Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 5857/2016
E. SUBBULAKSHMI PETITIONER(S)
VERSUS
SECRETARY TO GOVERNMENT & ORS. RESPONDENT(S)
J U D G M E N T
A.M. KHANWILKAR, J.
1. The detenu's mother filed a writ petition in the
High Court of judicature at Madras bearing H.C.P. No.117
of 2016 challenging the Detention Order
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N.1227/BCDFGISSSV/2015 dated 04.12.2015. The principal
contention pursued before the High Court was that the
typed set of booklet furnished along with the impugned
detention order to the detenu was illegible, in
particular, the copy of the F.I.R. in respect of Crime
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No.598 of 2015 dated 18 March, 2015. The High Court
negatived the said contention on the finding that the
detenu did not make any representation to the
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Appropriate Authority nor brought the said fact to the
notice of the concerned authority. Further, no such plea
was taken in the writ petition. Another contention
raised before the High Court that the name of the Judge
has not been correctly mentioned in the remand orders
supplied to the detenu, has also been rejected by the
High Court on the finding that the same can be no ground
to quash the detention order. No other contention was
pursued before the High Court.
2. In the present special leave petition the petitioner
has raised different grounds to challenge the impugned
detention order. In the special leave petition and the
application for urging additional grounds, following
points have been urged, which were reiterated during the
course of arguments:
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i) The detention order does not mention
the specific period for which the same would
operate and, therefore, it is vitiated.
ii) There is no record to indicate that the
next friend/family member of the detenu was
informed about the factum of detention at the
earliest opportunity.
iii) The satisfaction recorded by the
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Detaining Authority is inter alia on the basis
of a confessional statement which, however,
does not bear the signature of the detenu and,
therefore, could not have been relied upon.
This has impacted the subjective satisfaction
of the Detaining Authority.
iv) Copy of the F.I.R. furnished to the
detenu (at page Nos.7980 of the SLP paper
book) is illegible and as a result of which the
detenu was denied of an opportunity to make
effective representation.
v) The impugned detention order refers to
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the Government order dated 18 October, 2015
but copy of that document has not been
furnished to the detenu, which is fatal to the
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continued detention of the detenu.
3. Taking the first point urged before us, the same
deserves to be stated to be rejected. Inasmuch as the
detention order has been issued by the Commissioner of
Police in exercise of powers under Section 3(1) read with
Section 3(2) of the Tamil Nadu Prevention of Dangerous
activities of Bootleggers, Cyber Law Offenders, Drug
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Offenders, Forest Offenders, Goondas, Immoral Traffic
Offenders, Sand Offenders, Sexual Offenders, Slum
Grabbers and Video Pirates Act, 1982 (for short, 'the
Act of 1982'). The grounds of detention served on the
detenu expressly mentions that the detention order shall
remain in force for 12 days in the first instance. The
proposal for confirmation of detention order was
considered by the Appropriate Authority (Deputy Secretary
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to the Government dated 15 December, 2015 read with the
order passed by the Deputy Secretary to the Government
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dated 29 February, 2016). That makes it amply clear
that the detention period would continue up to 12 months.
The initial detention order, upon confirmation thereof,
would remain in force for a period of 12 months. Thus
understood, the ground urged by the petitioner to
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challenge the detention of her son Murugan S/o.
Esakkimuthu Thevar is devoid of merit.
4. Reverting to the second point, even the same
deserves to be rejected, inasmuch as the respondents have
filed reply affidavit and asserted that after the
detention order was executed and the detenu was taken
into custody, intimation in that behalf was sent to his
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brother Venkatesh by registered post on 6 December,
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2015. The postal receipt in that behalf is also placed
on record. The fact so asserted has not been countered
by the petitioner. The intimation sent to the detenu's
brother and the memo in that behalf is marked as Annexure
R2 Thus, it is not a case of no intimation given to the
next friend/family member of the detenu at the earliest
opportunity. The petitioner placed reliance on the
decision of this Court in the case of D.K. Basu v. State
of West Bengal, (1997) 1 SCC 416, in particular paragraph
35 enunciating the procedure to be adopted in all cases
of arrest or detention. In clause (4) of the said
paragraph it is predicated that the time, place of arrest
and venue of custody of an arrestee must be notified by
the police where the next friend or relative of the
arrestee lives outside the district or town through the
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Legal Aid Organization in the District and the police
station of the area concerned telegraphically within a
period of 8 to 12 hours after the arrest. We find force
in the submission of the learned counsel for the
respondent that the procedure about arrest of a person
and sending intimation dealt with by the Supreme Court is
essentially in respect of arrest of a criminal and to
interrogate him during the investigation. In any case,
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in the absence of telegraphic service available, as of
now, intimation sent to the family member of the detenu
by registered post in addition to the telephonic
intimation must be considered as substantial compliance
| f the requirement<br>as placed relian<br>adras in the cas | |
| T | amil Nadu and An |
case the stand taken by the authority was that intimation
was given to the next friend of the detenu over cell
phone/land line phone. The Court opined that it is
difficult to ascertain the correctness of that position
and intimation by land line telephone/cell phone must be
eschewed. The Court observed that even if no telegraphic
service was available, in such a situation it would be
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appropriate to send intimation by epost as introduced by
the Department of Posts, Government of India with effect
from 30.01.2004. That suggestion has been given in
paragraph 25 of the judgment. The fact remains that in
the present case intimation was given to the family
member of the detenu by registered post as well as on
telephone. As observed earlier, substantial compliance of
giving information to the family member of the detenu has
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been done. Hence, the argument under consideration need
not be examined any further.
