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2003 DIGILAW 781 (MAD)

Bilal v. State of Tamil Nadu & Another

2003-04-30

P.SHANMUGAM, S.K.KRISHNAN

body2003
Judgment :- P. SHANMUGAM, J. The brother of the detenu has filed the above Habeas Corpus Petition praying to quash the order of detention dated 27.8.2002 passed by the second respondent under Section 3(1) of Tamil Nadu Act 14 of 1982. The detenu was branded as a 'Goonda'. 2. The brief facts of the case are as follows :- The detenu is involved in 18 cases of offences mostly against property, namely house breaking and theft of jewellery and other items. He had been convicted in 16 cases and the other two cases are pending trial. While so, on 3.8.2002, one Thiru. Janakiraman of Chetpet, Vandavasi preferred a complaint, inter alia, contending that while he was going to the auto stand for work, the detenu suddenly dashed on him and held him by pulling his shirt. When the complainant questioned this, the detenu suddenly took out a knife and by threatening to kill him, snatched Rs.150/- from his shirt pocket. When the complainant attempted to prevent this, the detenu assaulted him by using a knife and caused bleeding and lacerated injuries on the complainant. On his shouts for rescue, the detenu further snatched the complainant's wrist watch and threatened the public who tried to come to the rescue of the complainant by showing the knife. The public passing by the road, seeing his deadly activities, ran away in all directions out of fear, the shop owners closed their shops and the traffic in that area was paralyzed. Taking advantage of this confusion, the detenu escaped with the cash and the wrist watch. The complainant came to the police station and gave an oral complaint. The Inspector of Police registered a case in Vandavasi South Police Station Crime No.156 of 2002 under Section 397 of the Indian Penal Code and sent the complainant to the Government Hospital for treatment. On further investigation, the Inspector of Police arrested the detenu on 6.8.2002 at 1100 hours at Vandavasi-Chetpet Road near Anjukannu Varavathi. The detenu gave a voluntary confession statement. The knife used to assault the complainant and the wrist watch snatched from him were recovered from the possession of the detenu and the recovery of the motorcycle revealed that it was stolen from Pondicherry and the Inspector also subsequently recovered many of the stolen properties under the cover of a mahazar. The detenu gave a voluntary confession statement. The knife used to assault the complainant and the wrist watch snatched from him were recovered from the possession of the detenu and the recovery of the motorcycle revealed that it was stolen from Pondicherry and the Inspector also subsequently recovered many of the stolen properties under the cover of a mahazar. The detenu was produced before the Judicial Magistrate, Vandavasi on 7.8.2002, who remanded him to judicial custody. The seized articles were sent to the Court Under Form-95. The investigation of the case was not completed and it was found that the offence relates to endangering human lives by committing robbery and criminal intimidation punishable under Chapters XVI and XVII of the Indian Penal Code. It was noticed that the detenu was already involved in 18 cases, out of which he has been convicted in 16 cases and the other two cases are pending trial. The investigation in those cases revealed the violent activities of the detenu and the detenu was found to have been habitually committing the offences of house breaking by night and day and committing theft and robbery by endangering human life and personal safety of the public repeatedly and indulging in brutal activities. The activities of the detenu had created a feeling of insecurity in the minds of the public in the area and thus disturbed the normal life of the community, the tranquility and tempo of the society were also paralyzed and public order was affected to a great extent. In these circumstances, from the materials placed before the detaining authority, he was satisfied that there was a compelling necessity to detain the detenu with a view to prevent him from indulging in such prejudicial activities in future and accordingly passed the impugned order of detention. The said order is now under challenge. 3. Learned counsel for the petitioner made detailed submissions, the summary of which is given below : i) There is a discrepancy in reference to the number of items of jewellery stolen as per the First Information Report in the ground case and the recoveries made. ii) There is non-application of mind on the part of the detaining authority in considering the possibility of the detenu committing the crime. iii) There is discrepancy in reference to the time of arrest. ii) There is non-application of mind on the part of the detaining authority in considering the possibility of the detenu committing the crime. iii) There is discrepancy in reference to the time of arrest. iv) The representation of the detenu stating that the cases were foisted on him was not considered. v) The Tamil version of pages 2 to 20 were not supplied. vi) There is delay in disposal of the representation of the detenu. For all these reasons, learned counsel prays for quashing the impugned order of detention. 