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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 ..... ase. The attestation of Affidavits of the Sponsoring Authority by detaining authority indicates predetermination - HELD THAT:- The sponsoring authority is at liberty to make a request to the Detaining Authority to detain the accused. Mere affidavit is not sufficient. The sponsoring authority must produce materials before the Detaining Authority to show that the detenu is acting in a manner prejudicial to the maintenance of public order and as such, he should be detained under the provisions of Tamil Nadu Act 14 of 1982. Here, in this case, the authority empowered to detain, himself acted as the complainant by attesting the affidavit of the sponsoring authority. Nature of Jurisdiction - HELD THAT:- The Detaining Authority should act independently and with an open mind. He should not prejudge the issue even before considering the materials produced before him by the sponsoring authority - In the subject cases, it is clear that the Commissioner of Police actively took part in the process of sponsoring the case of the detenus for detention. The affidavits of the sponsoring officers were attested by the Commissioner of Police by sitting in the armchair of the Detaining Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant 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 - HELD THAT:- The materials available on record would show that the accused were produced on PT warrant. However, in the confession statements, the Inspector of Police made a statement as if the detenus appeared before him on summons. The statement of the Inspector of Police in the respective confession statements goes against the other documents evidencing the production of the accused on PT warrant. The Detaining Authority failed to consider any of these documents and contradictions and signed the Detention Orders in a routine manner. Confusion with regard to adverse case and ground case - HELD THAT:- When the orders of detention were passed, the detenus were in jail. There are no acceptable materials to show that the detenus would be released on bail or there was such a possibility of their release. The Detaining Authority, on the basis of the so-called similar case registered against another accused in an altogether different case, observed that there is a pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 21 April, 2016 branding him as a Goonda . According to the Commissioner of Police, the petitioner was involved in a case in Crime No.74 of 2016 registered under the provisions of the Indian Penal code and Explosive Substances Act on 09 January, 2016. The confession of the accused Pasumponpandian was taken as the material to implicate the petitioner. Subsequently, there was another case in Crime No.61 of 2016 on the file of B6 Jaihindpuram Police Station registered on 10 January, 2016. The said crime was registered, pursuant to the report submitted by the Inspector of Police, B6 Jaihindpuram Police Station on 10 January, 2016 that he found a leather bag kept inside a white polythene bag in a suspicious manner near the public meeting place of AIADMK party at T.P.K.Road, Madurai. The petitioner was produced before the learned Judicial Magistrate No.V, Madurai, through a PT warrant on 30 March, 2016, in connection with the case registered in Crime No.74 of 2016. He was remanded till 04 May, 2016. The petitioner was produced in Crime No.61 of 2016 before the learned Judicial Magistrate No.IV, Madurai and he was remanded till 21 April, 2016. The bail application filed by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e No. 33 of 2016, pursuant to the confession given by Thiru.Pasumponpandian, the petitioner in H.C.P.(MD)No.557 of 2016. Similarly, his name was included as an accused in Crime No. 61 of 2016 on the file of B6 Jaihindpuram Police Station again on the basis of the alleged confession statement given by the co-accused, Mr.Pasumponpandian, the petitioner in H.C.P.(MD)No.557 of 2016. 10. 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. Another bail application filed by the petitioner was dismissed by the learned Judicial Magistrate, on 30 March, 2016. The petitioner filed another bail application before the learned Principal District and Sessions Judge, Madurai, in Crl.M.P.No.1841 of 2016 and the same was pending. 11. The Commissioner of Police, Madurai City, on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced before the learned Judicial Magistrate No.II, Madurai on 08 March, 2016 in connection with the case in Crime No.61 of 2016 on the file of B6 Jaihindpuram Police Station. He was remanded upto 18 May, 2016. 18. The bail application filed on behalf of the detenu was dismissed by the learned Judicial Magistrate No.IV, Madurai, on 17 March, 2016. He filed another bail application in Cr.M.P.No.1543 of 2016. The bail application was dismissed by the learned Judicial Magistrate No.IV, Madurai, on 29 April, 2016. The bail application filed in Cr.M.P.No.1563 of 2016 was also dismissed by the learned Judicial Magistrate on 04 May, 2016. Subsequently, he filed another bail application in Crl.M.P.No.120 of 2016 and the same was still pending before the learned Principal District and Sessions Judge, Madurai. 