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Noushad v. The State of Tamil Nadu - Habeas Corpus Petition No. 1248 of 2003  RD-TN 44 (6 February 2004)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
The Honourable Mr.Justice V.S.SIRPURKAR
The Honourable Mr.Justice F.M.IBRAHIM KALIFULLA
Habeas Corpus Petition No. 1248 of 2003
Noushad .. Petitioner -Vs-
1. The State of Tamil Nadu,
rep. by its Secretary,
Department of Public (L&O) Department,
Chennai 600 009.
2. The Commissioner of Police,
3. The Secretary,
Ministry of Home Affairs,
Department of Internal Security,
New Delhi - 1. .. Respondents Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus for the reasons stated therein.
For Petitioner .. Mr.R.Sankarasubbu
1 & 2 .. Mr.A.Naveenathakrishnan
For Respondent3.. No Appearance
:O R D E R
(The Order of the Court was made by V.S.Sirpurkar,J) This is a Habeas Corpus Petition challenging the order passed by the Commissioner of Police, Coimbatore dated 08.03.2003 under the provisions of Section 3 of the National Security Act, 1980 on the ground that it was necessary to prevent the detenu from acting in any manner prejudicial to the maintenance of public order. Detailed grounds have been given in support of the orders, which grounds we have been able to find only from the file produced by the learned Additional Public Prosecutor.
2. Very strangely, the detenu Noushad S/o. Thiru.Hassan had refused to accept the order of detention and also the grounds of detention, which were pasted to his cell where he was lodged after being taken into custody. Needless to say that the original detention order and the grounds have not been supplied by the learned counsel for the petitioner. It was, therefore, that we were required to go through the order on the basis of the file.
3. Mr.R.Sankarasubbu, learned counsel appearing for the petitioner, however, accepts that the papers relied on by the learned Additional Public Prosecutor are at least genuine in the sense that it is the actual detention order and the grounds, which have been now supplied to us.
4. On that basis, learned counsel argues before us that there is total non-application of mind on the part of the detaining authority and a very valid circumstance as of the blindness of the detenu has not been taken into consideration by the detaining authority. For that purpose, we went through the whole grounds. The grounds suggest that the detenu Noushad, who is a native of Kerala, is a member of Peoples Democratic Party headed by Abdul Nazar Maudani and was its Joint Secretary of Kozhikode District and he was very close to the family of said Abdul Nazar Maudani. It is, then, pointed out that as many as four visitors had visited the said Abdul Nazar Maudani, who was lodged in Central Prison, Coimbatore, and returned with bags in their hands and in all the bags, prohibited articles were found. In the bag of one Saleem, who was one of the persons, six numbers of 3.6 Motorala Lithium batteries, which are being used in the cell phones, were found. There is a reference to an incident dated 26.12.2002 where Tmt.Soofia Maudani wife of Abdul Nazar Maudani tried to go inside the prison with cell phone to see her husband and when objected by the police party, she pushed a woman Sub-Inspector of Police on duty and engaged in heated arguments with the officials, for which an offence under Section 353 of the Indian Penal Code was registered against her. The grounds suggest that infuriated by these incidents, a conspiracy was hatched by the said Abdul Nazar Maudani to cause dam age to the Tamil Nadu State Transport Corporation buses plying in Kerala and to plant a timedeviser bomb in Coimbatore City to terrorise the public of Coimbatore. Then there is a reference to the incident dated 30.12.2002, where on an intimation over phone to the Office of Commissioner, a STD booth was searched wherein a black colour rexin bag was found, which was found to contain 4 gelatine sticks, one electric detonator, one 9 volt battery connected with an improvised timer along with other items, and also threatening messages in English given in the name of Al-Umma, Chennai and Ameer Al-Jihad, Bombay. On these basis, an offence was registered at B-4, Race Course Police Station, Coimbatore City.
