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Judgment
Arunachalam, J.—These three habeas corpus petitions are disposed of together by a common order, though the fact remains, that the
detenus concerned are involved in totally different transactions and there is no connection whatever, interlinking these three habeas corpus
petitions. However, we have chosen to pronounce a consolidated order, to spotlight the various infirmities committed, either by the Detaining
Authorities or the State Government, which could have been easily avoided, only if a little care had been bestowed.
While disposing of these three habeas Corpus petitions, we intend referring to dozens of earlier habeas corpus petitions, disposed of by one or
other of the Division Benches of this Court, specifically drawing the attention of the State Government, to serious lapses, found in the disposal of
representations, which were easily avoidable, only if some interest had been attached, bearing in mind, that law is clear that the liberty of a citizen
will have to be given top priority and, therefore, representation either forwarded but he detenue or on his behalf, must be attended to with a sense
of urgency and promptitude.
There is a Tamil proverb, very well known, that if you go on inflicting blows, on the grind stone "" "" even that will move
However, that saying appears to be no longer relevant, for inspite of several observations made by this Court, on countless occasions, pointing out
how certain infractions found, could easily be remedied, no remedial action has been taken, and it appears apparent, that dicta, by courts, is
treated akin to pouring water into empty sieves.
H.C.P. No. 1178 of 1993: Petitioner Maria is the wife of detenue John, who has been detained as a ''bootlegger'' under Tamil Nadu Act 14 of
1982, in pursuance of an order dated 24.5.1993 passed by the first Respondent, District Magistrate and Collector, South Arcot District at
Cuddalore with a view to preventing the detenue from acting in any manner prejudicial to the maintenance of public order and health.
It has almost now become a ritual, in most of the habeas corpus petitions, not to state the facts, for an avoidable lacuna in procedure persists,
inspite of highlighting of the same, and bringing them to the notice of the authorities concerned, by forwarding copies of our orders, through the
learned Public Prosecutor. This is one more of such cases, where narrating of fuels, which led to the passing of the impugned order or detention,
will be totally unnecessary. Petitioner forwarded a representation on behalf of her husband, by ordinary post on 27.6.1993. Since no
communication was received either by the Petitioner or her husband regarding disposal of the said representation, Petitioner''s counsel contended,
that there has been an extraordinary delay in consideration of the representation, which, is undated appears to have been, not yet disposed of.
Mr. S. Shanmughavelayudham, learned Additional Public Prosecutor, after obtaining instructions from the officials of the State Government
present in court, submitted yesterday (8.11.1993) afternoon, that the representation sent on behalf of the detenu by the Petitioner had been
separately dealt with in File No. 20500/93 and that remarks are awaited from the District Collector. When we called for the concerned
representation file we were told yesterday, that two different files are maintained in respect or preventive detention orders and that the other file,
referable to representation of the detenu, was not readily available. We afforded some time to the officials of the State Government to produce the
representation file before us. We were informed at the fag end of the day, that the concerned woman clerk was on leave and, therefore, the file
could not be produced. We were rather amazed, that a file relating to preventive detention, which must be readily available at any point of time,
more so when the habeas corpus petition challenging the detention, had appeared in the list of this Court, even a few weeks ago, had not been
produced before us, for some reason, not appealing to us. Government work cannot come to a stand-still merely because an Assistant chooses to
proceed on leave. However, we were inclined to afford one more opportunity to the State Government to produce before us, the other file,
relating to disposal of representation forwarded on behalf of the detenu, by his wife.
This morning a register, christened as ""Representations of 1993"" P & D XII Section was placed before us. Learned Additional Public
Prosecutor specifically pointed out S1. No. 239 in a particular page of the register, not numbered, which is stated to concern the detenu involved
in this habeas corpus petition. This entry indicates that the representation of the detenu was received on 7.7.1993. We find an entry in the last
column, under the heading ""Remarks (here enter reminders and replies to reminders)"" an affixation of initials by some official, on 15.8.1993 which
was a holiday, that being ""Independence Day"". Anyhow we are happy, that a very duty conscious official, had not only attended the Secretariate
but had also put in his initials on 15.8.1993. On the basis of this initials, we were informed, that the representation of the detenu stood disposed of,
on 15.8.1993. This contention we are not prepared to accept, for, as already stated, the last column does not relate to disposal of representations
at all.