4. Learned Additional Public Prosecutor submits that the discrepancy in reference to the recovery of stolen property is immaterial, since though the complainant might have referred to a particular quantity of jewellery stolen, it may turn out to be more or less. In any event, according to him, those individual recoveries under the mahazar in reference to the ground case and as to the quantity are not relied upon documents so as to say that there is non-application of mind. According to him, the word "if" found in paragraph 5 of the detention order is superfluous and in the facts and circumstances of the case, it cannot be stated that because of this, there is non-application of mind. He therefore submits that the detenu is a notorious, habitual offender and that a cursory reading of the 18 adverse cases registered against him would clearly reveal that this is a fit case where preventive detention has to be invoked and has been rightly invoked and hence, the order does not call for any interference. 5. We have heard the counsel, gone through the records and considered the matter carefully. 6. The detaining authority has stated in the grounds of detention that the Inspector of Police, Vandavasi Circle has recovered stolen properties in Vandavasi South P.S. Crime Nos.119/20022 u/s. 454, 380 IPC and 121/2002 u/s. 454, 380 IPC from the receivers under a cover of mahazar. It is stated that the Inspector of Police has brought the detenu along with the recovered properties at 0930 hours on 7.8.202 and thereafter produced him before the Judicial Magistrate, Vandavasi on the same day. It is also stated that the seized articles were sent to the Court under Form-95 and the investigation of the case is not yet completed. It is stated that the Inspector of Police has brought the detenu along with the recovered properties at 0930 hours on 7.8.202 and thereafter produced him before the Judicial Magistrate, Vandavasi on the same day. It is also stated that the seized articles were sent to the Court under Form-95 and the investigation of the case is not yet completed. The above statement, in the grounds of detention, did not refer to the actual quantity of stolen jewels recovered in each of the pending case. The crime number in the ground case is 156 of 2002 registered under Section 397 IPC, whereas the last of the adverse case, Item No.18 is Crime No.121 of 2002 registered under Sections 454 and 380 IPC. The First Information Report relating to the said crime number, viz. Cr.No.121/2002 says that the detenu committed the offence of house breaking by day on 2.7.2002 and committed theft of gold jewels and silver ornaments from the house of one K. Shanmugasundaram, all worth Rs.87,000/-. The properties were subsequently recovered. The First Information Report, of course, refers to the total quantity of stolen jewels as about 9 sovereigns. It is true that in reference to the recoveries based on the mahazars found at pages 44, 45, 46, 47, 48 and 49 of the booklet, nearly 200 grams of jewels seems to have been recovered. As rightly pointed out, these recoveries were effected on the basis of the information given by the detenu and it is more than what was said to have been stolen in Crime No.121/2002. There is no reference to the exact quantity of missing jewels complained of and the recoveries made. What is stated in the grounds of detention is only to the effect that the recovered properties were brought to the police station and produced before the Magistrate. There is no need to go into the details of the exact amount of the recoveries made and the discrepancy, if any, in reference to the particular crime number. All these recoveries were effected in the presence of witnesses and if the cases are under investigation, it has to be found out as to whether these jewels are related to Crime No.121/2002 or Crime No.119/2002 since the case is pending trial. All these recoveries were effected in the presence of witnesses and if the cases are under investigation, it has to be found out as to whether these jewels are related to Crime No.121/2002 or Crime No.119/2002 since the case is pending trial. There is no need to seek for a clarification in reference to the alleged discrepancy since that is not the material on which the detention order has been passed. We do not find any substance in the submission that because there is a material discrepancy in reference to the quantity of jewels stolen and the quantity recovered and that there is excess recovery and therefore, the detention order suffers from the vice of non-application of mind. 7. Paragraph 5 of the grounds of detention reads as follows : "I am aware that he (the detenu) has not filed any bail application so far. However, there is an imminent possibility of his filing bail application or move the higher courts for bailing comes out on bail. I am also aware that in such cases, if the bail is granted, after a lapse of some time, there is an imminent possibility of the detenu coming out on bail and if the detenu is let to remain at large, he is likely to indulge in such further prejudicial activities in future as well, and therefore, there is a compelling necessity to pass this order of detention with a view to prevent him from indulging in such prejudicial activities, in future." The Tamil version of paragraph 5 of the grounds of detention reads as follows : “,th; ,Jtiuapy; $hkPd; kD vija[k; jhf;fy; bra;atpy;iy vd;gij ehd; mwpntd;/ Mdhy; mj;jifa $hkPd; kDitj; jhf;fy; bra;tjw;Fk; cah; epiy ePjpkd;w';fspy; mth; cldoahf $hkPdpy; tpLtpf;fg;gLtjw;Fk; tha;g;g[ cs;sJ/ ,j;jifa neh;t[fspy; rpwpJ fhyk; fHpj;J ,tUf;F $hkPd; mspf;fg;gl;L tpLtpf;fg;gl;lhy;. ,dp ,th; nkw;bfhz;L ,j;jifa ghjfkhd eltof;iffspy; In the English version, the word 'if' is superfluous and according to the learned counsel for the petitioner, this shows that the detaining authority has not applied his mind. If we read the whole paragraph and its translated Tamil version, there is absolutely no misunderstanding or confusion that would arise on reading the grounds. We find that there is no confusion in the mind of the detaining authority except for a superfluous word 'if' having been used in the said