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ESWARI versus THE STATE OF TAMIL NADU

High Court of Madras

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Eswari v. The State of Tamil Nadu - H.C.P.(MD).No.14 of 2007 [2007] RD-TN 801 (5 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05/03/2007

CORAM:

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE G.RAJASURIA

H.C.P.(MD).No.14 of 2007

Eswari ... Petitioner Vs

1. The State of Tamil Nadu

represented by

The Secretary to

Government of Tamil Nadu,

Prohibition and Excise Department,

Fort St. George,

Chennai - 9.

2. The District Collector and

District Magistrate,

Sivagangai District. ... Respondents Prayer

Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus calling for the entire records connected with the detention order of the respondent No.2 in Crl.M.P.No.7 of 2006 dated 08.11.2006 and quash the same and direct the respondent to produce the body of the petitioner's son by name Senthil Kumar now confined in Central Prison, Madurai, before this Honourable Court and set him liberty forthwith. For Petitioner : Mr.T.Lajapathi Roy

For Respondents: Mr.M.Daniel

Additional Public Prosecutor

:ORDER



(Order of the Court was made by G.RAJASURIA, J.) Challenging and impugning, assailing and objecting the detention order in Crl.M.P.No.7 of 2006 dated 08.11.2006, this habeas corpus petition has come to be filed for quashment of the detention order and for setting the detenu Senthil Kumar at liberty.

2. The nitty gritty, the gist and kernel of the grievance of the petitioner as found set out in her affidavit could be portrayed thus: (i) The petitioner is the mother of the detenu Senthil Kumar. The book- let supplied to the detenu and the copies of relied upon documents furnished to the detenu, were illegible, based on which no effective representation could be made. The detenu is a college student as well as a social worker involved in public welfare activities in Thiruppachethi and the surrounding areas thereto, who lodged several complaints with the Inspector of Police, Thiruppachethi complaining about the illegal sand mining by anti-social elements as against whom the police did not raise its little finger. However, the police registered a case in Cr.No.357 of 2006 as against the detenu which ended in acquittal and this fact was not placed before the detaining authority by the sponsoring authority.

(ii) The detenu is alleged to have caused damage to the small channel bridge. In the book-let at page No.31, the statement of one Muthu Kumar, a photographer, under Section 161(3) Cr.P.C is found enclosed. But, the photographs taken by the said Muthu Kumar relating to the alleged bridge which the detenu complained to have damaged, were not furnished with negatives. The copy of the valuation certificate relating to the small channel bridge alleged to have been damaged by the petitioner was not furnished to him. In the book- let, the copies at page Nos.1, 3, 41, 42, 67, 73 and 75 are not legible. Before the Advisory Board, the relevant documents were not placed within three weeks from the date of the detention order passed as per Section 10 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). (iii) Within seven weeks, the Advisory Board did not submit its finding and report as per Section 11(1) of the said Act. The decision of the Board was not communicated to the detenu. Without any basis, the detaining authority arrived at the conclusion that there was likelihood of the detenu being released on bail. There were no materials placed before the detaining authority to have subjective satisfaction concerning the disturbance to public order at the instance of the detenu. The Director of Mines and not the Tahsildhar, was the competent person to lodge the complaint with the police relating to the illegal quarrying of sand. Even though the signature of the detenu was obtained on 09.11.2006 as though he received the book-let, yet the book-let was taken away from him on that day soon after his signature and it was re-delivered only on 13.11.2006 and thereby, the detenu was deprived of his opportunity to make effective representation. Accordingly, the petitioner prayed for quashment of the detention order and for setting the detenu at liberty.

3. Disputing and denying, countering and contradicting the allegations/averments in the affidavit of the petitioner, the second respondent filed the counter with the averments which would pithily and precisely be set out as under:

(i) The book-let supplied, contained legible copies and the copies of documents were supplied to the detenu legibly and the relevant documents were placed by the sponsoring authority before the detaining authority as contemplated under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). The detenu was caught red-handed while he was indulging in illegal sand quarrying on Vaigai river on 29.08.2006 by the Revenue Divisional Officer, Sivagangai and the Tahsildhar, Manamadurai. The lorry bearing No.TN-27-E-2619 which belonged to Senthil Kumar who is the detenu herein, was used for such illegal sand quarrying. The case was registered in Cr.No.357 of 2006 by the police based on the complaint lodged by Tahsildar, Manamadurai.

