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2012 DIGILAW 967 (MAD)

Ganapathy @ Kila @ Prabhakaran v. Secretary to the Government

2012-02-23

G.M.AKBAR ALI, K.MOHAN RAM

body2012
Judgment :- K. Mohan Ram, J. The detenu himself is the petitioner in the above Habeas Corpus Petition. The detenu came to the adverse notice of the police authorities in the following two adverse cases, namely, in (i) Crime No.397 of 2010 on the file of the T-11 Thirunindravur Police Station for the offence under Sections 147, 148, 341 and 302 IPC @ 120(b), 341, 302 read with 109 IPC and (ii) Crime No.506 of 2011 on the file of the T-11 Thirunindravur Police Station for the offence under Sections 341 and 392 IPC. 2. Subsequently in respect of an occurrence that took place at about 12.00 noon on 15.09.2011, the detenu was arrested at 14.30 hours on 15.09.2011 and he was produced before the Court of Judicial Magistrate, Thiruvallur, and he was remanded to judicial custody till 29.09.2011 and his custody was extended till 13.10.2011. 3. The Sponsoring Authority, by furnishing the relevant materials before the Detaining Authority, sought for the detention of the detenu as a 'Goonda' under Section 2 (f) of The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) (hereinafter referred to as "the Act"). The Detaining Authority, after perusing the materials before him and after forming the subjective satisfaction that the detenu has acted in a manner prejudicial to the maintenance of the public order as such he is a Goonda as contemplated under Section 2 (f) of the Tamil Nadu Act 14 of 1982, passed the detention order and the same is being challenged in the above Habeas Corpus Petition. 4. Heard the learned counsel on either side. 5. Learned counsel for the petitioner submitted that the detenu sent a post detention representation dated 11.11.2011 but the same has been rejected only on 02.12.2011 and the rejection order was served on 08.12.2011 and hence there is an unexplained delay in the disposal of the representation, dated 11.11.2011, which vitiates the order of detention. He further submitted that in the English version of the grounds of detention, the Detaining Authority in several places has referred the name of the detenu as 'Thiru.Ganapathy @ Kila @ Prabhakaran' and has also at several places referred the name of the detenu as 'Tvl.Ganesan @ Kila @ Prabhakaran'. He further submitted that in the English version of the grounds of detention, the Detaining Authority in several places has referred the name of the detenu as 'Thiru.Ganapathy @ Kila @ Prabhakaran' and has also at several places referred the name of the detenu as 'Tvl.Ganesan @ Kila @ Prabhakaran'. He further submitted that the said error committed by the detaining authority, in wrongly stating the name of the detenu in the English version of the grounds of detention, shows clear non application of mind on the part of the Detaining Authority and the casual manner in which the order of detention has been passed. He further submitted that when the personal liberty of the detenu is sought to be curtailed by passing an order of preventive detention, the Detaining Authority is expected to apply his mind carefully to each and every material placed before him and had the Detaining Authority perused the materials placed before him and applied his mind on those materials, the aforesaid mistake relating to the name of the detenu would not have occurred and therefore, the learned counsel submitted that the detention order has been passed in a very casual manner and therefore, the detention order cannot be sustained. In support of his said contentions, the learned counsel based reliance on a Division Bench decision of this Court reported in 1994-2-L.W. (Crl.) 552 (Sathi @ Muthuswamy v. Secretary to Government of Tamil Nadu) and a Division Bench decision of Gujarat High Court reported in 1994 CRI.L.J. 365 (Maheshbhai H. Parekh v. District Magistrate, Bhavnagar and Others). Learned counsel submitted that except the aforesaid submissions, there are no other submissions to be made. 6. Countering the said submissions, the learned Additional Public Prosecutor for the respondents submitted that though there are some errors in the English version of the grounds of detention relating to the name of the detenu, no such error is found in the Tamil version of the grounds of detention. He further submitted that when admittedly the language known to the detenu is Tamil and the error pointed out by the learned counsel for the petitioner is in English, therefore, the same will not in any manner prejudice the right of the detenu and the said errors cannot be said to be major errors which would vitiate the order of detention. He further submitted that the detenu has signed his name only as Prabhakaran while receiving the order of detention as well as the grounds of detention and also in the affidavit filed before this Court, thus, the detenu has not been prejudiced by the wrong mentioning of his name in the English