherein it is shown that he had called the very same number at Palani, as shown in the Airtel bill, in order to enquire as to the cellphone calls made by the third respondent on 17.11.2002 and 19.11.2002. According to the learned counsel, with a lot of persuasion, the divorced wife of the third respondent had come forward to disclose that the third respondent had contacted his sons on those dates. Further, the other calls made to the Deputy Superintendent of Police, Kancheepuram, the Prohibition Enforcement Wing, Chengalpet, the Assistant Commissioner, Tambaram, the office at Maduranthagam and the Additional Deputy Superintendent of Police, Kancheepuram all emanated from the cellphone of the detenu and obviously, it should have been used only by the third respondent and not by the detenu. 22. A supporting affidavit of one P. Kamal, a wholesale automobile dealer, is filed stating that he knew the detenu, that he was purchasing spare parts from him and that he rang up the detenu on 17.11.2002 to his cellphone 98400 53633, but the person who picked up the phone did not properly answer the call, but simply disconnected the phone. It happened again on the same day evening and on 19.11.2002, the person holding the cell did not allow him to speak to the detenu. It happened again on the same day evening and on 19.11.2002, the person holding the cell did not allow him to speak to the detenu. In reference to the contention that the calls would have been made by the family friend of the detenu from his cellphone, petitioner has filed a reply affidavit denying the use of the cellphone by their family friend to influence higher officials. He says that nobody could know the telephone number of the divorced wife of the third respondent residing at Palani or the cellphone and land line numbers of the superior officers of the third respondent. According to him, the divorced wife of the third respondent had stated, after much persuasion, that the third respondent used to speak to his sons. It is also stated that the third respondent had tampered with the telephone bill and only after the legal notice, the correct bills were furnished by the Airtel authorities. We are convinced that the third respondent had taken the custody of the detenu in the midnight of 16.11.2002/17.11.2002, used his cellphone on 17.11.2002 and when the battery of the phone went down on 18.11.2002, he came to the house of the detenu, picked up the battery charger, charged the cellphone on 18.11.2002 and started using it again on 19.11.2002. 23. All these, coupled with the cellphone bills furnished by Airtel authorities, establish beyond doubt, that there is truth in the averments made in the affidavit as well as the statement made on behalf of the detenu. The document now produced by the third respondent in the form of his daily diary sheets, counter signed by some other officers, cannot be given any credence. The entries simply state that the third respondent was attending particular places every day, as mentioned in the sheet of paper. Thus, the illegal custody of the detenu has followed the demand of Rs.1 lakh from the detenu and his family members and on their failure to meet the said demand, the order of detention was passed by the second respondent at the instance of the third respondent. 24. For all the above reasons, we have no hesitation in holding that the order of detention passed in this case is illegal and is one passed with no basic materials available and in an arbitrary manner. 24. For all the above reasons, we have no hesitation in holding that the order of detention passed in this case is illegal and is one passed with no basic materials available and in an arbitrary manner. The detaining authority would not have passed this order if he had applied his mind to the facts of the case as set out by the sponsoring authority. We are not concerned with the character of the detenu - whether the detenu is a man of character and reputation or is not a paragon of virtue. However, we are concerned with the guaranteed and safeguarded right of a person. Before that right is taken away, there should be proper application of mind on facts and law, since the ordinary criminal law is kept in abeyance for him. 25. In Ayya @ Ayub vs. State of Uttar Pradesh (A.I.R. 1989 S.C. 364), the Supreme Court held that personal liberty is, by every reckoning, the greatest of human freedoms and the laws of preventive detention are strictly construed on a meticulous compliance with procedural safeguards, however technical and strictly insisted upon, by the courts. The material considered by the detaining authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. The Supreme Court further held that there would be vitiation of detention on the ground of non-application of mind if a piece of evidence, which was relevant, though not binding, had not been considered at all if a piece of evidence, which might reasonably have affected the decision whether or not to pass an order of detention, is excluded from consideration. There would be failure of application of mind which, in turn, vitiates the detention. In this case, the detaining authority failed to consider the pre-detention representation made on behalf of the detenu, the bail dismissal order and the glaring factual irregularities in the ground case under investigation. 26. In Debu Mahto vs. State of West Bengal (A.I.R. 1974 S.C. 816), the Supreme Court has held that the order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. 26. In Debu Mahto vs. State of West Bengal (A.I.R. 1974 S.C. 816), the Supreme Court has held that the order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or a series of acts. But, whatever it be, it must be of such a nature that inference can reasonably be drawn from it that the person concerned is likely to repeat such act so as to warrant detention. 27. Though the order of detention had been revoked by the Government, we find that the Constitutional and legal rights of the detenu had been invaded and the resultant detention of the detenu for four months cannot be washed away by the order of revocation and therefore, even though we cannot techically set aside the order of detention to set the detenu free, this is a fit case to award monetary compensation to the detenu for the deprivation of his personal liberty and the damage and suffering he had undergone during and consequent to the passing of the impugned order of detention. We are of the view that the respondents, who are the custodians of law and order, must have shown greater respect for the personal right and liberty guaranteed to the detenu under Articles 21 and 22 of the Constitution of India. The fundamental and inalienable right could be stopped only if the person is acting in any manner prejudicial to the maintenance of public order, on the material available for arriving at the subjective satisfaction, but cannot be exercised arbitrarily on the ipse dixit materials. We find, after considering the matter, that the provisions of the Preventive Detention Act have been misused, misapplied and used for a wrong purpose in this case. We find that the petitioner has established, from the materials available, that the power has been abused and that the personal rights of an innocent person have been seriously infringed. We find, after considering the matter, that the provisions of the Preventive Detention Act have been misused, misapplied and used for a wrong purpose in this case. We find that the petitioner has established, from the materials available, that the power has been abused and that the personal rights of an innocent person have been seriously infringed. The second respondent did not have sufficient materials even to arrive at the subjective satisfaction and had failed to take note of the relevant materials as stated above and therefore, we are of the view that the second respondent has also failed to safeguard the right guaranteed to a citizen of this country. 28. Insofar as the third respondent is concerned, we find that he had acted malafide with an ulterior purpose of extracting money from the detenu and utilising his power to oppose the bail and get the bail application dismissed on the ground of moving the second respondent, with the confidence to clamp the order of detention against the detenu by foisting the flimsy ground case, under investigation, on the detenu and has suppressed these facts before the second respondent. 29. The State Government has got a duty to repair the damage done by its officer to the petitioner's right. The protection under Section 16 of the Act is available only for an action taken in good faith. Far from being bonafide, we find, in this case, an arbitrary exercise of power and callousness on the part of the second respondent in invoking the serious preventive detention law without application of mind and the ulterior motive of the third respondent in sponsoring the case against the detenu. 30. In these circumstances, we consider it appropriate to order compensation to the detenu and determine a sum of Rs.1,00,000/- as compensation. We accordingly direct the respondents to pay the sum of Rs.1,00,000/- to the detenu, within a period of four weeks from today. The amount will be deposited with the Registrar General of this Court and paid to the detenu. The Habeas Corpus Petition is allowed with a cost of Rs.5,000/- on the above terms.