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2006 DIGILAW 2 (MAD)

Udhya Rani v. The Commissioner of Police & Others

2006-01-02

N.PAUL VASANTHAKUMAR, P.SATHASIVAM

body2006
Judgment :- (Petition filed under Article 226 of the Constitution of India praying for issuance of writ of habeas corpus as stated therein.) P. Sathasivam, J. The petitioner by name Udhya Rani, challenges the detention order dated 14.07.2005 of the Commissioner of Police, Greater Chennai, first respondent herein, detaining her husband, viz., Anbuselvam under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (in short "Tamil Nadu Act 14 of 1982"). 2. The learned counsel for the petitioner after taking us through the impugned grounds of detention and all other materials has raised the following contentions: (a) In the absence of earlier instances, cases, etc., the Detaining Authority is not justified in invoking Act 14 of 1982 on the basis of solitary case in Crime No.152 of 2005; (b) When there is no such Chapter in the Copy Right Act, 1957, mentioning of Chapter XVI in the grounds of detention would amount to non application of mind on the part of Detaining Authority; (c) Inasmuch as the detenu has not moved any bail application before the Court concerned, the Detaining Authority is not justified in arriving at a conclusion that there is imminent possibility of his coming out on bail, which also shows non-application of mind; (iv) Inasmuch as the Detaining Authority has not referred or considered to the fact that the detenu will indulge in "such activities in future", the impugned order of detention is liable to be quashed; (e) There was no sufficient material to pass an order under Act 14 of 1982; and (f) The representation of the detenu dated 22.07.2005 has not been considered and even otherwise, there was delay in the disposal of the same. 3. The learned Government Advocate appearing for the respondents by placing the records, met all the points. 4. Before considering the contentions raised by the learned counsel for the petitioner, it is our duty to mention that the counsel appearing for the petitioner has fairly admitted that she is not challenging the Amendment made to Act 14 of 1982 incorporating "Video Pirates" in the Main Act. He also admitted that the petitioner is not disputing / questioning the maintenance of public order as stated in the provisions. 5. He also admitted that the petitioner is not disputing / questioning the maintenance of public order as stated in the provisions. 5. With regard to the first contention, though the learned counsel for the petitioner vehemently submitted that there are no adverse or previous cases relating to video piracy except the present one, first of all, as rightly pointed out by the learned Government Advocate, it is for the Detaining Authority to have subjective satisfaction on the question, whether allowing the detenu to continue his business would affect the maintenance of public order attracting the provisions of Act 14 of 1982. In other words, the sufficiency of materials cannot be gone into by this Court in this petition. Even otherwise, perusal of the grounds of detention amply shows the seizure of following items from the shop of the detenu (vide para 2). "1. Pirated Tamil Film VCDs (includes new films) -- 12 Nos. 2. Pirated Tamil film songs (Oliyum Oliyum) VCDs -- 45 Nos. 3. Pirated Tamil film DVDs -- 74 Nos. 4. Pirated English Film DVDs -- 14 Nos. 5. Pirated Tamil Songs MP3 DVDs -- 29 Nos. 6. Tamil film songs VCDs (Original) -- 200 Nos. 7. Tamil film Oliyum Oliyum VCDs -- 130 Nos. 8. Tamil film VCDs -- 50 Nos." It also shows that out of the seizures, recent released Tamil films i.e., also includes. " It further shows that based on the confession statement of the detenu, the godown at No.8, Kodimarathu Street, Royapuram, Chennai-11 was searched and the following items were seized by the Officers. "1. Pirated Tamil Film Songs MP3 CDs - 260 Nos. 2. Pirated Tamil Film songs (Oliyum Oliyum) VCDs - 30 Nos. 3. Cover for keeping MP3 CDs - 19,000 Nos. 4. Tamil songs and MP3 DVD cover - 16,000 Nos. 5. Stickers for pasting over the CDs - 10,000 Nos. 6. Film for preparing DVD - 12 Nos. " Thereafter, the Inspector of Police took up the investigation of the case, and after examining the witnesses and recording their statements, the detenu was produced before the learned XV Metropolitan Magistrate, George Town, Chennai and lodged at Central Prison, Chennai till 20.07.2005. Stickers for pasting over the CDs - 10,000 Nos. 6. Film for preparing DVD - 12 Nos. " Thereafter, the Inspector of Police took up the investigation of the case, and after examining the witnesses and recording their statements, the detenu was produced before the learned XV Metropolitan Magistrate, George Town, Chennai and lodged at Central Prison, Chennai till 20.07.2005. Considering the offences punishable under the Copy Right Act, 1957 and taking note of the fact that by such illegal distribution of compact discs infringing copyright, the public are also indirectly being abetted to commit the said crime of infringing copyright and thereby he acted in a manner prejudicial to the maintenance of public order, the Detaining Authority has passed the impugned order under Act 14 of 1982. In the light of the materials found in the grounds of detention, we are unable to accept the first contention raised by the learned counsel for the petitioner. 