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RAJU @ RAJKUMAR @ VENKATARAJ versus STATE OF TAMIL NADU

High Court of Madras

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Raju @ Rajkumar @ Venkataraj v. State of Tamil Nadu - H.C.P. NO. 548 OF 2003 [2003] RD-TN 983 (10 November 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10/11/2003

CORAM

THE HONOURABLE MR. JUSTICE E. PADMANABHAN AND

THE HONOURABLE MR. JUSTICE S. ASHOK KUMAR H.C.P. NO. 548 OF 2003

In the matter of detenu Raju

@ Rajkumar @ Venkataraj @

Appalasamy Naidu

Raju @ Rajkumar @ Venkataraj

@ Appalasamy Naidu .. Petitioner -Vs-

1. State of Tamil Nadu

rep. by Secretary

Prohibition & Excise Dept.

Fort St. George, Chennai 600 009.

2. The Commissioner of Police

Greater Chennai, Egmore

Chennai 600 008. .. Respondents Petition filed under Article 226 of The Constitution of India, praying this Court to issue a Habeas Corpus calling for the records in Detention Order dated 06.03.2003 bearing Memo No.80/BDFGIS/2003 on the file of the 2nd respondent and set aside the same and direct the 2nd respondent herein to produce the body of the petitioner Thiru Raju @ Rajkumar @ Venkataraj @ Appalasamy Naidu now confined in Central Prison, Chennai, as stated therein. For Petitioner : Mr. P.Venkatasubramanian

For Respondents : Mr. I.Subramanian, Public Prosecutor assisted by Mr. M.K.Subramanian, GA (Crl. Side) :ORDER



E. PADMANABHAN, J.

1. As against the petitioner herein, the 2nd respondent, the Commissioner of Police, Greater Chennai, clamped an order of detention as the said authority arrived at a subjective satisfaction that the said detenu is an immoral traffic offender as contemplated under Section 2 (g) of Tamil Act 14 of 1982 and that he has to be detained under Section 3 (1) of the said Act in order to prevent him from indulging in such further activities in future, which are prejudicial to the maintenance of public order under the provisions of the said Tamil Nadu Act 14 of 1982. Challenging the said detention, the present Habeas Corpus Petition has been filed.

2. Heard Mr.Venkatasubramanian, learned counsel appearing for the petitioner and Mr.I.Subramanian, learned Public Prosecutor appearing for the respondents. 3. The learned counsel for the petitioner contended that the order of detention is vitiated by non-application of mind as the detaining authority has taken into consideration irrelevant and extraneous factors while ordering detention. Nextly it is contended that there is a delay in considering the representation and this has rendered the detention illegal. 4. Per contra it is contended by the learned Public Prosecutor that the order is not vitiated and the subjective satisfaction arrived at is not liable to be interfered. It is also further contended that there is no delay in considering the representation.

5. According to Mr.Venkatasubramanian, the delay in considering the representation has rendered the detention illegal, as it is an infraction of Article 22 (5). In this respect no counter has been filed, but the file was produced and details were furnished by the learned Public Prosecutor. The order of detention in this case was passed on 6.3.03. The representation dated 25.3.03 submitted by the petitioner reached the hands of the State Government on 27.3.03. The State Government called for remarks on 28.3.03 from the detaining authority. The remarks were submitted by the detaining authority on 4.4.03. The file was put up on 5.4.03. The Under Secretary considered the file on 7.4.03. The Additional Secretary considered the file on 8.4.03. The Honourable Minister in-charge considered the file on 10.4.03 and rejected the representation. The order of rejection dated 11.4.03 was sent to the Superintendent, Central Prison on the same day and it has been served on the detenu. In the interregnum, 29.3.03 and 30.3.03 being Saturday and Sunday were official holidays. 2.4.03 is also an official holiday. So also 6.4.03 is a holiday. On a consideration of the above dates, it is seen that the representation was always on the move and it was receiving the attention and consideration of one authority or the other on a day-to-day basis. Hence, we hold that there is no delay in considering the representation on the facts of the case as seen from the dates set out above. Hence, the contention advanced by Mr.Venkatasubramanian that the detention has been rendered illegal cannot be sustained.