version of the grounds of detention as "Tvl.Ganesan @ Kila @ Prabhakaran" instead of "Thiru.Ganapathy @ Kila @ Prabhakaran". He further submitted that this is not a case of mistaken identity of the detenu and it is also not the contention of the petitioner. In support of his said contention, the learned Additional Public Prosecutor based reliance on a decision of the Division Bench of this Court, dated 05.08.2003, rendered in HCP No.2330 of 2002 (Mrs. Sudha v. The Secretary to Government, Chennai and another) and another decision of a Division Bench of this Court, dated 18.01.2006, rendered in HCP No.851 of 2005 (R.Kalavathi v. The State of Tamil nadu and two others). As far as the contention of the learned counsel for the petitioner relating to delay in disposal of the post detention representation of the petitioner's counsel is concerned, the learned Additional Public Prosecutor submitted that there is absolutely no delay in the disposal of the representation and has furnished the details relating to the file movement of the representation. 7. We have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. 8. A perusal of paragraph 3 of the English version of the grounds of detention shows that the Detaining Authority starts describing / referring the detenu as "Thiru.Ganapathy @ Kila @ Prabhakaran" and thereafter, has mentioned the name of the detenu as "Tvl.Ganesan @ Kila @ Prabhakaran" and again at the end of page 4 onwards he once-again has stated the name of the detenu as "Thiru.Ganapathy @ Kila @ Prabhakaran". Thus, admittedly, an error has been committed by the Detaining Authority while stating the name of the detenu, but, admittedly, no such error is found in the Tamil version of the grounds of detention. 9. According to the learned counsel for the petitioner, the said errors not only will amount to non application of mind on the part of the Detaining Authority, but it will reflect the casual manner in which the order of detention has been passed by the Detaining Authority. 9. According to the learned counsel for the petitioner, the said errors not only will amount to non application of mind on the part of the Detaining Authority, but it will reflect the casual manner in which the order of detention has been passed by the Detaining Authority. In support of his contention, he relied upon two decisions referred to supra. 10. In the decision reported in 1994-2-L.W.(Crl.) 552 (referred to supra) a Division Bench of this Court had an occasion to consider the cumulative effect of discrepancies found in the grounds of detention. In that case, the contention put forth by the detenu was that though the detenu was arrested on 03.08.1993, the affidavit filed by the Inspector before the Detaining Authority indicates that the detenu was in detention from 18.06.1993 to 27.08.1993; if this affidavit was to be true, there would be no justification for any incident on 03.08.1993; this, according to the learned counsel for the detenu, needed attention of the Detaining Authority and indicates that he has not seriously and carefully applied his mind to the facts on record; it was further contended that with reference to the papers supplied to the detenu that though the offence was committed on 03.08.1993, the First Information Report in relation to that offence was sent to the Magistrate on 03.07.1993; it was contended that, that was a major discrepancy clearly indicating non-application of mind; further there was a discrepancy relating to the jail in which the detenu was confined and therefore it was contended that there was total non application of mind on the part of the Detaining Authority and the Detaining Authority has not been cautious and careful in his approach in passing the detention order. The Division Bench, after considering the aforesaid discrepancies came to the conclusion that these discrepancies are sufficient to infer that the Detaining Authority has not taken any interest in the matter and signed the impugned order on the dotted line. The Division Bench has further held as follows:- "5. ... The minimum that we would expect from the Detaining Authority is to pass the order in a manner so as to indicate that he has applied his mind to the facts and circumstance of the case and recorded his satisfaction as contained therein. The Division Bench has further held as follows:- "5. ... The minimum that we would expect from the Detaining Authority is to pass the order in a manner so as to indicate that he has applied his mind to the facts and circumstance of the case and recorded his satisfaction as contained therein. This approach is a careful and cautious approach to be adopted in the context of Article 22 (5) of the Constitution of India and the provisions of Tamil Nadu Act 14 of 1982. It must be regretted that the Detaining Authority, in the present case, has not been as careful and cautious as expected of him and has adopted a casual and careless approach in dealing with a matter involving constitutionally guaranteed liberty of a citizen. We are therefore, satisfied that it is a fit case for issue of a writ of Habeas Corpus to quash the impugned order of detention." 