6. Coming to the second contention, it is true that in paragraph 2, the Detaining Authority has mentioned that, "Hence I am satisfied that Thiru Anbuselvam committed offences under Chapter 16 of the Copy Right Act, 1957.... " It is not in dispute that the Copy Right Act, 1957 ends with Chapter XV and there is no Chapter XVI as stated in the grounds of detention. While meeting the above contention, the learned Government Advocate submitted that first of all the said objection has not been raised in the affidavit filed in support of the above petition and secondly it is only a typhograpical error. Though the respondents have not filed counter affidavit explaining the same, inasmuch as there is no Chapter XVI, we are of the view that reference to Chapter XVI in the grounds of detention is only a typhograpical error and it cannot be construed as though the Authority has not applied his mind. In fact, the relevant Chapter is Chapter XIII of Copy Right Act, 1957, which deals with offence of infringement of copy right or other rights under the Act. 7. Coming to the third contention that in the absence of application for bail, the Detaining Authority is not justified in arriving at a conclusion that there is "imminent possibility" of the detenu coming out on bail. 7. Coming to the third contention that in the absence of application for bail, the Detaining Authority is not justified in arriving at a conclusion that there is "imminent possibility" of the detenu coming out on bail. The said paragraph, viz., para 4 shows that the Detaining Authority was aware that the detenu Anbuselvam was remanded by the Video Piracy Cell, Chennai City Unit I, in Crime No.152 of 2005 and aware that the detenu had not moved any bail application before the concerned Court so far. Taking note of all these facts in mind, the Detaining Authority stated that there is imminent possibility of his coming out on bail in the above case by "filing bail application", since in similar cases, normally bail was granted by the lower Court or higher Court. In this regard it is useful to refer the decision of this Court rendered in HCP.No.71 of 2005 dated 20.06.2005 (Karthik @ Karthikeyan Vs. The Commissioner of Police, Greater Chennai, Madras-600 008 and others), wherein while considering a similar reference made by the Detaining Authority, based on the judgment of the Supreme Court in 1991 SCC (Cri) 88 (KAMARUNNISSA vs. UNION OF INDIA) as well as 1992 SCC (Cri) 1 (ABDUL SATHAR IBRAHIM MANIK vs. UNION OF INDIA), the Division Bench has concluded, "9. It is not in dispute that the dictum laid down in those cases still holds the field. It is clear from the above decisions that a detention order can be passed if the Detaining Authority has reason to believe on the basis of reliable materials placed before him that there is a real possibility of his being released on bail and on being so released, he would in all probability indulge in prejudicial activity. This aspect depends upon various considerations and facts and circumstances of each case. As pointed out in Abdul Sathar Ibrahim Manik's case, if the Detaining Authority satisfies himself that though the detenu has not filed bail application and there is a possibility of his being released on bail and on being so released, he is likely to indulge in prejudicial activity, then, the authority is free to invoke provisions of Preventive Detention Act. As pointed out in Abdul Sathar Ibrahim Manik's case, if the Detaining Authority satisfies himself that though the detenu has not filed bail application and there is a possibility of his being released on bail and on being so released, he is likely to indulge in prejudicial activity, then, the authority is free to invoke provisions of Preventive Detention Act. In the case on hand, it is not in dispute that the Detaining Authority was aware of the relevant fact that on the date of the detention order, the detenu was in remand and though he has not moved any bail application, it cannot be ruled out that he will not file any bail application for coming out and in such circumstances, if he comes out, he will indulge in further activities, which will be prejudicial to the maintenance of the public order. We find that the Detaining