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2005 DIGILAW 258 (MAD)

Sornabai v. The State of Tamilnadu & Another

2005-02-14

P.D.DINAKARAN, S.ASHOK KUMAR

body2005
Judgment :- (PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Habeas Corpus as stated therein.) P.D. Dinakaran, J. The challenge in this habeas corpus petition is to the order of detention dated 31.8.2004, passed by the second respondent against one Rajamony (hereinafter referred as "the detenu"), branding him as a "Bootlegger" and directing preventive detention under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982). The petitioner is the wife of the detenu. 2.1. The learned counsel for the petitioner would contend that in the grounds of detention it is only stated that there is possibility of the detenu coming out on bail and there is no 'imminent possibility' of the detenu coming out on bail and this shows that there was no compelling necessity to pass the order of detention. Learned counsel further contends that there is a vast distinction between 'possibility' of coming out on bail and 'imminent possibility' of coming out on bail and in support of his submission, the learned counsel relied on a decision of this Court reported in (2004)M.L.J.(Crl.)727- (Vasantha vs. The District Magistrate and the District Collector, Perambalur District). 2.2. We have heard the learned Additional Public Prosecutor on the above aspect and also gone through the materials available on record. 2.3. In paragraph 5 of the grounds of detention, the detaining authority has stated that he was aware that there was a possibility of the detenu coming out on bail and it is not stated that there is 'imminent possibility' of the detenu coming out on bail. In the decision relied on by the learned counsel for the petitioner, this Court quashed the order of detention challenged therein after holding in paragraph 2 of the judgment as follows: "2... There is a large distinction between possibility of coming out of bail and imminent possibility of coming out of bail. In the decision relied on by the learned counsel for the petitioner, this Court quashed the order of detention challenged therein after holding in paragraph 2 of the judgment as follows: "2... There is a large distinction between possibility of coming out of bail and imminent possibility of coming out of bail. The mere possibility of coming out of bail might not have invited any authority to pass any detention order, unless it is shown in his mind that he was having compelling necessity to pass the detention order...." The above principle would squarely apply to the facts of the present case and on this ground alone, the impugned order of detention is liable to be quashed. 3.1. That apart, the learned counsel for the petitioner also contended that there was non-application of mind on the part of the detaining authority. 3.2. As regards the second ground, the detenu was arrested on 24.8.2004 at about 6.30 a.m. at Pannipottai by the Sub-Inspector of Police and its party. He was brought to the police station at 8.30 a.m. and thereafter, F.I.R. came to be registered. But, in the arrest report under Section 62 Cr.P.C., the crime number of the case is also given as Crime No.533 of 2004 under Section 4(1-A) of the Tamilnadu Prohibition Act. There is no explanation on the part of the detaining authority as to how the crime number came to be mentioned in the arrest report, which was two hours earlier than the lodging of the F.I.R. In this regard, the learned counsel for the petitioner pressed into service the judgment of this Court in Ramani V. The Commissioner Of Police, Salem, [2004] Mlj (Crl.) 539, wherein this Court has held as follows: ".. 3. The detention is based on the incident dated 9.2.2003. In the order of detention, there is reference to seizure mahazar containing the crime number. It is the assertion of the petitioner that at the time of effecting the seizure, crime number could not have been furnished and it appears that it could not have been prepared at the sport and there has been subsequent insertion in the police station. In the counter, it is admitted that the crime number was not given at the sport but subsequently in the police station the crime number has been added. In the counter, it is admitted that the crime number was not given at the sport but subsequently in the police station the crime number has been added. Whatsoever may be the truth of the explanation, it was the duty of the detaining authority to have dealt with this aspect. However, without making any efforts to find out about such aspect, the order has been passed. 4. Learned counsel for the petitioner has placed reliance upon the decision reported in MARIA SUSAI v. THE COMMISSIONER OF POLICE, etc., [1998] 1 L.W. (Crl.) 284. In the said case, it was found that the crime number had been inserted in the seizure mahazar subsequently. Considering that, there was a clear case of manipulation, the Division Bench of this Court directed, release of the detenu. In another case reported in GOMATHI v. DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KANCHEEPURA, [2002] 1 CTC 669, the detenu was arrested on 18.8.2001 at 9.00 p.m. and the crime was registered at 10.00 p.m. However, in the seizure mahazar prepared at 9.15 p.m. Crime number had been indicated. Inspite of this discrepancy, the detaining authority had not called for any clarification in the matter. It is observed that "We perused the records and we find that the petitioner is right in his submission. This is a clear case of non-application of mind. Ina case of this nature, the detaining authority before passing the detention order should have sought for necessary clarification." On the aforesaid ground, the detention order had been quashed in the said case. 5. Learned Government Advocate (Criminal Side) appearing for the State however, placed reliance upon the decision of the Division Bench of this Court made in H.C.P.No.11 of 2003 which was disposed on 14.10.2003. In the said case, similar discrepancy had been pointed out. However, an affidavit had been filed on behalf of the State to the effect that over mobile phone, the crime number was ascertained and given at the time of seizure. Such explanation was found acceptable by the Division Bench of this Court. 6. However, in the present case, the affidavit on behalf of the State is to the effect that the crime number was subsequently added by the Investigating Officer after the registration of the case in the Police Station. 7. Such explanation was found acceptable by the Division Bench of this Court. 6. However, in the present case, the affidavit on behalf of the State is to the effect that the crime number was subsequently added by the Investigating Officer after the registration of the case in the Police Station. 7. The facts of the present case are entirely different from the facts of the case relied on by the learned Government Advocate (Criminal Side) in the unreported case H.C.P.No.11 of 2003. On the other hand, the facts of the present case are quite similar to the facts in GOMATHI v. DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KANCHEEPURAM, [2002] 1 CTC 669 and MARIA SUSAI v. THE COMMISSIONER OF POLICE, etc., [1998] 1 L.W. (Crl.) 284." 3.3. The facts referred to in the judgment cited above are exactly similar to the facts of this case also. In this case also, the police have not filed any affidavit as to how they got the crime number, viz., by using wireless or cellphone to contact the relevant police station to ascertain the crime number. The absence of any such affidavit filed on behalf of the Sponsoring authority and the failure of the detaining authority to get an explanation on this aspect vitiates the order of detention. 4. On both the grounds, the petition is liable to be allowed and hence, the same is allowed. The order of detention dated 31.8.2004 is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required in any other crime. No costs.