5. The third ground urged by the petitioner is about
the reliance placed on alleged confessional statement
given by the detenu during the investigation of the
ground case. The fact that no signature of the detenu
has been noted on the said confessional statement, it
would at best be a ground to discard that document in a
criminal trial being inadmissible in evidence. That by
itself is not sufficient to question the subjective
satisfaction reached by the Detaining Authority. What is
also required to be considered is: whether the said
voluntary confessional statement was the sole basis to
arrive at the subjective satisfaction. On a fair reading
of the grounds of detention, we must hold that the said
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confessional statement is not the solitary document or
circumstance considered by the Detaining Authority. The
grounds of detention has referred to the F.I.R. in Crime
No.2348 of 2015 under Sections 341, 294(b), 323, 384 and
506(II) I.P.C. read with Section 4 of Tamil Nadu Public
Property (Prevention of Damage and Loss) Act; and the
background in which the said case was registered
including the seriousness of the offence. Reliance has
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been placed on the fact that during the investigation of
the case, the Assistant Commissioner of Police was
informed that the detenu who was absconding in the ground
case, was apprehended in connection with another crime.
After taking orders of the Assistant Commissioner of
Police, Thiru N. Elangovan, Inspector of Police, Law and
Order, J4 Kotturpuram Police Station arrested the detenu
on 2.11.2015 at 21.30 hrs. After his arrest he was
st
brought to Chennai. On 31 November, 2015 at 13.30 hrs.
while police party along with the accused were returning
to Chennai, opposite to Central Polytechnic the detenu
informed that he wanted to attend to nature's call. When
he was permitted to go, he pushed the police and jumped a
locked gate and tried to escape from the police custody.
In his attempt to flee, he fell down on his knee and
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sustained injuries. The police party after chasing him
once again arrested him. They took him to a nearby
Government Royapettah Hospital for treatment as out
patient. The detenu was later on handed over to the
Inspector of Police, J4 Kottupuram Police Station, who in
turn recorded the alleged voluntary confessional
statement. The grounds of detention also advert to the
fact that the detenu was arrested in connection with
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other serious offences under Section 294(b), 341, 323,
336, 397 and 506(ii) I.P.C. but was released on bail.
The Detaining Authority has recorded his subjective
satisfaction that the detenu is likely to be released on
bail even in connection with the ground case where he was
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on remand till 17 December, 2015; and if released on
bail, he may indulge in similar prejudicial activities
affecting the maintenance of public order. Suffice it to
observe that the alleged confessional statement is not
the sole basis for forming subjective satisfaction of the
Detaining Authority. The Detaining Authority has
considered all aspects of the matter and taking totality
of circumstances into account deemed it necessary to
detain the detenu in exercise of powers under Section 3
of the 1982 Act. Further, the fact that the alleged
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confessional statement does not bear the signature of the
detenu will be of no avail, for doubting the subjective
satisfaction recorded by the Detaining Authority. It is
well settled that the Court must be loath to question the
subjective satisfaction reached by the Detaining
Authority. Hence, even this contention also does not
commend to us.
6. The next argument pursued by the petitioner is that
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the copy of the F.I.R. in Crime No.598 of 2015 dated
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18 March, 2015, furnished to the detenu is illegible.