(ii) The certificate obtained relating to the damage caused to the bridge was not relied on by the detaining authority and it was only an evidence relating to the pecuniary loss to the Government. The relevant documents were handed over by the detaining authority on 11.11.2006 for onward transmission to Advisory Board for its perusal and consideration. The Advisory Board on 06.12.2006 considered the detention order within the time limit. The Government approved the order of detention after considering the report of the Advisory Board and it was communicated also to the detenu on 09.01.2007. Considering the nature of offence referred to in the grounds of detention, the detaining authority felt that there was likelihood of the detenu getting released on bail. The grounds set out in the petition are all frivolous. Accordingly, the second respondent prayed for the dismissal of the petition.

4. Heard both sides in entirety.

5. The point for consideration is as to whether the order of detention dated 08.11.2006 detaining Senthil Kumar is liable to be quashed in view of the grounds set out supra?

The Point:

6. Right at the outset, we may proceed to highlight and spot light that even though the petitioner raised various grounds, yet at the time of hearing, the learned Counsel for the petitioner would focus his attention on almost a new ground to the effect that the representation of the petitioner dated 15.11.2006, a copy of which is found set out in the additional typed set of papers, even though was received by the detaining authority concerned, yet it was not dealt with properly, that it was rejected by his order dated 17.11.2006, a copy of which is found enclosed in the same typed set, that the said representation dated 15.11.2006 as well as the order dated 17.11.2006, was not placed by the detaining authority before the Government or the Advisory Board and that the order of detention is vitiated. Despite this point has not been raised specifically by detailing and delineating the particulars in the affidavit of the petitioner, we heard in the interest of justice the learned Counsel for the petitioner as well as the learned Additional Public Prosecutor.

7. The learned Counsel for the petitioner in support of his point cited the decision of this Court in Selvi v. State, etc. & another reported in 2004-1- L.W.(Crl.).396. The facts and circumstances of that case are to the effect that the detention order was passed on 25.09.1993 under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). The representation was made on 03.10.2003, but it was disposed of by the detaining authority on 16.10.2003. In those facts and circumstances of that case, the Court held that the non-placing of the representation made and the order passed thereon, before the Advisory Board was fatal to the case. In the cited case, it is apparent that even though the representation was made within twelve days from the date of detention, yet the detaining authority who had the power to revoke its own order within twelve days, failed to exercise such power, but rejected belatedly the representation only on 16.10.2003. In those circumstances, this Court quashed the order of detention.

8. So far, this case is concerned, the narration of facts supra would highlight that the representation dated 15.11.2006 made by the petitioner as against the detention order dated 08.11.2006 was rejected on 17.11.2006 itself, so to say, within twelve days from the date of detention and in such a case, there was no necessity for the detaining authority to place such representation and the rejection order before the Government or before the Advisory Board. Over and above the view taken by us as set out supra, the argument of the learned Counsel for the petitioner fails to carry conviction with us from one other legal angle also. The Honourable Apex Court in Sri Anand Hanumathsa Katare v. Additional District Magistrate reported in (2007) 1 Supreme Court Cases (Cri) 102, would posit that the representation made to the detaining authority could be disposed of by the detaining authority itself and it was not duty bound to submit the representation as well as the rejection order to the Government for placing it before the Advisory Board. Certain excerpts from the aforesaid decision of the Honourable Apex Court, would run thus: "10. Therefore, the detaining authority becomes functus officio the moment the approval is accorded by the State Government. It is to be noted that the order of detention can be revoked only on the basis of a representation to the appropriate authority. This fact is relevant. Further para 17 of R.Keshava v. M.B.Prakash [2001 (2) SCC 145 : 2001 SCC (Cri) 289] is of importance. The same reads as follows: (SCC p.154)

"17. We are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate Government/authorities against his order of detention as mandated in Article 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. In the absence of representation or the knowledge of the representation havign been made by the detenu, the appropriate Government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal.

11. At this juncture it would be relevant to take note of paras 17 to 19 of Union of India v. Paul Manickam [2003 (8) SCC 342 : 2004 SCC (Cri) 239]. They read as follows: (SCC pp. 354-55)

17. Coming to the question whether the representation to the President of India meets with the requirement of law, it has to be noted that in Raghavendra Singh v. Supdt., District Jail, Kanpur and Rumana Begum v. State of A.P., it was held that a representation to the President of India or the Governor, as the case may be, would amount to representation to the Central Government and the State Government respectively. Therefore, the representation made to the President of India or the Governor would amount to representation to the Central Government and the State Government. But, this cannot be allowed to create a smokescreen by an unscrupulous detenu to take the authorities by surprise, acting surreptitiously or with ulterior motives. In the present case, the order (grounds) of detention specifically indicated the authority to whom the representation was to be made. Such indication is also a part of the move to facilitate an expeditious consideration of the representations actually made. ....