11. In the decision reported in 1994 CRI.L.J.365 (referred to supra) a Division Bench of the Gujarat High Court had an occasion to consider a similar contention, namely, " (1) That despite the fact that though the Detaining Authority himself by his own duly signed committal order, dated 26-8-1992, had directed the detenu to be detained at the District Jail, Bhuj at Kachchh, still however, surprisingly enough in the first three lines of even dated Grounds of Detention, he informed the detenu to make representation through the Superintendent, Sub-Jail, Bharuch? This patent infirmity on face of it clearly demonstrates the casual and mechanical exercise of powers by just blindly signing the grounds of detention, the detention order and the committal order, which indeed in turn adversely reflects upon the genuineness of the subjective satisfaction of the Detaining Authority so arrived at while passing the detention order, which incidentally and sufficiently enough vitiates the subjective satisfaction rendering the detention of the detenu illegal and unconstitutional." and after considering the said contention, the Division Bench has held as follows:- "5. The fact remains that while signing the grounds of detention, detention order and the committal order, the Detaining Authority apparently has not exhibited his personal awareness taking unavoidable, absolute and much needed requisite care to see as to what has been stated in first three lines of para 6 of the grounds of detention and committal order. The fact remains that while signing the grounds of detention, detention order and the committal order, the Detaining Authority apparently has not exhibited his personal awareness taking unavoidable, absolute and much needed requisite care to see as to what has been stated in first three lines of para 6 of the grounds of detention and committal order. This inference is manifestly unavoidable because had indeed the papers been personally and carefully perused, the above patent inconsistencies would not have crept in, as the same could have been immediately detected and avoided, Rather to be more exact, the said inconsistencies would not have crept in at all. This situation in a way clearly demonstrates the total remissness on the part of the Detaining Authority in mechanically and casually exercising the extraordinary powers of the preventive detention, sadly reflecting upon the very genuineness and credibility of the subjective satisfaction and the orders passed pursuant to the same. ......... Unless the material on the basis of which Order is passed reflects the total application of mind and awareness of the Detaining Authority, indicative enough of personally and carefully considered the entire material placed before him, coupled with further imperative care to be taken regarding the statutory and constitutional procedural safe-guards, the same is liable to be quashed and set-aside." 12. But countering the said submission of the learned counsel for the petitioner, it is contended by the learned Additional Public Prosecutor that errors pointed out by the learned counsel for the petitioner in the English version of the grounds of detention are not vital errors, which will affect the subjective satisfaction, but are only minor errors and when admittedly the said errors found in the English version of the grounds of detention are not found in the Tamil version of the grounds of detention it will not vitiate the order of detention. In support of the said contention, the learned counsel based reliance on the two decisions referred to supra. 13. A Division Bench of this Court, by the order dated 05.08.2003, rendered in HCP No.2330 of 2002 (referred to supra), in paragraph 2, has narrated the grounds of detention of that case, which reads as follows:- "2. .... In support of the said contention, the learned counsel based reliance on the two decisions referred to supra. 13. A Division Bench of this Court, by the order dated 05.08.2003, rendered in HCP No.2330 of 2002 (referred to supra), in paragraph 2, has narrated the grounds of detention of that case, which reads as follows:- "2. .... The offence under Sections 307, 395, 397, 419 and 506 (2) I.P.C. Relate to attempt to murder, dacoity, robbery and criminal intimidation as such punishable under chapters 16, 17 and 22 of the said Code. Hence, I am satisfied that Tr.Soundar @ Soundararajan is habitually committing crimes and has acted in a manner prejudicial to the maintenance of public order and as such punishable under Section 2 (f) of the Tamil Nadu Act 14 of 1982. By committing the above described grave crime in the public, in a busy residential cum business area, in the busy evening time, in the heart of Chennai City has created an alarm and a feeling of insecurity in the minds of the people of the area and thereby acted in a manner prejudicial to the maintenance of public order." andit was contended on behalf of the detenu that there was total non application of mind on the part of the Detaining Authority. While considering such a contention, the Division Bench has held as follows:- "3. The order of detention in the tamil language was also served on the detenu and in that order the reference to Section 2 (f) is preceded by the statement that the detenu is a "Goonda" as defined in under Section 2 (f). Counsel contends that the discrepancy in the two version is sufficient to establish the non application of mind on the part of the detaining authority and, therefore, the detention order should be held to be invalid. 