G. Veera Pillai vs The State of Tamil Nadu and Others

Natarajan, J.—Both the writ petitions are connected and therefore being disposed of by a common order.

Veera Pillai, the petitioner in both the petitions, seeks the issue of a writ of habeas corpus for securing the release of his son V. Dhanapal from custody alleged by him to be unlawful in nature. The earlier petition in Writ Petition No. 3035 of 1982 was filed on 12th April,1982 and came up for orders in 13th April, 1982. Rule Nisi was ordered to the Respondents returnable on 19th April, 1982. In the meanwhile, the District Magistrate, Thanjavur, passed an order of detention against Dhanapal under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, drug-offenders, goondas, immoral traffic offenders, and Slum-Grabbers Act, 1982 (Tamil Nadu Act XIV of 1982) (hereinafter referred to as the Act) on 16th April,198 and in pursuance of the said order the detenu is alleged to have been taken into custody and kept detained in the Central Prison at Tiruchirapalli. To challenge the validity of the said detention order, the Petitioner has filed the second petition, namely, Writ Petition No. 3586 of 1982.

The averments of the Petitioner in the two petitions are identical and are as follows: On 4th April, 1982 at 8 p.m., the Inspector of Police, Thanjavur town (first Respondent) arrested Dhanapal at Ranojiappa Street in Thanjavir town, The arrest was effected without any warrant and no reason was disclosed for the arrest. On the other hand, the arrest was effected to settle scores with Dhanapal, as he had earlier given a private complaint against the Inspector alleging torture and sustainment of injuries. On the next day of the arrest, Dhanapal was not produced before the Magistrate for remand- Dhanapal was illegally kept detained in police custody and he was beaten and tortured and his head was shaved and similarly his mustache and eye-brows Were also shaved and after being disfigured thus Dhanapal was manacled and paraded in the bazaar street on 5th April,1982. The Petitioner tried his best to meet his son, but he was prevented from doing so. He thus filed Writ Petition No. 3035 of 1982 for the issue of a writ of (SIC) corpus for causing the (SIC) of Dhanapal in Court. Coming to know of the fling of the petition, the Respondents have (SIC) to (SIC) order of detention against him under the Act and made it appear as if he was arrested only on 16th April, 1982. The Petitioner challenges the valicity of the (SIC) of detention on the ground that the Act itself is (SIC) that in any event, the grounds on which the order of detention has been passed cannot provide any hypothesis for the order being passed and that the long delay in furnishing the ground and considering the representations made by Dhanapal vitiates the detention order.

In support of his contention that Dhanapal was taken into custody on 4th April, 1982 itself, the Petitioner has filed two supporting affidavits, one sworn to by Thiru (SIC). B.A., B.L., Member of Parliament, representing Thanjavur Partis-mentray Constituency and another sworn to by one Kothandapani residing at Dr. Ambedkhar Nagar, Sivaji Nagar, West Thanjavur.

Respondents 1 to 3 have filed counter-affidavits. The first Respondents has stated that Dhanapal was not taken into custody on 4th April 1982; but was arrested only on 16th April, 1982 in pursuance of the order of detention passed against him by the second Respondent.

The second Respondent has filed a counter-affidavit con-tending that on the basis of the materials brought to his notice he was subjectively satisfied that Dhanapal was indulging in prejudicial activities affecting public order and in order to subserve the maintenance of public order he considered it necessary to pass the order of detention against Dhanapal under the Act. He has further stated that his order dated 16th April, 1982 was duly (SIC) and Dhanapal was taken into custody only on that day.

The third Respondent has filed a counter-affidavit that Dhanpal was brought to the Central prison, (SIC) not earlier.

To meet the supporting affidavit of the Petitioner, the Respondents have obtained an affidavit from Thiru G. Subramaniam, the Deputy Superintendent of Police, Crime Record Bureau, Thanjavur. Therein be baa averred that Thiru Singaravadivelu, M.P. (SIC) him to find out, if Dhanapal had been taken into custody on 4th April, 1982 and he made enquires and found that the police were on the look out for Dhanapal, but he had not actually been taken into custody. It is in the light of these materials, the petition have to be considered and disposed of.

Though the Petitioner has raised a contention in the affidavit that the Act is ultra vires the Constitution and as such, the detention order passed under the Act is non sustainable, Mr. G. Subramaniam, learned Counsel for the Petitioner conceded that he will not be able to canvass that contention any longer in view of the decision of this Court in Writ Petition Nos. 1082, 1131, 1179, 1199, 1824 and 1825 of 1982 (B. Savithri Ammal v. State of Tamil Nadu by Secretary to Government, Home Department and others judgment, dated 3rd May 1982). He. therefore, confined his attack on the detention order to the following three grounds: (1) The detenu was taken into custody as early as on 4th April, 1982 without any order for his arrest or detention and hence the subsequent order of detention passed in 16th April 1982, cannot validate the earlier detention. In any event in the long delay in furnishing the grounds of detention and in considering the representations of the detenu, if the period is reckoned from 4th April, 1982, affects the validity of the order and on that ground the petition must be allowed. (2) The order does not specify the exact category in which the detenu has been placed under the Act, viz, as Bootlegger or Goonda or Slum-Grabber, etc., and hence, the order suffers from the defect of vagueness. (3) The instance mentioned in the grounds of detention relate to pending cases and the detenu can be effectively dealt with by prosecuting those cases instead of being detained without trial under the provisions of the Act.

