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2014 DIGILAW 1251 (MAD)

Devi v. Government of Tamil Nadu

2014-06-11

G.CHOCKALINGAM, V.DHANAPALAN

body2014
Judgment : V. Dhanapalan, J. 1. As the issue involved in all the above Petitions is one and the same, they are taken up for disposal by a common order. 2. In all these cases, the detenus have been branded as "Goondas" as contemplated under Tamil Nadu Act 14 of 1982 and detained under various orders of the Commissioner of Police, Chennai. As the issue involved in all the above Petitions is one and the same, they are taken up for disposal by a common order. 2. In all these cases, the detenus have been branded as "Goondas" as contemplated under Tamil Nadu Act 14 of 1982 and detained under various orders of the Commissioner of Police, Chennai. The detenus came to adverse notice in the following cases:- H.C.P. No. Police Station & Crime No. Sections of Law 2377 of 2013 (i)E-1 Mylapore Police Station, Crime No. 550/2012(ii)J-6 Thiruvanmiyur Police Station, Crime No.1183/2013 (iii)E-5 Foreshore Estate Police Station Crime No.938/2013 454 and 380 IPC454 and 380 IPC 454 and 380 IPC 2475 of 2013 (i)Kannankurichi Police Station, Crime No. 305/2011(ii) Tiruchengode Police Station, Crime No.679/2012 392 r/w 392, 341, 427,506(ii) IPC448, 302 IPC 2485 of 2013 (i)S-7 Madipakkam Police Station, Crime No. 1900/2013 (ii)S-10 Pallikaranai Police Station, Crime No.1591/2013 (iii)S-10 Pallikaranai Police Station Crime No.1609/2013 392,506(ii) IPC392 IPC 379 IPC 2509 of 2013 (i)M-1 Madhavaram Police Station, Crime No. 125/2008(ii) M-5 Ennore Police Station, Crime No.1880/2013 (iii)M-5 Ennore Police Station Crime No.1890/2013 (iv)M-5 Ennore Police Station Crime No.1914/2013 (v)M-7 Manali New Town Police Station Crime No.795/2013 (vi)M-7 Manali New Town Police Station Crime No.802/2013 (vii)M-8 Sathangadu Police Station Crime No.1542/2013 (viii)M-8 Sathangadu Police Station Crime No.1560/2013 (ix)M-6 Manali Police Station Crime No.1100/2013 (x)M-6 Manali Police Station Crime No.1214/2013 406 406 IPC379 IPC 392 IPC 341, 294(b), 336, 427, 392 r/w 397 & 506(ii) IPC 392 IPC 341, 294(b), 336, 427, 392, 506(ii) r/w 397 IPC 379 IPC 379 IPC 379 IPC 379 IPC 2514 of 2013 (i)M-7 Manali New Town Police Station, Crime No. 430/2011(ii)M-6 Manali Police Station, Crime No.997/2013 (iii)M-5 Ennore Police Station Crime No.1699/2013 (iv)M-6 Manali Police Station Crime No.1146/2013 (v)M-7 Manali New Town Police Station Crime No.728/2013 302 IPC @ 147, 148 and 302 IPC341, 294 (b), 392 r/w 397 & 506 (ii) IPC 341, 294(b), 384, 506 (ii) IPC 294(b), 384, 324, 307 & 506(ii) IPC 294(b), 384, 324, 307 & 506(ii) IPC 2643 of 2013 (i)M-5 Ennore Police Station, Crime No. 357/2011(ii)M-5 Ennore Police Station, Crime No.628/2013 (iii)M-5 Ennore Police Station Crime No.2070/2013 (iv)M-6 Manali Police Station Crime No.1353/2013 147, 148, 341, 302 IPC75 City Police Act and 7(1)(a) of CLA Act 341, 294(b), 384, 506 (ii) IPC 341, 294(b), 506(ii) IPC 2749 of 2013 (i)T-5 Thiruverkadu Police Station Crime No.398/2013(ii) V-5 Thirumangalam Police Station Crime No.561/2013 (iii)V-3 JJ Nagar Police Station Crime No.564/2013 (iv)T-16 Nasarathpet Police Station Crime No.641/2013 379 IPC457, 380 IPC 294(b), 336, 323, 392, 506(ii) IPC 392 IPC The ground cases alleged against the detenus are as follows: H.C.P.No. Crime No. Sections of Law 2377 of 2013 E5 Foreshore Estate Police Station Cr. No.993/2013 341, 336, 294(b), 427, 392, 397 and 506(ii) IPC 2475 of 2013 Hasthampatty Police Station Cr. No.367/2013 294(b), 506(ii), 353 IPC r/w 3 of TNPPDL Act 2485 of 2013 S-10 Pallikaranai Police Station Cr.No.1622/2013 341, 294(b), 323, 392, 336, 397, 506(ii) IPC 2509 of 2013 M6 Manali Police Station Cr.No.1240/2013 341, 294(b), 336, 427, 392 r/w 397 and 506(ii) IPC 2514 of 2013 M-7 Manali New Town Police Station Cr.No.744/2013 341, 294(b), 336, 392, 506(ii) r/w 397 IPC 2643 of 2013 M6 Manali Police Station Cr.No.1361/2013 341, 294(b), 336, 427, 392 r/w 397 and 506(ii) IPC 2749 of 2013 T-5 Thiruverkadu Police Station Cr.No.1592/2013 341, 294(b), 336, 427, 392 and 506(ii) IPC Aggrieved by the orders of detention, the present petitions have been filed. 3. Heard the learned counsel for the respective petitioner and the learned Additional Public Prosecutor appearing for the respondents. 4. Mr.R.Sankarasubbu, learned counsel appearing for the petitioner in H.C.P.Nos.2377 and 2475 of 2013 would contend that as per Article 22(1) of the Constitution of India, as soon as the arrest is made, it must be communicated to the relatives of the person arrested. If such constitutional requirement is not satisfied, then the detention order clamped on the detenu is liable to be vitiated on the ground of violation of Article 22(1). Pointing to Page No.51 of the booklet in H.C.P.No.2377 of 2013, learned counsel vehemently contended that communication in respect of arrest of the detenu was given only to the Superintendent of Central Prison, Puzhal, Chennai and therefore it will not serve the purpose for which the arrest communication is to be made. He would also contend that as per the dictum laid down by the Hon'ble Supreme Court in A.K.Roy Vs. Union of India and another ( AIR 1982 SC 710 (1), there must be a communication to the relatives of the person arrested to enable them to take steps to take the arrested person on bail and if it is communicated to the prison authorities, the entire object will be defeated and the constitutional mandate will not be achieved. 