Further, when a representation was made on behalf of the State yesterday after-noon, that still remarks were awaited from the District
Collector, it would be an astonishing feat, that the representation had already been disposed of on 15.8.1993, within the awareness of the
authority. When a pencil written endorsement in a piece of paper, produced before us by the teamed Additional Public Prosecutor, was referred to
him back again, to explain how this representation could have been disposed of on 15.8.1993, when the stand taken yesterday was different, be
contended, on the basis of information made available to him by the officials present in court, that the pencil entry, related to a date prior to
15.8.1993, and it had nothing to do with the representation file at any later point of time. This obviously cannot be correct, since the Memo reads:
Prohibition and excise (XII) Section may be requested to put up the connected record relating to the detention of Thiru John in connection with the
HCP No. 1178/93 filed by the detenu. If the record to not available, that section may he requested to indicate the confirmation of G.O. No. and
date.
This note has been signed on 16.8.1993 and the pencil endorsement is subsequent to this date. Note, of course, is undated.
However, to avoid any ambiguity, we directed the learned Additional Public Prosecutor to place before us the representation file, so that we can
discern for ourselves, the exact date on which para-war remarks were received by the State Government from the District Collector and the
manner and date on which the file was circulated to all the authorities concerned in the Secretariat, leading to its disposal. This has a very relevant
bearing, for it is the definite case of the Petitioner, that till to-day no communication has been served on him or his wife, with regard to disposal of
his representation. We come across, quite often, belated service of communications on the detenus, after rejection of representations, but very
rarely complaints are made of non-service of such communications. The claim of the Petitioner, that he had not been informed about the disposal of
his representation cannot be just slighted away. Even to-day, the representation file was not placed before us by the State Government, and we
were informed, that the said file could not be traced and all that could be placed for our scrutiny would be the representation register, regarding
which we have already made a reference earlier in this order. The file, which could not be get at yesterday 8.11.1993 afternoon, since an Assistant
working in the Secretariat was on leave, has overnight given room for a new theory, that the representation file itself is not available and could not
be traced. We cannot, but, be shocked at the manner in which a preventive detention file is sought to be not safeguarded at the Government
Secretariat. These files relate to liberties of citizens, who are put behind bars, without trial and any procedural defect is found to enure in their
favour and there cannot be a difference of opinion, that there is a clear demarcation between preventive and punitive law. We are able to entertain
an impression, in view of the large mass of preventive cases we have heard, that if something inconvenience would surface by producing records, a
reply is almost always trotted out, that the file is not tracer able. On these serious infirmities, we have no alternative, other than holding, that the
representation sent on behalf of the detenu on 27.6.1993 and admittedly received on 7.7.1993, has not yet been disposed of. This reasonable
inference is Inescapable, for material contra has not been placed for our scrutiny, in the guise of missing of file.
Missing of a file in the Government Secretariat is a very serious matter. We specifically questioned the learned Additional Public Prosecutor, if
any complaint had been preferred about the missing of a very important file in the Government Secretariat and the answer, after obtaining
instructions from the officials present in court, was that only hereafter action may have to be initiated. It is not known as to how the officials
concerned can take such a serious matter so lightly, as though it is a matter of fact routine. ''
While we are dealing with these habeas corpus petitions, we are bound to mention, that from the beginning of August, 1993, in dozens and
dozens of habeas corpus petitions preferred, challenging preventive orders passed under Tamil Nadu Act 14 of 1982, we have been constantly
observing, that representations of the detenus have not been audited with promptitude they deserved, and that they have been just filed up in some
corner of the Secretariat or at the office of the District Collector, as though they were irrelevant papers. We were under the impression, that by
forwarding a few of our orders to the authorities, through the learned Public Prosecutor, some remedial measures would promptly surface, but we
are constrained to note that with impunity either status quo is maintained or more serious infirmities, are allowed to be committed. In one of those
habeas corpus petitions disposed of by another Division Bench of this Court, to which one of us (Arunachalam, J.) was party, this Court directed
the State Government to pay a compensation of Rs. 5,000/- to an orphanage and have it collected from the erring officials, since in the opinion of
this Court, compensation could not have been directed to be paid to the detenu therein, who was a bootlegger, whose record of offences under
the Tamil Nadu Prohibition Act, was rather startling, that was a case, where the Detaining Authority, the District Collector, did not forward his
para-war remarks for months together inspite of reminders having been forwarded by the State Government. In a series of habeas corpus
petitions, from yet another district, we found the district authorities unabashedly stating, that they had not received telex messages from the State
Government, though this Court was satisfied, that every time telex message was sent in duplicate, one to the District Collector and the other for his
office use. In that particular District found that any communication forwarded by the State Government, calling for para-war remarks, was just
treated as an ordinary petition, by any villager, for which the Collectorate was not usually attaching any importance.