19. .... If really the citizen concerned genuinely and honestly felt or was interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the real authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration any cry for relief on his own manipulated ground, by directing his representation to any authority which is not directly/immediately concerned with such consideration." [emphasis supplied]

9. When we raised a query to the learned Counsel for the petitioner as to why the detenu has not chosen to make any representation on 15.11.2006 to the appropriate authority namely, the Secretary to Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai - 9, the learned Counsel for the petitioner would state that the petitioner was not aware. But, such an argument is neither here nor there for the reason that in paragraph No.8 of the grounds of detention, it is clearly found spelt out so. As such, the representation dated 15.11.2006 which was made within twelve days by the petitioner from the date of detention order, was properly considered by the detaining authority itself and rejected it.

10. However, the learned Additional Public Prosecutor highlighted that the other representations dated 25.11.2006 and 24.11.2006 as against the same detention order dated 08.11.2006 were dealt with properly both by the Advisory Board and the Government and in the proforma, all the details were set out and a copy of which also was furnished to the petitioner's side, over which the petitioner could not raise any grievance. Explicitly and apparently, obviously and palpably, it is clear that the representations made to the appropriate authority as against the detention order dated 08.11.2006, were properly considered by the appropriate authority and in such a case, there is no substance in the contention on the side of the petitioner.

11. During arguments, virtually a go-by was given to all other grounds specifically raised in the affidavit. Even then, we proceed to deal with those grounds so as to consider whether there is any substance in it. The main grievance expressed was that in the book-let at various pages, the copies were not legible. But, the petitioner has not chosen to produce before us that book- let and highlight as to how those copies were illegible and in what manner the alleged illegible copies deprived the petitioner of his right to make effective representation.

12. Concerning the contention of the learned Counsel for the petitioner that there was no basis for inferring that there was any threat to the public order at the instance of the petitioner, it is to be noted that so far sand offenders are concerned, even one act constituting the offence would be sufficient to attract the definition of sand offender within the meaning of the Tamil Nadu Special Enactment Act No.14 of 1982 and the learned Counsel for the petitioner has not substantiated that ground also during arguments.

13. Relating to the non-furnishing of certificate relating to quantum of damage caused to that small channel bridge, it has been effectively replied by the Additional Public Prosecutor that the certificate was not relied on by the detaining authority and there is nothing to show that such non-placing of it, would vitiate the detention. The said valuation certificate quantifying the damage at a sum of Rs.20,000/-, had it been placed before the authority, would have further strengthened his subjective satisfaction only as patently it is clear that it is an aggravating factor and not a mitigating one by any standard.

14. Here, the point concerned, is about the illegal quarrying and that should not be forgotten. Ample materials were placed before the detaining authority that the detenu was a sand offender and that much evidence would be sufficient for subjective satisfaction.

15. The contention of the petitioner that within seven weeks from the date of detention order, the matter was not finalized by the Advisory Board, is turned out to be an act of let loosing the red-herrings so as to side track the whole issue. The perusal of the confirmation order dated 09.01.2007 would show that the order of confirmation was passed properly after considering the report of the Advisory Board and in such a case, the question of Advisory Board not considering the matter within seven weeks would be a farfetched and untenable plea.

16. The contention that the Tahsildhar was not the competent authority to lodge the complaint relating to illegal sand quarrying is not even worth the paper on which it was written as it is a trait proposition of law that the Tahsildhar could lodge the complaint and no more elaboration is required in this regard.

17. The other grounds set out supra for quashment were not at all urged at the time of arguments and absolutely, we could see no substance in such grounds by applying any standard.

18. The whole hit and caboodle of facts and pleas put forth by the petitioner so as to get quashment of the detention order dated 08.11.2006, ended in fiasco in view of the analysis undertaken by us supra.

19. In the result, this petition deserves to be dismissed and accordingly, dismissed.

rsb

To

1. The Secretary to

Government of Tamil Nadu,

Prohibition and Excise Department,

Fort St. George,

Chennai - 9.

2. The District Collector and

District Magistrate,

Sivagangai District.


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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