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2016 DIGILAW 113 (MAD)

J. Belji v. Government of Tamil Nadu

2016-01-08

P.R.SHIVAKUMAR, V.S.RAVI

body2016
ORDER : P.R. SHIVAKUMAR, J. The petitioner is the wife of the detenu, namely Jagadeesh S/o.Ganesh. The detenu has been detained by the second respondent by his order in P.D.No.36/2015, dated 11.07.2015, holding him to be a "Goonda", as contemplated under Section 2 (f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No.227 of 2015 registered on the file of Thanjavur Town East Police Station for offences punishable under Sections 294(b), 342, 392 and 506(ii) of the Indian Penal Code read with Section 3(1) of Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992 and the following eight adverse cases: “(i) Crime No.208 of 2015 registered on the file of Thiruppur City North Police Station for an offence punishable under Section 392 of the Indian Penal Code; (ii) Crime No.63 of 2015 registered on the file of Thanjavur Town South Police Station for an offence punishable under Section 392 of the Indian Penal Code; (iii) Crime No.66 of 2015 registered on the file of Thanjavur Medical College Hospital Police Station for an offence punishable under Section 392 of the Indian Penal Code; (iv) Crime No.95 of 2015 registered on the file of Mannachanallur Police Station for an offence punishable under Section 392 of the Indian Penal Code; (v) Crime No.90 of 2015 registered on the file of Thanjavur Medical College Hospital Police Station for an offence punishable under Section 392 of the Indian Penal Code; (vi) Crime No.118 of 2015 registered on the file of Thanjavur Town South Police Station for an offence punishable under Section 392 of the Indian Penal Code; (vii) Crime No.269 of 2015 registered on the file of Thanjavur Town West Police Station for an offence punishable under Section 392 of the Indian Penal Code; and (viii) Crime No.226 of 2015 registered on the file of Thanjavur Town East Police Station for an offence punishable under Section 392 of the Indian Penal Code.” 2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of "Goonda" and that his presence at large would be prejudicial to the maintenance of public order and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition. 3. The said order is challenged in the present Habeas Corpus Petition. 3. Though the order of detention is sought to be assailed on several grounds, the learned counsel for the petitioner mainly relies on the contention that illegible copy of the remand order in the fourth adverse case was furnished to the detenu resulting in denial of reasonable opportunity to make an effective representation at an early date and that non-application of mind on the part of the detaining authority, to the materials placed before him, is obvious from the copy of the remand report containing the remand extension order dated 25.06.2015 in which the portion containing the order made by the Judicial Magistrate is not legible. It is his further contention that the same will be obvious from the in-built discrepancy found in the Tamil translation of the remand extension order dated 25.06.2015, which is found at page No.100 and the very fact that the sponsoring authority who prepared the Tamil translation and signed it as true copy, referred to a date anterior to the date of the copy of the remand extension order, as the date upto which the remand was extended, will fortify the contention of the petitioner that the remand extension order dated 25.06.2015 was not legible. 4. The submissions made by the learned Additional Public Prosecutor in reply to the above said contentions raised by the learned counsel for the petitioner are also heard. 5. As rightly contended by the learned counsel for the petitioner, the remand extension order dated 25.06.2015 in the fourth adverse case in Crime No.95/2015 is not legible. Of course, when xerox copies are taken, of the remand extension report containing the handwritten order of the Judicial Magistrate extending the remand, which order could have been written in green ink, care should have been taken to ensure that the said portion containing the order is legible in the copy. Otherwise, the sponsoring authority could have prepared a typed copy and signed it as true copy. The Tamil translation of the remand extension order in the fourth adverse case is found at page No.100 of the booklet. When it is compared with the illegible portion in the copy of the document available at page No.99 of the booklet, it will show that the sponsoring authority himself was not able to read the order portion in page No.99. When it is compared with the illegible portion in the copy of the document available at page No.99 of the booklet, it will show that the sponsoring authority himself was not able to read the order portion in page No.99. The same is the reason why the date of remand extension order has been noted as 25.06.2015, whereas, the date upto which the remand extension was made came to be noted as 08.04.2015 (an anterior date). Hence on the ground of denial of reasonable opportunity to make an effective representation and effectively challenge the order of detention by supplying illegible copy of the remand extension order dated 25.06.2015 in the fourth adverse case, the order of detention stands vitiated. 6. The Tamil translation of the remand extension order dated 25.06.2015 which is found at page No.100 of the booklet, as pointed out, contains an in-built discrepancy insofar as the date of remand extension order has been noted as 25.06.2015 and the date upto which the remand came to be extended has been noted as 08.04.2015 (about 2½ months prior to the date of order of the detention). It is an obvious mistake which, as rightly contended by the learned counsel for the petitioner, escaped the attention of the detaining authority. Had the detaining authority applied his mind to the said document, he would not have failed to call for a clarification regarding the said discrepancy. The failure to seek such clarification regarding the obvious discrepancy, will show non-application of mind and mechanical clamping of the order of detention. On that ground also, the order of detention is vitiated. On both grounds, the order of detention is liable to be set aside. 7. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 11.07.2015, made in P.D.No.36/2015, by the second respondent, the District Collector and District Magistrate, Thanjavur, Thanjavur District and directs the release of the detenu by name Jagadeesh S/o.Ganesh aged about 33 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.