19. While so, the Commissioner of Police, passed the order of detention under the provisions of Tamil Nadu Act 14 of 1982, branding the detenu as a Goonda . SUMMARY OF CONTENTIONS OF PETITIONERS: 20. The petitioners in all these Habeas Corpus Petitions took identical contentions to demonstrate that the Detaining Authority mechanically passed the detention orders and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10 January, 2016, was taken as the adverse case. The case registered on 09 January, 2016, was treated as the ground case. The Commissioner of Police, in the Detention Orders, indicated that some of the detenus were produced on PT warrant. However, in the confession recorded by the police, it was mentioned that the accused appeared before the Inspector of Police, pursuant to the notice issued by him and they have given confession statements voluntarily. The learned Senior Counsel further contended that nobody was injured in explosion. The First Information Report did not contain the name of any of the accused. The police added the name of these detenus and cooked up a false case to detain them under the provisions of Tamil Nadu Act 14 of 1982. 24. The learned Senior Counsel, further, contended that there was undue delay in considering the representation by the statutory authority and as such, the Detention Orders are liable to be quashed on that ground also. 25. The learned Senior Counsel placed reliance on the following decisions: (i) The judgment in Raj v. The Secretary to Government [2014(3) MWN (Cr.) 4)(DB)] was relied on to contend that there is no question of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to contend that length of the delay alone is material. In the said case, the Supreme Court found that 6 days delay in considering the representation was not unduly long. (ii) The judgment of the Supreme Court in K.M.Abdulla Kunhi v. Union of India [1991 SCC (Cri) 613] was cited to prove the point that as long as the Government without delay considers the representation with an unbiased mind, there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention. (iii) The judgment in State of Tamil Nadu v. C.Subramani [1993 SCC (Cri.) 28], was relied on to contend that the question of any period taken in dealing with the representation has to be decided in the peculiar facts and circumstances of each case and it cannot be determined on the basis of any rigid period of time uniformly applicable to all cases. (iv) The decision of the Supreme Court in Noor Salman Makani vs. Union of India [1994 SCC (Cri.) 521] was again cited to demonstrate that delay of 5 days taken by the authorities in furnishing the parawise comments on the representation is not undue delay. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The seal of the Commissioner, Madurai City is found affixed in the affidavits sworn to by the sponsoring authority. 33. The very same Commissioner, thereafter, passed the order of detention on different dates. The detention order in H.C.P. (MD)No.556 of 2016 was passed on 21 April, 2016. The detention order in H.C.P.(MD)No.557 of 2016 was passed on 18 April, 2016. The detention order in H.C.P.(MD)No.558 of 2016 was passed on 18 April, 2016. The detention order in H.C.P.(MD)No.687 of 2016 was passed on 18 May, 2016. Similarly, the detention order in H.C.P. (MD)No.688 of 2016 was passed on 11 May, 2016. 34. The affidavit of the sponsoring authority in H.C.P. (MD)No.556 of 2016 is dated 20 April, 2016. Based on the said affidavit, duly attested by the Commissioner of Police, the very same Commissioner of Police, Madurai, in his capacity as the Detaining Authority passed the order of detention on 21 April, 2016, which is challenged in H.C.P.(MD)No.556 of 2016. 35. The sponsoring authority is at liberty to make a request to the Detaining Authority to detain the accused. Mere affidavit is not sufficient. The sponsoring authority must produce materials before the Detaining Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the ground work to detain a person, and thereafter, passed the order of detention, such orders are liable to be quashed on the ground of pre-determination. 40. The Act mandates that the Commissioner of Police must arrive at a satisfaction on the basis of materials placed before him. In case the materials were collected by him, or he actively took part either to make out the grounds to detain a person or to make a request to detain a person through the sponsoring authority, it would be clear that he acted with a pre-conceived notion to set the scores. 41. The Detaining Authority should act independently and with an open mind. He should not prejudge the issue even before considering the materials produced before him by the sponsoring authority. 42. In the subject cases, it is clear that the Commissioner of Police actively took part in the process of sponsoring the case of the detenus for detention. The affidavits of the sponsoring officers were attested by the Commissioner of Police by sitting in the armchair of the Detaining Authority. He was, therefore, in the know of things, even before the commencement of statutory proceedings for detention. In short, the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prohibition and Excise immediately. The Minister rejected the representation on 17.05.2016. There is a delay of 4 days in considering the representation. (B). The fifth representation was received by the Government on 06.06.2016. The Under Secretary and the Deputy Secretary, after obtaining the remarks, considered the issue on 14.06.2016. The file was sent to the Minister on 14.06.2016. The Minister rejected the representation on 01.07.2016. There is a delay of 17 days in considering the representation by the Minister. Even if 4 holidays in between are deducted, still there is a delay of 13 days. This delay has not been explained either by the Detaining Authority or by the Government by furnishing materials. H.C.P.