5. In support of his case, Mr.R.Sankarasubbu, learned counsel has relied on the following decisions: (i) In A.K.Roy Vs. Union of India and another ( AIR 1982 SC 710 (1)), the Hon'ble Supreme Court has held as under: “75. 5. In support of his case, Mr.R.Sankarasubbu, learned counsel has relied on the following decisions: (i) In A.K.Roy Vs. Union of India and another ( AIR 1982 SC 710 (1)), the Hon'ble Supreme Court has held as under: “75. Since Section 5 of the Act provides for, as shown by its marginal note, the power to regulate the place and conditions of detention, there is one more observation which we would like to make and which we consider as of great importance in matters of preventive detention. In order that the procedure attendant upon detentions should conform to the mandate of Art.21 in the matter of fairness, justness and reasonableness, we consider it imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody. Intimation must also be given as to the place of detention including the place where the detenu is transferred from time to time. This Court has stated time and again that the person who is taken in custody does not forfeit, by reason of his arrest, all and every one of his fundamental rights. It is, therefore, necessary to treat the detenu consistently with human dignity and civilized norms of behaviour.” (ii) In D.K.Basu Vs. State of West Bengal (1997) 1 SCC 416 ), the Hon'ble Supreme Court has held as under: “35.We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1)...... (2)That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.” (iii) In Seematti Vs. Secretary, Govt. of Tamil Nadu, Home Department and Others (2005 Cri.L.J. 738), a Division Bench of this Court has held as under: “12. Coming to the last contention, there is no dispute that the detenu was arrested on 16.01.2004 and produced before the Magistrate on 17.01.2004. It is also not in dispute that as per the decision of the Apex Court in the case of D.K.Basu V. State of West Bengal reported in 1997(1)SCC 416: 1997 Cri LJ 743, the details regarding arrest must be informed to the next friend or relative of the arrestee telegraphically within 8 to 12 hours after the arrest. In para 35 of the said judgment their Lordships have issued 11 directions to be followed in all cases of arrest of detention till legal provisions are made in that behalf as preventive measures. Among the 11 clauses, Cl. (4) is relevant. “4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.“ Admittedly, in our case, arrest was made at Madras and wife of the arrestee is residing at Ramanathapuram District. In such a circumstance, the time, place of arrest, venue and custody of the arrestee must be informed to the next friend or relative when he or she lives outside District/Town through Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. In such a circumstance, the time, place of arrest, venue and custody of the arrestee must be informed to the next friend or relative when he or she lives outside District/Town through Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. In the grounds of detention, particularly in para 1 (xiii) it is stated that phonogram was sent by DRI, Chennai on 17.01.2004 to the father of the detenu at Thondi, Ramanathapuram District intimating his arrest and remand. It further shows that another phonogram was also sent to Manjura Beevi – wife of the detenu, residing at Thondi, intimating his arrest and release on bail. The petitioner has specifically denied the intimation of arrest through phonogram on 17.01.2004. According to her, intimation was sent only on 19.01.2004 through telegram and no phonogram was sent on 17.01.2004, as claimed. Though the learned Government Advocate denied the said aspect, the letter of the Secretary, Public (Law and Order) Department dated 02.03.2004 addressed to the detenu shows that details regarding arrest was intimated to his father through telegram only on 19.01.2004 (vide para 3 of the said letter). This information strengthens the claim of the petitioner that intimation regarding arrest was formally intimated only on 19.01.2004 through telegram. The process adopted and followed by the authorities is contrary to the mandate of Supreme Court in D.K.Basu's (cited supra). On this ground also the order of detention is liable to be set aside......