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TMI Blog2016 (8) TMI 1541X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority, to detain the detenus in these five cases, were prepared at the Office of the Commissioner of Police and attested by none other than the Commissioner of Police with an endorsement that it was signed in his immediate presence. Thereafter, within two days, the very same Commissioner of Police passed orders detaining the detenus involved in these Habeas Corpus Petitions. The course of conduct and the background facts clearly indicate the predetermination on the part of the Detaining Authority to detain the detenus, who were against the then local M.L.A., and Minister, who is also a Minister in the present Government in Tamil Nadu. In short, the Commissioner of Police, who was instrumental in sponsoring detention, himself passed the orders of detention. 2. The facts are common in all these Habeas Corpus Petitions. The detenus were all detained on account of their alleged commission of offences on 09 January, 2016 and 10 January, 2016. Therefore, all these five Habeas Corpus Petitions were taken up for consideration together and they are being disposed of by this common order. FACTS IN NUTSHELL: H.C.P.(MD)No.556 of 2016: 3. The Commissioner of Police, Madurai City, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s scheduled to be held on 10 January, 2016. The police searched the leather bag and two petrol bombs and a country made bomb were seized. The petitioner was arrested in connection with the said case in Crime No.61 of 2016 and on the basis of his confession, the other detenues were arrayed as accused. 7. The petitioner was produced before the learned Judicial Magistrate No.II, Madurai, through a PT warrant on 14 March, 2016, in Crime No.33 of 2016. He was remanded till 18 April, 2016. The petitioner was produced in Crime No.61 of 2016 before the learned Judicial Magistrate No.IV, Madurai and he was remanded till 18 April, 2016. The bail application filed by the petitioner was dismissed by the learned Judicial Magistrate No.IV, Madurai, on 17 March, 2016. Thereafter, he filed another bail application in Crl.M.P.No.1735 of 2016 and the same was also dismissed. The bail application filed before the learned Principal District and Sessions Judge, Madurai, thereafter, was pending as on the date of detention. 8. The Commissioner of Police passed the detention order on 18 April, 2016 branding the petitioner as a "Goonda". H.C.P.(MD)No.558 of 2016: 9. The petitioner was arrayed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate on 17 March, 2016. The bail applications filed on behalf of the detenu in Crl.M.P.Nos. 1543 and 1563 of 2016 were also dismissed on 29 April, 2016 and 04 May, 2016, respectively, by the learned Judicial Magistrate No.IV, Madurai. Thereafter, he filed another bail application before the learned Principal District Judge, Madurai, in Crl.M.P.No.120 of 2016 and the same was pending as on the date of detention. 15. The Commissioner of Police passed the order of detention on 18 May, 2016, branding the detenu as "Goonda" within the meaning of the Tamil Nadu Act 14 of 1982. H.C.P.(MD)No.688 of 2016: 16. The petitioner is the mother of the detenu, by name, Ajmalkhan, accused in Crime No.74 of 2016 on the file of C3 S.S.Colony Police Station. The detenu is also an accused in Crime No.61 of 2016 on the file of B6 Jaihindpuram Police Station. The detenu was arrayed as an accused in these two cases, on the strength of the confession statement given by Thiru.Pasumponpandian, petitioner in H.C.P.(MD)No.557 of 2016. 17. The detenu was remanded on 14 March, 2016 by the learned Judicial Magistrate No.V, Madurai. His remand period was subsequently extended upto 18 May, 2016. He was pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster, the detenus hurled bomb at the office of AIADMK located at Panagal Road. The detenus also made an attempt to disturb the peaceful conduct of the public meeting convened by the AIADMK party. The Commissioner explained the steps taken by him to detain the detenus under the provisions of Tamil Nadu Act 14 of 1982. SUBMISSIONS ON BEHALF OF PETITIONERS: 23. The learned Senior Counsel appearing on behalf of the petitioners in H.C.P.(MD)Nos.556 to 558 of 2016 and the learned counsel appearing on behalf of the petitioners in H.C.P.