6. The first of the contention advanced requires to be considered. As against the detenu, there were as many as five adverse cases registered during the year 2001 and 2002 for alleged offences either under Section 4 (1) or 3 (1) or 8 (a) of The Suppression of Immoral Traffic Act. Out of the five adverse cases, four of them were pending trial and in one of them the detenu has been convicted and imposed a fine of Rs.1,000/=. 7. Apart from the above four adverse cases, the detenu, it is alleged, is involved in the ground case. As seen from the ground case, it is alleged that on 21.2.03 at about 1730 hours, the Inspector of Police, Anti-Vice Squad received reliable information through his informant that the detenu along with his associates were standing at 9/24, 4 th Cross Street, Gangaiamman Koil St., Vadapalani, by keeping girls in a van calling the public to have intercourse with the available girls; that the said Inspector set up one Ramamurthy as decoy, that the squad was keeping a watch, that the said decoy proceeded to the spot and noticed the detenu and his associates standing near a van bearing No. TN-07-J-477 with his associates, that the detenu called the decoy, that the detenu and others introduced themselves, took the decoy and introduced one Suresh and called the girls, that the detenu induced the decoy to have sexual intercourse with the available girls either in the van or at a particular residence and that they demanded Rs.3,000/=. It is alleged that the girls came near the decoy and called him to have sexual intercourse to which the decoy replied that he is not in possession of so much of funds and the decoy went to the Police Inspector and informed the same. The Inspector of Police, AntiVice Squad along with the decoy and other police rushed to the spot. The said decoy Ramamurthy identified the detenu and others. Noticing the police personnel rushing to apprehend them, the detenu raised an alarm stating that the Inspector is approaching, that we shall not be caught by them, that this squad is preventing them from carrying on their trade eaking their livelihood and asked his associate to attack the police party. It is alleged that Suresh, who was present took out an Oorutukattai and rushed to beat the Head Constable, Sakthivel, who warded off the attack. However the blow fell over his right forearm and right hand fingers and caused injuries. At the same time the detenu also took out a kinfe from his hip and rushed to attack the Sub-Inspector present there, while uttering certain words. The SubInspector warded off the knife attack, but knife fell over the left forearm and caused bleeding injuries. Those persons were overpowered. The detenu took out a brandy bottle from his pant pocket and hurled the same against the police party from which the police moved away and escaped. The bottle fell on the road and broke into pieces. The public, who were at the spot noticed and ran for safer places out of fear for danger to their lives and properties. The shop keepers closed down their business. The public, who were proceeding in their vehicles, noticing the incident, feared to move further and turned back their vehicles in the same direction from which they came resulting in traffic dislocation. It is further alleged that thus the detenu created a terror and threatened the police.

8. The police party overpowered the detenu, Suresh and the girls and they were apprehended at the spot. The knife and the broken bottle were recovered. A case under Sections 4 (1), 8 (a) of ITT Act and 336 , 427, 353, 332, 307 and 506 (2) IPC were registered against the detenu and the case was taken up for investigation. The detenu was taken to custody and remanded by the IV Metropolitan Magistrate, Saidapet. Thereafter, the sponsoring authority moved the detaining authority for detention of the detenu. Based upon the ground case, the order of detention has been passed, we are not concerned with the truth or otherwise of the allegations at this stage. 9. The learned counsel for the petitioner, while referring to the order of detention, in particular to the portion extracted hereunder, contended that the detaining authority has taken into consideration of irrelevant materials and this is a case of non-application of mind and, therefore, the order of detention is liable to be quashed. It is further highlighted that the order of detention came to be passed by the detaining authority on the sole ground that the detenu forced a man to have sexual intercourse with the girls against his wish, which is in the ground case and this is an irrelevant consideration, while clamping an order of detention. That apart, it is contended that the case is not a case of public order, but law and order. With respect to the contention that it is a case of not a public order, this Court is not persuaded to accept, as even a solitary case would be a valid ground in a given case. That apart, there can be an order of detention as an immoral traffic offender as the detenu has involved himself in four earlier cases as well as the ground case.

10. But that will not save the order of detention from the inherent illegality, namely, non-application of mind and taking into consideration of irrelevant material. The subjective satisfaction has been arrived at by the detaining authority solely on the ground that the detenu has "forced a man to have sexual intercourse with the girls against his wish" and as such punishable under Chapter XVI and XXII of the IPC and ITP Act. 11. There is force in the contention advanced by the learned counsel for the petitioner. The ingenious arguments advanced by the learned Public Prosecutor in this respect cannot be sustained as the very order would disclose what was in the mind of the detaining authority, while arriving at the subjective satisfaction.