Indeed, the said document is a photo copy of the
original. The first page of the document, however, gives
the necessary description of the offence. The facts
which constituted that offence are noted on the second
page. The second page of the document is somewhat
illegible, being photo stat copy. Significantly, Crime
No.598 of 2015 is not the ground case. The ground case
is Crime No.2348 of 2015. In that sense, the said F.I.R.
at best is a referred to document and not relied upon
document. If so, it is not possible to hold that the
continued detention of the detenu is vitiated. Counsel
for the petitioner, however, placed reliance on the
decision of this Court in the case of Abdul Latif Abdul
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Wahab Sheikh v. B.K. Jha and Another, (1987) 2 SCC 22,
in particular, on the dictum in paragraph 5 thereof. In
that case, the Court was dealing with the efficacy of
procedural requirement and compliances thereof. The
Court noted that the procedural requirements are the only
safeguards available to a detenu since the Court is not
expected to go behind the subjective satisfaction of the
Detaining Authority. It went on to observe that the
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procedural requirements are, therefore, to be strictly
complied with if any value is to be attached to the
liberty of the subject and the constitutional rights
guaranteed to him in that regard. There can be no
quarrel with this proposition. The question is, whether
the F.I.R. in Crime No.598 of 2015 furnished to the
detenu is a relied upon document or only a referred to
document by the Detaining Authority for arriving at his
subjective satisfaction. If it is a relied upon
document, the issue must be answered in favour of the
petitioner. As aforesaid, we find that the subject
F.I.R. is only a referred to document in the grounds of
detention.
7. Reliance was placed by the learned counsel for the
petitioner on State of Tamil Nadu and Another v. Abdullah
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Kadher Batcha and Another, (2009) 1 SCC 333. In
paragraph 7, the Court observed thus:
“7. The Court has a duty to see whether
the non-supply of any document is in any way
prejudicial to the case of the detenu. The
High Court has not examined as to how the
non-supply of the document called for had any
effect on the detenu and/or whether the
non-supply was prejudicial to the detenu.
Merely because copies of some documents have
( sic not) been supplied they cannot by any
stretch of imagination be called as relied
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upon documents. While examining whether
non-supply of a document would prejudice a
detenu, the Court has to examine whether the
detenu would be deprived of making an
effective representation in the absence of a
document. Primarily, the copies which form
the ground for detention are to be supplied
and non-supply thereof would prejudice the
detenu. But documents which are merely
referred to for the purpose of narration of
facts in that sense cannot be termed to be
documents without the supply of which the
detenu is prejudiced.”
8. Reliance was also placed on the decision in the case
of Senthamilselvi v. State of T.N. and Another, (2006) 5
SCC 676. In paragraph 7 of this decision, the Court
observed thus:
“7. There is also no substance in the
plea that the confessional statement of the
co-accused was relied upon, but the copy
thereof was not supplied. The grounds of
detention merely refer to the confession by
the co-accused. That does not form foundation
for the detention. On the other hand it
appears that the detenu himself made a
confession and that was the main factor on
which the order of detention was founded.
There is distinction between a relied upon
document and a document which has been
referred to without being relied upon. The
distinction has been noticed by this Court in
Powanammal v. State of T.N., [(1999) 2 SCC
413] SCC at p.417, para 9. It was observed
as follows:
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"However, this Court has
maintained a distinction between a
document which has been relied upon
by the detaining authority in the
grounds of detention and a document
which finds a mere reference in the
grounds of detention. Whereas the
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non-supply of a copy of the document
relied upon in the grounds of
detention has been held to be fatal
to continued detention, the detenu
need not show that any prejudice is
caused to him. This is because the
non-supply of such a document would
amount to denial of the right of
being communicated the grounds and of
being afforded the opportunity of
making an effective representation
against the order. But it would not
be so where the document merely finds
a reference in the order of detention
or among the grounds thereof. In such
a case, the detenu's complaint of
non-supply of document has to be
supported by prejudice caused to him
in making an effective
representation. What applies to a
document would equally apply to
furnishing a translated copy of the
document in the language known to and
understood by the detenu, should the
document be in a different language.”
9. We fail to understand as to how these decisions will
be of any avail to the petitioner in the backdrop of the
findings recorded above that the copy of F.I.R. furnished
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to the detenu in respect of Crime No.598 of 2015 is only
a referred to document. In the present case, no
grievance about the illegible copy was ever made by the
detenu to any Authority. Strikingly, the detenu has not
made any representation to any Authority much less to
assert that the said document is a relied upon document
and furnishing of illegible copy was fatal. As a result,
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this argument also deserves to be stated to be rejected.