paragraph. If we read the whole paragraph and its translated Tamil version, there is absolutely no misunderstanding or confusion that would arise on reading the grounds. We find that there is no confusion in the mind of the detaining authority except for a superfluous word 'if' having been used in the said paragraph. In Kamarunissa vs. Union of India [1991 (1) S.C.C. (Cri.) 88], the Supreme Court, after analyzing the previous decisions, has held on this subject as follows : "From the catina of decisions referred to above, it seems clear to us that even in the case of a person in custody, a detention order can validly be passed - (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him : (a) that there is a real possibility of his being released on bail; and (b) that on being so released, he would, in all probability, indulge in prejudicial activity; or (3) if it is felt essential to detain him to prevent him from so doing." In Rivadeneyta Ricardo Augustine vs. the Govt. of N.C.T. Of Delhi & Others (1994 S.C.C. 354), the Supreme Court held that in that case, the detention order fell short of the requirement enunciated in Kamarunissa's case and observed as follows : "It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court in Kamarunissa's case. Even in the return filed in this petition, the authority has not stated in response to ground (b) of the writ petition that there was material before him, upon which he was satisfied that the petitioner was likely to be released and that release was imminent." 8. From the principle laid down by the Supreme Court, it is clear that the word 'imminent' is not absolutely essential. It would be sufficient even to state that the detenu was likely to be released on moving a petition for bail. In Ahmed Nasser vs. State of Tamil Nadu [1999 S.C.C. (Cri.) 1469], the Supreme Court held that the expression 'likely to be released' connotes chances of being bailed out in case there being pending bail application or in case if it is moved in future, is decided. In Ahmed Nasser vs. State of Tamil Nadu [1999 S.C.C. (Cri.) 1469], the Supreme Court held that the expression 'likely to be released' connotes chances of being bailed out in case there being pending bail application or in case if it is moved in future, is decided. The word 'likely' shows that it can be either way. It was held that the conclusion of the detaining authority on the facts of that case that there was likelihood of the detenu being released on bail cannot be said to be based on no evidence. 9. The judgment referred to by the counsel for the petitioner in Amrit Lal vs. Union of India [2001 S.C.C. (Cri.) 147], it was held that if a person is in custody and there is an imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. There must be cogent material before the officer passing the order of detention that the detenu is likely to be released on bail. The inference must be drawn from the material available on record and must not be ipse dixit of the officer passing the order of detention. In that case, the reasoning was that there was likelihood of the detenu moving an application for bail, which is different from the likelihood of the detenu being released on bail and therefore, it was held that it was not sufficient compliance with the requirement. Besides, in that case, the detenu was involved in an offence involving narcotic substances and the officer who passed the order of detention did not consider the fact of the likelihood of the detenu being released on bail and hence, the order of detention in that case was quashed. In contrast, our case is one where the adverse cases against the detenu are all relating to house breaking and theft, and the detenu herein had also been convicted in 16 out of the 18 cases registered against him of similar nature and the other two cases of house breaking by day and theft of gold jewellery are pending investigation and trial. The detaining authority, in this case, was aware that though the detenu has not filed any bail application, he is likely to file bail applications and since bail is granted in such cases after lapse of some time, there is possibility of the detenu coming out on bail and indulging in further prejudicial activities in future. Therefore, the judgment referred to by the counsel for the petitioner will not apply to the facts of the case on hand. 10. Applying the above principles to the case on hand, what the detaining authority has stated in paragraph 5 can be summarized as follows :- i) He was aware that the detenu had not filed any bail application so far. ii) He was aware that there is an imminent possibility of his filing the bail application. iii) He was aware of the imminent possibility of his moving the higher courts for bail. iv) He was also aware that in such cases, bail is granted after lapse of some time and that there is an imminent possibility of the detenu coming out on bail. v) If the detenu is let to remain at large, he is likely to indulge in such further prejudicial activities in future and therefore, there is compelling necessity to pass the order of detention. Thus, the detaining authority, in this case, satisfies all the requirements as set out in the above principles of law laid down by the Supreme Court, for passing the order of detention and hence, we are of the view that there is no illegality in the said order. 