(MD)Nos.687 and 688 of 2016, contended that three cases referred to by the Commissioner of Police, were all concocted with a view to suppress the dissenting opinion formed against the local Minister. According to the learned Senior Counsel, the local people were opposed to the activities of the Minister and as such, he was determined to put his opponents behind the bar, so as to deny them right to take part in the election process. The learned Senior Counsel submitted that a perusal of the Detention Orders would make it clear that there was total non-application of mind. The involvement of the concerned detenus in a case registered on 10 January, 2016, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26. The learned Additional Advocate General justified the impugned orders passed by the Commissioner of Police. According to the learned Additional Advocate General, the delay is only three days. The delay is not abnormal. Since the representation was considered during the time of election and the Minister in-charge to look into the matter himself was a candidate, there was a delay of three days. The said delay cannot be characterized as abnormal or unexplained. The learned Additional Advocate General, further, contended that the detenus wanted an atmosphere to be created to make it appear as if the ruling party is not in a position to control law and order and as such, a new Government should be elected. It was contended that the Commissioner of Police considered all the documents and arrived at a subjective satisfaction that the activities of the detenus are prejudicial to the interest of the State and rightly detained them. 27. The learned Additional Advocate General placed reliance on the following judgments: (i) The judgment of the Supreme Court in M.Mohamed Sulthan v. JT. Secy. to Government of India [1991 SCC (Cri) 104], was cited to contend that length of the delay alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade a request to the Commissioner of Police, in his capacity as the Detaining Authority to detain the petitioner. However, very strangely, the affidavit of the sponsoring authority was attested by the very same Commissioner of Police, Madurai City, who was expected to consider the request independently and pass orders thereon in accordance with the Tamil Nadu Act 14 of 1982. 31. The affidavits of the sponsoring authority in the other Habeas Corpus Petitions were also attested by the Commissioner of Police, Madurai City, thereby giving an impression that it was prepared in his immediate presence at his office. THE ATTESTATION OF AFFIDAVITS OF THE SPONSORING AUTHORITY BY DETAINING AUTHORITY INDICATES PREDETERMINATION: 32. The sponsoring authority in these five cases submitted separate applications to the Commissioner of Police, Madurai City, to detain the concerned detenus under the Tamil Nadu Act 14 of 1982. The Commissioner, while attesting the affidavits of the sponsoring authority, made an endorsement that the deponent solemnly affirmed before him on the date indicated in the affidavit and signed in his presence. The seal of the Commissioner, Madurai City is found affixed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfied that there are sufficient grounds justifying preventive action against the person concerned. He should analyze the materials produced before him by the sponsoring authority and must arrive at a subjective satisfaction that in case the detenu is not detained, he would indulge in activities prejudicial to the maintenance of public order. 39. The Commissioner of Police was expected to consider the materials independently and in an unbiased manner without the intervention of the sponsoring authority. He is exercising a statutory function conferred on him by the statute. He is not acting as a police officer, but as an authority empowered to detain a person under Act 14 of 1982. Since the Commissioner of Police is the statutory authority to detain those who are likely to engage in acts prejudicial to maintenance of public order, he is not expected to take part in any of the preparatory works for detention. The Commissioner of Police should not be seen as a complainant or privy to the decision to make a request to detain a person. If it is demonstrated that the Commissioner of Police himself made the ground work to detain a person, and thereafter, passed the order of detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 17.05.2016. Even if 3 days holidays in between, including the date of polling on 16.05.2016, are excluded, still there is a delay of 3 days. This delay has not been explained at all. (B). The second representation was considered by the Under Secretary and Deputy Secretary on 14.06.2016 and the file was sent to the Minister forthwith. The Minister rejected the representation on 01.07.2016. There is a delay of 17 days between 14.06.2016 and 01.07.2016. In between there were 4 holidays. Even if those holidays are excluded, still there is a delay of 13 days in the disposal of the representation. There was no attempt made either by the Detaining Authority or by the Government to explain the undue delay in considering the representations submitted by the detenu. H.C.P.