10. That takes us to the last ground urged before us
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about the nonsupply of Government order dated 18
October, 2015. This contention has been raised by way of
application for urging additional grounds. During the
course of arguments, the counsel for the State produced a
copy of the Government Order dated 18.10.2015, the same
reads thus:
“ ABSTRACT
Preventive Detention - Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Cyber law
offenders, Drug-offenders, Forest-offenders,
Goondas, Immoral Traffic Offenders,
Sand-offenders, Sexual-offenders, Slum-grabbers
and Video Pirates Act, 1982 (Tamil Nadu Act 14
of 1982) – Empowering Commissioner of Police,
Chennai under sub-section (2) of section 3 of
the Act – Orders- Issued.
–---------–---------–---------–---------–-------
HOME, PROHIBITION AND EXCISE (XVI) DEPARTMENT
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G.O. (D) No.189 Dated: 18.10.2015.
Read:
1. G.O. (D) No.137, Home, Prohibition and Excise
(XVI) Department, dated 18.07.2015.
Read also:
2. From the Commissioner of Police, Chennai
Letter No.235/S.B.XIII/IS/2015, Dated:
09.09.2015.
–-------------
ORDER
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WHEREAS, the Commissioner of Police, Chennai
has reported that the dangerous activities of
certain anti-social elements such as
Bootleggers, Cyber law offenders,
Drug-offenders, Forest-offenders, Goondas,
Immoral Traffic Offenders, Sand-offenders,
Sexual-offenders, Slum-grabbers and Video
Pirates, besides endangering life and health of
the public are creating alarm and a feeling of
insecurity among the general public, and this
adversely affect the maintenance of public
order;
AND WHEREAS, the Commissioner of Police,
Chennai has requested that in view of the
aforesaid circumstances now prevailing and
likely to prevail in the immediate future in the
local limits of Chennai, he may be allowed to
exercise the powers conferred by sub-section (1)
of section 3 of the Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Cyber law
offenders, Drug-offenders, Forest-offenders,
Goondas, Immoral Traffic Offenders,
Sand-offenders, Sexual-offenders, Slum-grabbers
and Video Pirates Act, 1982 (Tamil Nadu Act 14
of 1982) by invoking sub-section (2) of section
3 of the said Act.
AND WHEREAS, the Government are also satisfied
that having regard to the circumstances now
prevailing and the circumstances likely to
prevail in the immediate future in the local
limits of Chennai it is necessary that the power
to make orders detaining persons under sub
Section (1) of section 3 of the Tamil Nadu
Prevention of Dangerous Activities of
Bootleggers, Cyber law offenders,
Drug-offenders, Forest-offenders, Goondas,
Immoral Traffic Offenders, Sand-offenders,
Sexual-offenders, Slum-grabbers and Video
Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)
shall be exercised by the Commissioner of
Police, Chennai for a future period of 3 months;
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NOW, THEREFORE, in exercise of powers
conferred by sub-section (2) of section 3 of the
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Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Cyber law offenders,
Drug-offenders, Forest-offenders, Goondas,
Immoral Traffic Offenders, Sand-offenders,
Sexual-offenders, Slum-grabbers and Video
Pirates Act, 1982 (Tamil Nadu Act 14 of 1982),
the Governor of Tamil Nadu hereby directs that
the power to make orders detaining the
Bootleggers, Cyber law offenders,
Drug-offenders, Forest-offenders, Goondas,
Immoral Traffic Offenders, Sand-offenders,
Sexual-offenders, Slum-grabbers and Video
Pirates under sub-section (1) of section 3 of
the said Act shall be exercised by the
Commissioner of Police, Chennai in the Chennai
City Metropolitan area as specified in the
notification issued under section 8 of the Code
of Criminal Procedure, 1973 (Central Act 2 of
1974) for a future period of 3 months with
effect from the date of issue of this order.
(BY ORDER OF THE GOVERNOR)
APURVA VARMA
Principal Secretary to Government
To
The Commissioner of Police, Chennai City, Chennai-600
007.
The Director General of Police, Tamil Nadu,
Chennai-600 004.
The Additional Director General of Police (Law &
Order), Chennai-600 004.
The Commissioner of Prohibition & Excise, Chepauk,
Chennai-600 005.
The Principal Chief Conservator of Forests,
Chennai-600 015.
The Additional Director General of Police/Inspector
General of Prisons, Chennai-600 008.
The Public (Law & Order) Department, Chennai-600 009.
The Deputy Secretary/ Under Secretary, Law
Department, Chennai-600 009.
The Home, Prohibition & Excise (IX), (X), (XI),
(XII), (XIII), (XIV) and (XV) Department,
Chennai-600 009.
S.F./S.C.