The second and third contentions of the Petitioner are devoid of substance and can be easily discountenanced. Though the detention order does not specifically refer to the detenu being a Goonda, the instances referred to in the grounds give no-room for doubt the category in which the detaining authority had placed the detenu for passing an order of detention under the Act: A reading of the grounds clearly go to show that-the detenu was considered a dangerous goonda of Thanjavur and in order to prevent him doing further harm to the public, he was sought to be detained under the Act. Moreover, the Inspector of Police has categorically stated in his affidavit to the detaining authority that the detenu was a dangerous goonda of Thanjavur and his being at large pose a serious threat to the maintenance of public order. A copy of the affidavit of the Inspector has also been furnished to the detenu and it is therefore futile for him to contend that he was not aware of the exact reason for which he was sought to be detained by the second Respondent.

As regards the third ground, the mere pendency of cases against the detenu is no ground for holding that he cannot be proceeded with under the Act and made to suffer preventive detention. The position is by now well established and we need only refer to two decisions of the Supreme Court viz., M.S. Khan v. C.C. Bose and Kurc Saha v. State of Bihar (SIC). We are therefore unable to sustain the second and third criticisms levelled against the detention order by the Plaintiffs Counsel.

What, survives for consideration is the-first ground of attack, viz., that Dhanapal was unlawfully taken into custody even on 4th April, 1982 and kept in detention and in order to cover up that fact the impugned order has been passed on 16th April,1982. On behalf of State it was strenuously contended that the detenu was not taken into custody on 4th April, 1982; but was arrested only 16th April, 1982. We are unable to accept the contention of the State in this behalf for a variety of reasons. In the first place, the petitioner has solemnly affirmed in the affidavit filed by him in both the petitions that his son Dhanapal, was taken in to custody at 8:00 p.m., on 4th April, 1982 itself. The Petitioner is not likely to have sworn to a false (SIC) in his affidavits. Secondly, we have the affidavit of two independent persons, viz., Thiru Singaravadivelu, a Member of Parliament and Kothandapani. Thiru Singaravadivelu has stated that on the night on 4th April, 1982, the Petitioner came and represented to him that his son had been taken into custody by the police without any reason and that be may intercede and secure the release of his son. Thereupon, be rang up the Deputy Superintendent of Police (Rural) Thanjavur, who was in additional charge of the Town Division also and the Deputy Superintendent of Police told him that Dhanapal had been taken into custody in connection with a case involving an offence, u/s 506 Part II, Indian Penal Code and he would be produced before the Magistrate the next day. The Deputy Superintendent of Police, has in his turn, filed an affidavit and stated that he was no doubt contacted by the Member of Parliament but he did not tell him that Dhanapal had been taken into custody , but on the other hand, he had told him that the police were on the look-out for Dhanapal in connection with a case registered against him. We do not feel called upon to render a financing as to whether the affidavit of Thiru Singaravadivelu or the affidavit of the Deputy Superintdent of Police, is to be preferred, for the simple reason that even without going into the disputed portion of Thiru Singaravadivelu''s affidavit, there are sufficient materials for us to accept the Petitioner''s case that his son was taken into custody on the 4th April, 1982, itself. The affidavit of Thiru Singaravadivelu reveals that at about 9 p.m., on 4th April, 1982, the Petitioner came and told him that his son had been taken into custody by the police. Unless such a thing had happened , the Petitioner would not have gone and made such a representation to the Member of Parliament. Then the Member of Parliament bad acted on the representation made to him by the Petitioner, I proved by the affidavit of the Deputy Superintendent of Police himself, because he admits that the Member of Parliament contacted him and asked him about the where-abouts of Dhanapal. Secondly Thiru Kothandapani has stated in his affidavit that he was kept in the police lock-up on 5th April, 1982 and at that time, Dhanapal was also kept in the lock-up. We would normally not attach much importance to the affidavit of Thiru Kotbandapani. But it is seen from the supplemental counter-affidavit filed by the Respondent that Thiru Kotbandapani was taken into custody on 5th April, 1982 and sent for remand on 6th April, 1982. This admission gives credence to the statement of Thiru Kothandapani that along with him Dhanapal was also kept in the lock-up on the 5th April, 1982. Thus, the two supporting affidavits lend credence to the Petitioner''s contention about his son being taken into custody on the 4th April 1982 itself. The third circumstance, which probabilises the Petitioner''s case is that on 12th April, 1982 itself, he had filed Writ Petition No. 3035 of 1982 and sought the issue of a writ of habeas corpus to secure the release of his son. As already stated, he has averred in the affidavit that his son was taken into custody on 4th April, 1982 itself. Hence, the possibility of the first Respondent being motivated to move the second Respondent to pass the order of detention cannot be ruled out. We are therefore of opinion that the order of detention has been passed after considerable delay after the detenu had been taken into custody. Learned Advocate-General argued that the Petitioner has not attributed mala fides to the second Respondent in the passing of the detention order and even assuming for argument''s sake that the detenu had been taken into custody on 4th April, 1982, the second respondent may not have been aware of that fact and hence, his order, if found otherwise valid, is not liable to be struck down. We are not persuaded by this argument. Though the second Respondent may have applied his independent mind and deemed it necessary to pass the impugned order, the detention of the detenu cannot be split up into compartments and held that inspite of the earlier detention being unlawful, the subsequent detention from 16th April, 1982 is perfectly in accordance with law. Moreover, the furnishing of grounds long after the detention on 4th April, 1982 and the delayed rejection of the representation of the detenu will also have an adverse impact on the validity of the detention order. We are therefore of opinion that the first ground attack on the validity of the detention order is well founded. For this reason, we will have to allow Writ Petition No. 3586 of 1982. Consequently, we allow the petition and make the rule nisi absolute. We direct the detenu to be set at liberty forthwith. In view of this order, no separate orders are called for in Writ Petition No. 3035 of 1982 and the same will stand dismissed.