11. As per the detention order, the detenu was arrested on 6.8.2002 at 1100 hours at Vandavasi-Chetpet Road near Anjukannu Varavathi and he gave a voluntary confession statement which was recorded at that time. The detenu was produced before the Judicial Magistrate, Vandavasi on 7.8.2002 and he was initially remanded for 15 days till 21.8.2002. The Arrest Card prepared as per Section 62 of the Code of Criminal Procedure found at page 71 of the booklet also specifically says that the detenu was arrested at 11 am on 6.8.2002. The requisition for remand report found at page 66 also refers to the arrest of the detenu at 11 am on 6.8.2002 in the presence of witnesses. The requisition for remand report found at page 66 also refers to the arrest of the detenu at 11 am on 6.8.2002 in the presence of witnesses. The recovery mahazar in reference to Crime No.305 of 2002 refers to the recovery of some jewels from a pawn broker shop on 6.8.2002 at 2.30 pm. The reference to the month as 7' is taken advantage of to say that the detenu must have been available in July, 2002 itself. As rightly pointed out, considering the consequence of the recoveries made, it is only a mistake of showing 7' (July) instead of 8' (August). Thus, we do not find any discrepancy in reference to the time of arrest of the detenu. 12. The representation on behalf of the detenu sent by his counsel dated 30.9.2002 was duly considered without any delay. The representation was placed before the Advisory Board and was considered and rejected by the Advisory Board as well. 13. In reference to the next contention, it is seen that pages 2 to 20 of the booklet give particulars of the adverse cases. Except the heading of the columns being in English, the subject matter is typed and written in Tamil, which clearly makes out the particulars of the offences committed by the detenu and the findings of the court. All the material particulars are in Tamil. Therefore, it is not correct to say that for want of the Tamil translation of the headings of the columns, the detenu was prevented from making an effective representation. After going through pages 2 to 20 of the booklet, we find that there is no substance in the said submission. The detenu can easily make out the particulars contained in those pages in reference to the calendar cases and the findings of the court in respect of the same. 14. After going through pages 2 to 20 of the booklet, we find that there is no substance in the said submission. The detenu can easily make out the particulars contained in those pages in reference to the calendar cases and the findings of the court in respect of the same. 14. With regard to the contention that the representation of the detenu not having been considered expeditiously, we find that the representation sent on behalf of the detenu was considered in the following manner:- ============================================================ (1) Date of receipt of the representation 1.10.2002 (2) Parawar remarks called for on 3.10.2002 (3) Parawar remarks received by Government on 21.10.2002 (4) File Submitted on 22.10.2002 (5) Under Secretary dealt with the file on 23.10.2002 (6) Deputy Secretary dealt with the file on 23.10.2002 (7) Honourable Minister (P&E) dealt with the file on 24.10.2002 (8) Representation rejected on 25.10.2002 (9) Rejection order Served on the detenu on 30.10.2002 ============================================================ ============================================================ (1) Representation received from Government on 7.10.2002 (2) Remarks called for from Police side 7.10.2002 (3) Parawar Remarks from the Sponsoring Authority 10.10.2002 (4) Report sent to Government on 11.10.2002 (5) Rejection orders passed by the Government on 25.10.2002 ============================================================ From a reading of the above dates of consideration of the representation of the detenu, we find that the parawar remarks called for by the Government on 3.10.2002 were received by the detaining authority on 7.10.2002 and in turn, the remarks were called for from the sponsoring authority on 10.10.2002 and the report was sent to the Government on 11.10.2002. The report was received by the Government on 21.10.2002. Between 11.10.2002 and 21.10.2002, we find that 12th, 13trh, 14th and 15th were Ayudha Pooja Government Holidays and 19th and 20th were Saturday and Sunday (Government Holidays). There were only three working days in between, namely 16.10.2002 to 18.10.2002 and 21.10.2002, when the Government received the remarks. Therefore, the said delay was caused in sending the communication through post. Hence, it cannot be stated that there is a delay in disposal of the representation of the detenu. The Government has taken 27 days in disposing of the representation and from the dates, the particulars furnished from the records and the submission of the learned Additional Public Prosecutor, it is clear that the representation was continuously attended to and there is no delay on the part of the Government in considering the same. 15. The Government has taken 27 days in disposing of the representation and from the dates, the particulars furnished from the records and the submission of the learned Additional Public Prosecutor, it is clear that the representation was continuously attended to and there is no delay on the part of the Government in considering the same. 15. In the light of the fact that the detenu was involved in eight adverse cases of house breaking and theft of jewellery and other articles, it was rightly construed that the activities of the detenu constituted a public order problem. There was a constant threat by the detenu by virtue of his criminal activities, which the normal law could not prevent him from indulging in. Therefore, as rightly pointed out by the learned Additional Public Prosecutor, this is a fit case which requires imposition of detention order against the detenu. 16. Considering the above facts and circumstances, we do not find any ground to interfere with the order of detention. The Habeas Corpus Petition fails and it is accordingly dismissed.