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//FORWARDED/BY ORDER//
Sd/- 18.10.2015
Section Officer”
11. To examine the correctness of the arguments, we deem
it apposite to reproduce the detention order, in which
reference is made to the above document. The same reads
thus:
“No.1227/BCDFGISSSV/2015 Dated: 04.12.2015
DETENTION ORDER
Whereas, I, T.K. Rajendran, IPS,
Commissioner of Police, Greater Chennai Police,
am satisfied that with respect to the person
known as Thiru Murugan, male, aged 26, S/o.
Easkki Muthu, No.10/23, Subash Street,
Thandiarkulam Village & Post, Tirunelveli
District is a Goonda as contemplated under
section 2(f) of the Tamil Nadu Act 14 of 1982
and that with a view to preventing him from
acting in any manner prejudicial to the
maintenance of public order, it is necessary to
make the following order.
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Now, therefore, in exercise of the power
conferred on me by sub section (1) of section 3
of the Tamil Nadu Prevention of Dangerous
activities of Bootleggers, Cyber Law Offenders,
Drug Offenders, Forest Offenders, Goondas,
Immoral Traffic Offenders, Sand Offenders,
Sexual Offenders, Slum Grabbers and Video
Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)
read with orders issued by the Government in
G.O.(D) No.189, Home, Prohibition and Excise
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(XVI) Department dated 18 October, 2015 and
under subSection (2) of Section 3 of the said
Act, I hereby direct that the said Goonda Thiru
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Murugan, S/o. Esakki Muthu be detained and kept
in custody at the Central Prison, Puzhal,
Chennai.
Sd/
Commissioner of Police
Greater Chennai Police,
Chennai7
Given under my hand and seal of this office,
th
on this 4 day of December, 2015”
12. From the plain language of the impugned detention
order, it is seen that the stated Government Order dated
th
18 October, 2015 is an order issued by the State
Government authorizing or delegating power to the
Commissioner of Police, Chennai, to issue order under
Section 3(2) of the Act of 1982. The question is,
whether it was mandatory for the Detaining Authority to
supply copy of this Government order to the detenu. The
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order having been issued in exercise of powers conferred
under Section 3(1) of the Act of 1982 and being a
statutory order has nothing to do with the grounds of
detention. What is imperative is to supply all the
documents which are relied upon by the Detaining
Authority for forming subjective satisfaction for the
purposes of Article 22(5) of the Constitution of India.
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The Government order, however, is regarding the
delegation of power to the Commissioner of Police to
issue detention order. The validity of that order has
not been challenged by the petitioner. In other words,
the power of the Commissioner of Police, Greater Chennai
Police, Chennai to pass a detention order, is not put in
issue. The said Government order is not relevant for
forming subjective satisfaction by the Detaining
Authority. The grounds of detention are about the
prejudicial activities in which the detenu had indulged
in the past; or in the view of the Detaining Authority
the detenu has the propensity to indulge in similar
prejudicial activities even in future. That is the
quintessence for exercising power to detain any person.
Suffice it to observe that the subject document, not
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being a relied upon document in the grounds of detention
or for forming subjective satisfaction by the Detaining
Authority, failure to furnish copy thereof to the detenu
does not vitiate the action taken by the Detaining
Authority nor the continued detention of the detenu. In
our opinion, even this submission is devoid of merits.
13. The counsel for the petitioner, relying on the
decision in R. Kalavathi v. State of T.N. and Others,
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(2006) 6 SCC 14, lastly contended that the subjective
satisfaction of the Detaining Authority is founded only
on solitary ground case being Crime No.2348 of 2015.
According to him, an action under the Act of 1982 can be
initiated or resorted to only against habitual offenders
and not where it is a case of solitary crime. The
argument, though attractive at the first blush, deserves
to be stated to be rejected. The ground of detention
must be read as a whole. No doubt, it principally relies
on the ground case being Crime No.2348 of 2015 but also
adverts to other serious offences registered against the
detenu and pending trial, such as Crime No.598 of 2015
registered at D.6 Anna Square Police Station; Crime
No.3/2015 registered at Aavudaiyar Koil Police Station
and including the conduct of the detenu when he tried to
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escape from police custody. The totality of the
circumstances having been taken into account by the
Detaining Authority, there is no reason to doubt the
subjective satisfaction arrived at for issuance of the
impugned detention order, in the fact situation of the
present case. Notably, this ground has been urged in the
rejoinder submissions. Accordingly, even this
contention does not deserve any further consideration.
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14. For the above reasons, this petition must fail and
is dismissed.
................................J.
[ ]
ANIL R. DAVE
................................J.
[ A.M. KHANWILKAR ]
NEW DELHI;
NOVEMBER 17, 2016.
JUDGMENT
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