Authority was possessed of all the required materials/details before clamping the order of detention. We are in respectful agreement with the said view. In such circumstances it cannot be claimed that the Detaining Authority has not applied his mind. Though the Detaining Authority has stated that "there is imminent possibility of his coming out on bail", in the same sentence, the Authority has made it clear that "by filing bail application", it would be possible for him to come out on bail. Further, in similar cases bail orders have been granted by the Court concerned or by the higher Court. We are therefore of the view that the Detaining Authority, after possessing of all the details, has arrived at a proper conclusion; accordingly, we reject the said contention. 8. The other contention of the learned counsel for the petitioner is that the Detaining Authority has not considered the relevant fact, viz., the detenu is likely to indulge in such acts in future. In support of the above claim, the learned counsel for the petitioner has very much relied on the decision of this Court in the case of M. Marimuthu vs. The Joint Secretary to Government of India and another reported in 1992 Law Weekly (Crl.) 407. The learned counsel for the petitioner heavily relied on the conclusion of the Division Bench, which is available at paragraph 22. The learned counsel for the petitioner heavily relied on the conclusion of the Division Bench, which is available at paragraph 22. We have gone through the factual details in that case as well as the relevant provisions of the COFEPOSA Act and Act 14 of 1982. It is true that the Division Bench has observed that the past and present activities may be sufficient for punitive action, but the important thing for preventive detention must be the possible indulgence in prejudicial activities by the person sought to be detained in future. There is no dispute regarding the above proposition. As rightly pointed out by the learned Government Advocate, by perusal of the entire paragraph, viz., para 4 of the impugned grounds of detention, it cannot be said that the Detaining Authority has not considered the "future activities" of the detenu as claimed by the learned counsel for the petitioner. In the said paragraph, after referring the fact that the detenu under remand has not moved any bail application, but there is imminent possibility of coming out on bail by filing bail application, the Detaining Authority has specifically stated that, "if he comes out of bail he will indulge in future activities which are prejudicial to the maintenance of public order. ... " In such a circumstance, we are unable to accept the above contention raised by the learned counsel for the petitioner. 9. Though an argument was made that in the absence of sufficient materials, the order of detention cannot be sustained, as rightly pointed out, perusal of statements of witnesses makes it clear that the Detaining Authority is justified in passing the order of detention under Act 14 of 1982. We also verified the statements of witnesses found in the paper book. Hence, the said contention is also liable to be rejected. 10. Coming to the last contention, though a claim is made that the representation dated 22.07.2005 by the detenu has not been considered, the particulars furnished by the learned Government Advocate show that the representation said to have been made by the detenu from the prison had been received by the Government on 04.08.2005. Before the said date, the Government had also received another representation on 03.08.2005, which is dated 01.08.2005. Before the said date, the Government had also received another representation on 03.08.2005, which is dated 01.08.2005. Based on the same, remarks were called for on 04.08.2005; remarks were received on 05.08.2005; file submitted on 09.08.2005 and the same was dealt with by Under Secretary and Deputy Secretary on 09.08.2005; finally, an order was passed by the Minister for Prohibition and Excise on 10.08.2005; rejection letter was prepared on 12.08.2005; rejection letter was sent to the detenu on 17.08.2005; and the same was served on the detenu on the same day i.e., on 17.08.2005 itself. If we ignore 13.08.2005 and 14.08.2005 being Saturday and Sunday respectively, we are of the view that there is no undue delay. In so far as the other representation is concerned, the particulars show that the same was received by the Government only on 04.08.2005 and the same was also considered and rejected on 17.08.2005. Here again, perusal of the details shows that there is no delay. The contention of the learned counsel for the petitioner is also liable to be rejected. In the light of what is stated above, we do not find any valid ground for interference; accordingly, this petition fails and the same is dismissed.