“ (iv) In Shanmugam and another Vs. State of Tamil Nadu and another (2013 4 MLJ (Crl) 1), this Court has held as under: “25. Before considering the above request, it is mandatory to take note of what is the prevailing system existing in our country. As per the memo filed by the learned Additional Solicitor General, in the place of telegraphic services which was discontinued with effect from 15.07.2013, an advanced system, namely “e post” has been introduced by the Department of Posts, Government of India with effect from 30.01.2004. In the light of the above, we suggest the Government of Tamil Nadu/respondents herein to consider implementation of the following guidelines in order to streamline the procedure for effective communication of intimation of arrest. In the light of the above, we suggest the Government of Tamil Nadu/respondents herein to consider implementation of the following guidelines in order to streamline the procedure for effective communication of intimation of arrest. The officer effecting arrest of a person shall intimate the same to his/her relatives, friends or the person authorised by the detenu through e post, which has come into force from 30.01.2004 and the officer concerned shall follow the e-post system in the manner prescribed. In case of intimation through cell phone/land line, we would suggest the Government of Tamil Nadu that the Secretary to the Government shall invite the officials of the Bharat Sanchar Nigam Limited (BSNL) for a consultation to device a mechanism to frame an effective method of communication, including receipt of acknowledgment for the proof of service of communication through BSNL. On reaching such formulation, the respondents shall follow the same for effecting communication of intimation of arrest.” (v) In an unreported decision in H.C.P.No.2125 of 2013 (Desam Vs. The Secretary to the Government and another), this Court has held as under: “7. When there was a surrender in connection with the case in one crime number and a formal arrest at the time of surrender in connection with the case in another crime number, it is always required under the law that the investigating authority shall communicate the formal arrest to the relatives of the detenu for taking steps by them. On verification of the booklet, the learned Additional Public Prosecutor would fairly submit that there is no such communication of formal arrest. Therefore, the right guaranteed under Article 22(1) of the Constitution of India has been violated by the sponsoring authority. Non-communication of the formal arrest, which was also relied on by the detaining authority, would definitely vitiate the order of detention and hence the same is liable to be quashed.” 6. Controverting the above submissions, Mr.P.Govindarajan, learned Additional Public Prosecutor would submit that in the cases on hand, since the detenus were in prison, the arrest intimation was served through the Superintendent of the Prison and therefore, there is no violation of the constitutional requirement and that will serve the purpose and thereby the detenu will know about his arrest. Controverting the above submissions, Mr.P.Govindarajan, learned Additional Public Prosecutor would submit that in the cases on hand, since the detenus were in prison, the arrest intimation was served through the Superintendent of the Prison and therefore, there is no violation of the constitutional requirement and that will serve the purpose and thereby the detenu will know about his arrest. He would further submit that preventive detentions are meant to keep the public order in control and to prevent any indulgence of activities of any person prejudicial to the interest of maintenance of public order and public health and mere intimation of arrest to the prison authorities will not defeat the object and reasons for preventive detention and therefore this could not be held against the said authorities as they have complied with all the obligations under the Act. In support of his stand, he has relied on a decision reported in 2000 (1) L.W. (Crl.) 443 (Vadivel Vs. The State of Tamil Nadu etc., and another), wherein, this Court has held as under: “10. Learned counsel for the petitioner further relied upon a decision of the Apex Court reported in 1997 SCC (Crl) 92 (D.K.Basu V. State of West Bengal) and contended that the remand of the detenu was improper and that there is no valid remand since the guidelines indicated in the said decision have not been complied with by the concerned Magistrate. The question whether the remand properly effected and in accordance with law is a matter to be agitated in a different proceeding and before a different Forum. If really there was any failure to comply with the provisions of law with regard to remand of an accused, it is always open to the accused to question the same by initiating suitable proceedings. 11. In the case on hand, we are only concerned with the validity of a detention order and whether the constitutional safeguards have been complied with in this matter. The detaining authority has to be satisfied only about the detenu being in remand. He has to, on the materials placed before him, arrive at a subjective satisfaction, about the conduct of the detenu as to whether his activities are such as to affect the public order and health and if it is so, whether it is necessary to detain him, invoking the provisions of Act 14 of 1982. He has to, on the materials placed before him, arrive at a subjective satisfaction, about the conduct of the detenu as to whether his activities are such as to affect the public order and health and if it is so, whether it is necessary to detain him, invoking the provisions of Act 14 of 1982. It is not for the detaining authority to find out whether the remand of the detenu by the concerned court was a proper exercise of jurisdiction or not. Moreover, a reading of this judgment would show that the Supreme Court laid down the guidelines to be followed by the police officers, whenever they effect arrest. In para 5, the Apex Court has stated that it is therefore, appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf, as preventive measures. Their lordships of the Apex Court has set out about 11 guidelines which all relate to only police officers and nothing is mentioned in these 11 guidelines about the duties or the procedure to be followed by the Magistrate in such cases. Therefore, the decision relied upon by the learned counsel for the petitioner, to put it mildly, has no application to the facts of this case.” 7. We have considered the above submissions of the learned counsel on either side and perused the material documents available on record. 