5. Then it is referred that one M.A.Shabir was arrested on 03.01.200 3 and he gave a confession statement on 03.01.2003 where upon some letters, papers, receipts, one ATM card, telephone directory etc. were seized from him and one Computer was also seized from Sona Travels. It is, then, pointed out in the grounds that one Noushad, the detenu herein, came to be arrested by B-4, Race Course Police Station, Coimbatore on 06.01.2003 and his confession statement was recorded, on the basis of which a bag was seized from Kera Food Industries, Calicut containing two covers each containing 20 numbers of print outs, similar to the one seized along with the explosive substances from the STD booth at Press Club, Coimbatore and he was, therefore, remanded to judicial custody. It is, then, suggested in the grounds that the custody of Shabir was extended from time to time and his confession was also recorded. A reference is then made to B-9, Saravanampatty Police Station having taken the police custody of Noushad, the detenu herein and his confession statement was recorded on 09.01.2003 at B-4 Race Course Police Station, Coimbatore. It is, then, suggested that the material in the said cloth bag seized from the STD booth was confirmed as gelatinous mass and being explosive of class 3 Division 1 as defined under Schedule 1 of the Explosives Rule 1983. In paragraph 13 it is suggested that there was a conspiracy hatched by Abdul Nazir Maudani with M.A.Shabir, Noushad and others to burn buses of Tamil Nadu State Transport Corporation plying in Kerala by planting time deviser bomb, such as the one found at the Press Club at Avinashi Road, Coimbatore. It is suggested that this news has created panic and the public life was disturbed because of that. It is, then, suggested that Noushad, the detenu, had accompanied Tmt.Soofia Moudani on 26.12.2002 to meet Abdul Nazar Maudani for hatching conspiracy. All his activities are thereafter stated in paragraph 15. In paragraph 16 a clear cut reference is made to Original Petition No.152 of 2003 filed before the High Court of Kerala by the detenu's father namely Hassan and a reference is also made to the counter affidavits filed on behalf of the Assistant Commissioner of Police and Inspector of Police. It is, then, expressed that the said Noushad though in jail custody, and his application having been dismissed, he was likely to get bail after efflux of time and therefore, there was a compelling necessity to pass orders to prevent him from acting in any manner prejudicial to the maintenance of public order.
6. We have deliberately given the whole grounds, because there is one very striking factor in this detention case. At the outset, learned counsel Mr.Sankarasubbu urged that the detenu is 80 blind, and in fact he has been given a telephone booth from the blind persons quota. He pointed out and files a certificate before us that he is not in a position to see. Learned counsel, further, argues that the fact that the detenu was blind and was not in a position to see is clear from the confessional statement made by him before the Police, in which itself he had claimed to be blind and further claimed that blindness is also congenital in the sense that his father is also blind. Learned counsel, further, points out that even in the original petition, to which a reference is made in the grounds and which document has also been relied upon by the detaining authority, there is a specific claim that he is totally blind. Learned counsel therefore points out that in the wake of this blindness, the detaining authority was bound to consider the fact of his blindness and therefore, is not being able to continue with his nefarious activities, if any. According to the learned counsel, this was a very relevant fact.
7. As against this, learned Additional Public Prosecutor suggests that this person was working as an office boy and it could not be said that he was a blind person. In the counter also, it is asserted that the said Noushad is not 80 blind, as claimed by him and that he was working in the Food Industries as an office b oy. Beyond this there is no assertion that he is not actually blind, excepting paragraph 6 where it is again reiterated that he is not blind.
8. Now it is clearly a question of fact as to whether he is blind or not. However, there is a certificate issued to him by the Superintendent, Medical College Hospital, Kozhikode about his being physically handicapped, wherein it is clearly suggested that his disability percentage is 80, which is described as severe disability. This certificate also goes on to suggest that there is total loss of vision. In the wake of the denial by the detaining authority, it would indeed be a question of fact as to whether he is blind or not and therefore, we may not be in a position to appreciate that fact for the reasons of his blindness alone. 9. However, the argument of the petitioner is undoubtedly correct when the petitioner suggested that this fact of blindness was bound to be at least considered by the detaining authority. We have deliberately referred to the grounds in detail. In that, there is absolutely no reference to the blindness of the detenu or the claim of his blindness also. The blindness was claimed in the original petition filed in Kerala High Court, which was referred to in his own confession statement also and it is to be found in the remand report, because he had complained before the Judicial Magistrate before whom he was produced that he was blind. Now in the wake of these, we are of the clear opinion that this fact or the fact of blindness or at least his claim as blind was bound to be considered by the detaining authority and his imminent possibility of engaging himself in any prejudicial activities endangering public order, should have been weighed against this fact of blindness or his claim of being a blind. There is nothing in the whole order and therefore, we are constrained to say that the order is bad for non-application of mind. The claim of the petitioner was not without any reasons. It surfaced at the very time when he was produced before the Magistrate. It also surfaced in his confession statement and then it surfaced even in his original petition, which he had filed before the Kerala High Court. We are told at the Bar that the said petition has now been disposed of, but the claim of blindness has not been rejected by the Kerala High court also. We have referred to that only to complete the narration. However, the fact remains that the detaining authority has not taken into consideration either the blindness or his claim also and has not weighed the possibility of his being able to disturb the public order with his activities vis-a-vis his blindness.
10. In that view the Habeas Corpus Petition is allowed. The order of detention dated 08.03.2003 is set aside. The detenu Noushad S/o. Hassan is directed to be set at liberty forthwith, unless his detention is required in any other case.
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