12. The material portion of the order, which disclose the mind of the detaining authority or the basis of detention as disclosed by the detention order is evident from the following lines :-

"The offences under Sections 336, 332, 353, 307, 427 and 506 (ii) IPC and 4 (1) and 8 (1) of IPT Act relates to endangering human body, assaulting the public servant, attempt to murder, mischief to property, criminal intimidation and forcing a man to have sexual intercourse with girls against his wish as such punishable under Chapters 16 and 2 2 of the said Code and ITP Act. Hence, I am satisfied that Tr.Raju @ Rajkumar @ Venkataraj @ Appalasamy Naidu habitually committing crimes and also acted in a manner prejudicial to the maintenance of public order by forcing the men against their wish to have sexual intercourse with women and as such he is an Immoral Traffic Offender as contemplated u/s. 2 (g) 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 by forcing a man into prostitution against his wish has created 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." 13. The repeated expression being that "the detenu has forced a man to have sexual intercourse with the girls against his wish" and the same is punishable under Chapter XVI and XXII of the IPC and ITP Act. This again would demonstrate non-application of mind. Compelling a man to have sexual intercourse with girls is not an offence under ITP Act nor it will constitute an offence either under Sections 336, 332, 353, 307, 427 and 506 (2) IPC. The FIR, which finds a place in the paper book does not disclose that the detenu h as forced a man to have sexual intercourse with girls against his wish. This is a clear case of irrelevant consideration and this vitiates the order of detention. What was in the mind of the detaining authority is that the detenu is in the habit of forcing a man to have sexual intercourse with girls. This is being repeated as seen from the passage extracted above. The last portion of the order would show that the detaining authority has proceeded as if the detenu has forced a man into prostitution against his wish. The above would show that it is an irrelevant factor, which has gone into the mind of the detaining authority while ordering detention and this vitiates the order of detention.

14. The detaining authority has been conferred with the power to order detention and it is expected that he shall exercise the same by applying his mind to the facts and circumstances of the case on hand. Otherwise his action or decision will be bad and the authority is deemed to have failed to exercise its discretion. It means that the authority has failed to apply its mind to the facts. The recital of incorrect facts in the order that the detenu has forced a man to have sexual intercourse with the girl, would show what was in the mind of the detaining authority is the said offence, viz., "forced a man to have sexual intercourse" and not the offences under The Immoral Traffic Act and not for any of the offence for which crime has been registered against the detenu in the ground case.

15. Consideration of irrelevant materials is clear as seen from the portion of the order extracted above and it amounts to nonapplication of mind vitiating the subjective satisfaction. Hence, the detention is illegal. The detaining authority was also not sure as to whether the detenu has committed an offence under Suppression of Immoral Traffic Act or Chapters XVI and XXII of the IPC for which he is being detained.

16. As already pointed out, detention was on the ground that the detenu has forced a man to have sexual intercourse with girls and this is not supported by the very FIR in the ground case. There is no material whatsoever before the detaining authority to arrive at a subjective satisfaction that the detenu had forced a man against their wish to have sexual intercourse. Actually there was no material whatsoever before the detaining authority to come to the conclusion that the petitioner had forced men to have sexual intercourse with girls and the subjective satisfaction arrived at by the detaining authority is vitiated by non-application of mind. Irrelevant material has been taken into consideration while arriving at the subjective satisfaction by the detaining authority. The end result would be that the detaining authority has not applied its mind to relevant and proximate matters. 17. In this respect the Supreme Court in SMT. SHALINI SONI & OTHERS VS. UNION OF INDIA & OTHERS reported in 1980 (4) SCC 544, held thus :- "7. ..... It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. " 18. In ABDUL RAZAK ABDUL WAHAB SHEIKH VS. S.N. SINHA, COMMISSIONER OF POLICE, AHMEDABAD & ANOTHER reported in 1989 (2) SCC 222, the Supreme Court held thus :-

"14. ...... The reasonableness of the satisfaction of the detaining authority cannot be questioned in a court of law; the adequacy of the material on which the said satisfaction purports to rest also cannot be examined by a court of law. It has also been observed that if any of the grounds furnished to the detenu is foun d to be irrelevant while considering the application of clauses (i) to (iii) of Section 3(1)(a) and in that sense of the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order is liable to be quashed." (Emphasis Supplied)

19. In the light of the above pronouncements of the Supreme Court, we hold that the order of detention is vitiated and it is liable to be quashed. Accordingly the order of detention is quashed. The Habeas Corpus Petition is allowed. The detention order is quashed and the detenu is set at liberty forthwith unless his presence is required in any other case. Index : Yes

Internet : Yes

GLN

To

1. State of Tamil Nadu

rep. by Secretary

Prohibition & Excise Dept.

Fort St. George, Chennai 600 009.

2. The Commissioner of Police

Greater Chennai, Egmore

Chennai 600 008.

3. The Superintendent

Central Prison, Chennai.

(in duplicate for communication to the detenu)

4. The Public Prosecutor

High Court, Madras.

5. The Jt. Secretary to Government

Public (Law & Order)

Fort St. George, Chennai 600 009.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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