8. Article 22(1) of the Constitution of India reads as under: 22. Protection against arrest and detention in certain cases. —(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Clause 5 of Article 22of the Constitution of India reads thus: (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. 9. 9. A reading of the above would clearly indicate that in a matter of preventive detention, there must be compliance of constitutional mandate and every citizen has the right to defend his case and if any person is detained for preventive nature and if there was arrest in the cases in which he is involved, the intimation of arrest has to be communicated to him at the earliest. If the arrest communication has not been done as per the constitutional requirement, there will be denial of opportunity to him to take all steps to defend himself in the cases where he has been implicated. In a case where there was a difficulty in taking steps to retrieve the said person from the clutches of law, the Hon'ble Supreme Court has examined that position and has laid down a law that in order to achieve the above object of the constitutional requirement, the relatives, friends and kith and kin of the arrested person are to be intimated immediately and such a requirement would facilitate the detenu, who has been detained under the preventive detention laws, to effectively make representation for redressal of his grievance at the earliest under Article 22(5) of The Constitution of India. In preventive detention cases, it is always obligatory on the part of the sponsoring authority as well as the detaining authority to comply with all the constitutional requirements without any lapses. 10. Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21 provides “no person shall be deprived of his life or personal liberty except according to procedure established by law.'' Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression ''life or personal liberty'' has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Section 50 Cr.P.C. enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. Section 50 Cr.P.C. enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. As laid down in A.K.Roy's case andD.K.Basu's case, it is imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody. Intimation must also be given as to the place of detention including the place where the detenu is transferred from time to time. 11. On verification of the booklets in all these cases, particularly the arrest memos would reveal that the communications have been sent either to the Superintendents or Jailors of the Prisons. The sponsoring authorities have failed to comply with the constitutional requirements. Therefore, we are of the considered opinion that there is a violation of constitutional requirement. If such orders are passed by the detaining authorities, based on such an information, which is not supplied and communicated either to the detenu or the relatives or the parties, the purpose of constitutional requirement will be defeated and the provisions of the Act contemplating the manner and the procedure under which it should be done, has also to be followed by them. Such a failure would vitiate the entire process and therefore, the impugned orders of detention are unsustainable in law. Accordingly, the impugned orders of detention are set aside. 12. Accordingly, the impugned detention orders, detaining the detenus, namely, (i) Anand, S/o.Dhanush, (ii) Musthapa, S/o.Shajahan, (iii) Elumalai, S/o.Mannangatti,(iv) Vijayababu, S/o.Bakthavachalam, (v) Udaya @ Udayakumar, S/o.Prabhakaran, (vi) Mani @ Manikandan, S/o.Mohan and (vii) Suresh, S/o.Anandan, respectively, are quashed and the Habeas Corpus Petitions are allowed. The above named detenus, who are detained in Central Prison, Puzhal, Chennai and Central Prison, Salem, respectively, are ordered to be set at liberty forthwith, unless their custody is required in connection with any other case. 13. However, in view of serious offences involved in this matter, it is open to the prosecution to effectively contest the matter before the Regular Court, uninfluenced by the above order. 13. However, in view of serious offences involved in this matter, it is open to the prosecution to effectively contest the matter before the Regular Court, uninfluenced by the above order. It is also made clear that this order shall not confer any right or advantage whatsoever to the detenus to claim anything before the Regular Court.