(MD)No.558 of 2016: 47(A). The first representation dated 28.04.2016 was received by the Government on 02.05.2016. After obtaining the remarks on 02.05.2016, the file was submitted to the Secretary on 04.05.2016. The Under Secretary and the Deputy Secretary perused the file and offered their remarks on 05.05.2016. However, the Minister considered the file only on 17.05.2016 and rejected the representation. There is a delay of 12 days between 05.05.2016 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016. Even if holidays are excluded, still there is a delay of 12 days. This delay has not been properly explained either by the Detaining Authority or by the Government. H.C.P.(MD)No.688 of 2016: 49(A). The first representation dated 27.05.2016 was received by the Government on 06.06.2016. After obtaining the remarks, the Under Secretary considered the file on 07.06.2016. Thereafter, the file was dealt with by the Deputy Secretary on 08.06.2016. The file was sent to the Minister on 08.06.2016. The Minister passed orders rejecting the representation on 29.06.2016. There is a delay of 21 days between 08.06.2016 and 29.06.2016. Even if 6 holidays are excluded, still there is a delay of 15 days. (B). The second representation was considered by the Under Secretary and Deputy Secretary on 14.06.2016. The Minister rejected the representation on 01.07.2016. There is a delay of 17 days in between 14.06.2016 and 01.07.2016. Even if 4 holidays are excluded, still there is a delay of 13 days in considering the second representation. The Detaining Authority and the Government miserably failed to explain the undue delay in disposal of the representations. UNEXPLAINED DELAY REN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay in considering the representations by the Hon'ble Minister. 55. The background facts very clearly show that the Minister for Electricity, who was given the authority to consider the representations of the detenus, slept over the issue for days together. The learned Additional Advocate General has given a reason that the Minister himself was a candidate and as such, the matter was delayed. We are not inclined to accept the said submission. In fact, even the Government or Detaining Authority have no such case. The Minister, as a delegate of the Government, was required to consider the representations as expeditiously as possible with all seriousness. The fact that the Minister himself was a candidate cannot be a valid reason to keep the representations pending indefinitely. 56. It is trite that the number of days delay alone are not material. It is the cause for delay which is material. There was no genuine attempt made either by the Detaining Authority or by the Government to explain the inordinate delay in the disposal of the representations submitted by the detenus. We are, therefore, of the view that the impugned Detention Orders are liable to be quashed on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 detenus also. 62. The materials available on record would show that the accused were produced on PT warrant. However, in the confession statements, the Inspector of Police made a statement as if the detenus appeared before him on summons. The statement of the Inspector of Police in the respective confession statements goes against the other documents evidencing the production of the accused on PT warrant. The Detaining Authority failed to consider any of these documents and contradictions and signed the Detention Orders in a routine manner. CONFUSION WITH REGARD TO ADVERSE CASE AND GROUND CASE: 63. The First Information Report was registered on 09 January, 2016. There was no eye witness to the incident in question. The police arrested Pasumponpandian, the petitioner in H.C.P. (MD)No.557 of 2016 and recorded his confession statement. Thereafter, the name of the other accused were included. It is also not in dispute that nobody was injured on account of the explosion. Thereafter, another case was registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. 66. The Supreme Court in Hem Lall Bhandari v. State of Sikkim [AIR 1987 SC 762], observed that the Detaining Authority must act in strict compliance with the mandatory provisions of law. The Supreme Court said: 12. It is not permissible in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizens is involved, it is necessary for the officers to act with almost expectation and in strict compliance with the mandatory provisions of law. Expeditious action is necessitated upon as a safeguard against the manipulation. 67. In the subject cases, the police initially registered a First Information Report on 09 January, 2016 and the second one on 10 January, 2016. The detenus were arrested on different dates in the month of March and April, 2016. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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