(MD)No.557 of 2016: 46(A). The representation dated 28.04.2016 was received by the Government on 02.05.2016. After obtaining the remarks, the Under Secretary and the Deputy Secretary considered the representation and offered their comments on 10.05.2016. The file was sent to the Minister for Electricity and Prohibition and Excise immediately. The Minister rejected the representation on 17.05.2016. There is a delay o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted on 07.06.2016. The Deputy Secretary to Government perused the file and offered his remarks on 08.06.2016. Thereafter, the file was dealt with by the Minister for Electricity, Prohibition and Excise on 29.06.2016. Between 08.06.2016 and 29.06.2016, there was a delay of 21 days. There were 6 holidays in between 08.06.2016 and 29.06.2016. Even after excluding the Holidays, there is a delay of 15 days in considering the representation by the Government. The rejection letter was prepared on 30.06.2016. There is noting on record to show as to when it was served on the detenu. (B). The second representation was considered by the Under Secretary and the Deputy Secretary on 15.06.2016. The file was sent to the Minister for Electricity, Prohibition and Excise. It was kept pending till 01.07.2016. The Minister rejected the representation on 01.07.2016. The rejection letter was sent to the detenu on 04.07.2016. However, nothing is stated as to when the rejection letter was served on the detenu. There were 4 holidays between 15.06.2016 and 01.07.2016. Even if holidays are excluded, still there is a delay of 12 days. This delay has not been properly explained either by the Detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng convened by AIADMK party on 10 January, 2016. The detenus are stated to be the members of AIADMK. They are adverse to the activities of Thiru.Sellur.K.Raju. The name of Thiru.Sellur.K.Raju, the Hon'ble Minister, is mentioned in so many places by the Detaining Authority. Though the concerned Under Secretary and Deputy Secretary forwarded the representations to the Minister, who is a member of the Cabinet along with Thiru.Sellur.K.Raju, it was kept pending by the Minister, without any reasonable cause. According to the petitioners, Thiru.Natham Viswanathan, the Minister for Electricity, who is also a close associate of Thiru.Sellur.K.Raju and hailing from Madurai Region, kept the representations pending deliberately. The proformas produced by the Government would clearly show that the Hon'ble Minister for Electricity kept the representations for days together without any justifiable reason. There was no attempt on the part of the Government to give reasons for the delay. The Detaining Authority also failed to explain the delay in considering the representations by the Hon'ble Minister. 55. The background facts very clearly show that the Minister for Electricity, who w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n those cases on bail, had no concern with the present case, such cases cannot be taken as the basis to arrive at a satisfaction that the detenu would be enlarged on bail at any time. The Supreme Court opined that merely because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case also the detenu would be released on bail. 60. In the subject cases, bail granted to the accused in Crime No.1273 of 2013 was taken as the basis to arrive at a satisfaction that the detenus are likely to be released on bail. The bail granted to the accused Balamurugan has nothing to do with the cases registered against the detenus. Thiru.Balamurugan is not a co-accused. The Detaining Authority considered irrelevant materials to arrive at a satisfaction that there is a likelihood of the detenus being released on bail. The impugned Detention Orders are liable to be quashed on this ground also. NON-APPLICATION OF MIND: 61. The Detaining Authority referred to the confession statement given by Thiru.Pausmponpandian and implication of other detenus on the basis of his statement. The Detaining Authority referred to the confession statements of other det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed...................." 65. The Supreme Court in Shashi Aggarwal v. State of U.P. [1988(1) SCC 436], observed that the possibility of the Court granting bail to the detenus alone would not be sufficient to pass an order of detention. The Supreme Court said: "10. Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of 2016: 69. The impugned Detention Order, passed by the second respondent in his proceedings in No.21/BCDFGISSSV/2016, dated 18.04.2016, is quashed. The detenu, namely Pasumponpandian, Son of Sevugapandian, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case. H.C.P.(MD)No.558 of 2016: 70. The impugned Detention Order, passed by the second respondent in his proceedings in No.22/BCDFGISSSV/2016, dated 18.04.2016, is quashed. The detenu, namely Kannan, Son of Rajamani, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case. H.C.P.(MD)No.687 of 2016: 71. The impugned Detention Order, passed by the second respondent in his proceedings in No.25/BCDFGISSSV/2016, dated 18.05.2016, is quashed. The detenu, namely Suresh @ Mani, Son of Chandrasekar, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case. H.C.P.(MD)No.688 of 2016: 72. The impugned Detention Order, passed by the second respondent in his proceedings in No.24/BCDFGISSSV/2016, dated 11.05.2016, is quashed. The detenu, namely Ajmalkhan, Son of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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