4. It is not in dispute that what is said in tamil is correct. The fact that in the english version while referring to "Goonda" under Section 2 (f) instead of stating 'as defined under that section' it has been stated that 'as such punishable under Section 2(f) of the Tamil Nadu Act 14 of 1982'. This mistake is not of such character to warrant an inference that there has been non application of mind on the part of the detaining authority. This mistake is not of such character to warrant an inference that there has been non application of mind on the part of the detaining authority. In this State, tamil is the official language of the State and it is submitted by the prosecutor that the orders of detention are drawn up in both the language viz. English as also in tamil. When the tamil version correctly sets out the content of the order, tamil being the language known to the detenu, the fact that the English version has a minor error while referring to the statutory provision, would not be sufficient to warrant the inference of non application of mind on the part of the detaining authority. 5. It is not every minor error in the order that would justify the inference of non application of mind. Venial mistakes and trivial errors, typographical and clerical mistakes which do not impinge on the substance of the matter as also the minor translation errors which do not affect the substance cannot be regarded as constituted sufficient basis to support an inference of non application of mind on the part of the detaining authority to the material which he was required to consider before forming his subjective satisfaction regarding the need for detention." 14. Another Division Bench of this Court, in its order, dated 18.01.2006, rendered in HCP No.851 of 2005 (referred to supra) has followed the aforesaid decision while rejecting the contention that the discrepancies in the crime numbers mentioned in the grounds of detention would indicate non application of mind on the part of the Detaining Authority and the same would vitiate the order of detention and has ultimately held as follows:- "7. Coming to defective translation, we verified the documents, wherein, according to the petitioner, certain words / phrases were not correctly translated. We are satisfied that there is no major error in the translation, which would justify the inference of non application of mind. It is useful to refer that in HCP.No.2330 of 2002 dated 05.08.2003 (Sudha vs. Secretary to Government and another), a Division Bench of this Court considering certain discrepancies in the translation copies supplied to the detenu held that, "5. It is not every minor error in the order that would justify the inference of non application of mind. It is useful to refer that in HCP.No.2330 of 2002 dated 05.08.2003 (Sudha vs. Secretary to Government and another), a Division Bench of this Court considering certain discrepancies in the translation copies supplied to the detenu held that, "5. It is not every minor error in the order that would justify the inference of non application of mind. Venial mistakes and trivial errors, typographical and clerical mistakes which do not impinge on the substance of the matter as also the minor translation errors which do not affect the substance cannot be regarded as constituted sufficient basis to support an inference of non application of mind on the part of the detaining authority to the material which he was required to consider before forming his subjective satisfaction regarding the need for detention." 15. At the outset, it has to be pointed out that the said two decisions relied upon by the learned Additional Public Prosecutor are binding on us. Whereas, the Division Bench decision of the Gujarat High Court reported in 1994 CRI.L.J. 365 (referred to supra) is not binding on us. However, we would like to point out that in the decision rendered by the Gujarat High Court, the error committed by the Detaining Authority was that while the Detaining Authority had directed the detenu to be detained at the District Jail, Bhuj at Kachchh, still however, in the grounds of detention, the Detaining Authority informed the detenu to make representation through the Superintendent, Sub-Jail, Bharuch. This error was considered as a material error, which according to the Division Bench, adversely reflected upon the genuineness of the subjective satisfaction of the Detaining Authority so arrived at, while passing the order of detention. 16. Under the relevant provisions of the detention laws, it is incumbent upon the Detaining Authority to inform the detenu about his right to make a representation against the order of detention and it should be specifically stated in the grounds of detention as to whom he should make such a representation. 16. Under the relevant provisions of the detention laws, it is incumbent upon the Detaining Authority to inform the detenu about his right to make a representation against the order of detention and it should be specifically stated in the grounds of detention as to whom he should make such a representation. In that case, it was informed to the detenu that while the Detaining Authority had directed the detenu to be detained at District Jail, Bhuj at Kachchh, the Detaining Authority had informed the detenu that the detenu can make representation to the Superintendent, Sub-Jail, Bharuch, which is a material mistake, which had affected the right of the detenu to make an effective representation and therefore it was a material mistake and in that context only, the Gujarat High Court has held that the order of detention had been passed in a very casual manner without proper application of mind to the materials placed before it and therefore, the subjective satisfaction is distinguishable on facts also. 17. In the decision reported in 1994-2-L.W. (Crl.) 552 (referred to supra), relied upon by the learned counsel for the petitioner, as pointed out above, the error was committed by the Detaining Authority relating to the very date of arrest. In that case it was contended that the detenu was arrested on 03.08.1993, whereas in the affidavit filed by the Inspector before the Detaining Authority it was stated that the detenu was in detention from 18.06.1993 to 27.08.1993 and therefore, the Division Bench observed that there would be no justification for any incident on 03.08.1993. Further, the First Information Report, was stated to have been sent to the Judicial Magistrate on 03.07.1993. Further, there was a contradiction as to in which jail the detenu was kept. While actually in that case the detenu was kept in Sub Jail, Sivaganga, the detention order mentions that he was in Central Prison, Madurai and while considering the aforesaid contradictions, the Division Bench came to the aforesaid conclusion. The said contradictions pointed out by the Division Bench in the decision are vital and material contradictions affecting the very subjective satisfaction of the Detaining Authority. 18. We are of the considered view that the said decisions are not applicable to the facts of this case as in this case the aforesaid material contradictions are not found. The said contradictions pointed out by the Division Bench in the decision are vital and material contradictions affecting the very subjective satisfaction of the Detaining Authority. 18. We are of the considered view that the said decisions are not applicable to the facts of this case as in this case the aforesaid material contradictions are not found. The contradiction pointed out, in this case, is only relating to alias name of the detenu and no such error is found in the Tamil version of the grounds of detention and therefore, it cannot be said that the error is a material error or it would amount to non application of mind on the part of the Detaining Authority or the detention order has been passed in a very casual manner. As held in HCP No.2330 of 2002 by the Division Bench decision, referred to supra, it is not that every minor error in the order that would justify the inference of non application of mind. Venial mistakes or trivial errors, typographical and clerical mistakes which do not impinge on the substance of the matter as also the minor translation errors which do not affect the substance cannot be regarded as constituting sufficient basis to support an inference of non application of mind on the part of the Detaining Authority to the material which he was required to consider before forming his subjective satisfaction regarding the need for detention. 19. In our considered view, as rightly contended by the learned Additional Public Prosecutor, there is no mistaken identity of the detenu. The said errors pointed out by the learned counsel for the petitioner cannot be considered to be a material error which will affect the subjective satisfaction arrived at by the Detaining Authority. We do not find any casualness in the passing of the order of detention. Moreover, the Tamil version of the grounds of detention correctly states the name of the detenu in all the places and therefore, the contentions of the learned counsel for the petitioner cannot be countenanced. 20. We do not find any reason, whatsoever, to interfere with the order of detention passed by the Detaining Authority and accordingly, the above Habeas Corpus Petition fails and the same is dismissed.