Then, we found in several habeas corpus petitions, that if a representation was received by the State Government on a particular day, the
officials of the State Government did take their own time, leisurely, to get ready a letter, calling for para-war remarks from the district authorities.
Even overlooking for a moment, that short time, in some cases (longer time taken in many cases) in preparing communications calling for para-war
remarks, we were surprised, as to how such communications could be delayed for a week or ten days, for mere despatch (posting). In almost all
these cases, no explanation was forthcoming, as to why several days, sometimes even two weeks, should have been taken to merely despatch
letters got ready earlier calling for para-war comments. The other side of the story is equally revealing. A District Collector, who happens to be the
Detaining Authority, in view of empowerment by the State Government, does not have any concern whatever, about the communications received
from the State Government calling for para-war remarks. Total slumber is almost evident. Sometimes, the State Government is alert in sending
reminders, one or two each month, calling for para-war remarks. But even then its subordinate, the District Collector, continues to sleep over the
matter and passes on his para-war comments only a few weeks thereafter. We are unable to appreciate as to why the State Government could not
have contacted the District Collectors concerned, over the telephone or through any other swift scientific communication, to impress upon them the
need to forward para-war remarks forthwith. Do not, the State Government and the District Authorities know the law of the land, that
representations of the detenus will have to be dealt with continuously and expeditiously? If they claim, that they are not aware of the said law woe
unto the community at large.
The Supreme Court in the past, did not look with equanimity, even slight delays in movement of the representation file, from table to table, and
a catena of cases are available to pin, point, that even a delay of few days ended in quashing of several preventive orders. Probably, the Supreme
Court itself, after becoming aware, that lethargy and laziness are indispensable in Government activity, thought it fit to give the Governments a little
lee-way and chose to condone administrative delays, to a reasonable extent, when explanations were forthcoming. Probably, this little concession
afforded by the Supreme Court, has been mistaken by the State Government, which appears to be under the impression, that under the guise of
administrative delays, several months could be allowed to be wiled away, without any explanation being offered, as to the cause for such delays.
Once, some cause is sought to be shown in explanation of delays, that had occurred, it will always be possible for the Courts, to appreciate the
hindrances, that the State Government had, in dealing with the representation file, and if the stand was appealing, orders of preventive detention
could still be upheld. No State Government can afford to represent before Court, that they have no explanation, for several months delays, in
disposing of representations and still claim, that administrative delays, will facilitate a lee-way, to get over such enormous lapses.
Sometimes, we are constrained to entertain an impression, that the State Government or its officials get screwed up to dispose of
representations quickly and effectively in particular cases of preventive orders, whereas usual lethargy will be present, in all other cases. If activity
quick enough is possible in a few cases, it is not known, why a similar attitude, could not have been adopted in other cases. It almost appears to be
a certain possibility, that the State Government is choosing to invoke preventive law most often, to avoid prosecuting the offenders punitively. Once
the State Government chooses to take recourse to preventive law, it is duty bound, to follow procedural mandates. If for any reason, the State
Government is unable to follow the procedural mandates; better not use, the preventive law at all. Another Division Bench of this Court, has
already expressed the view, that it prima facie appeared, that the State Government is not worried if preventive orders were set aside by this
Court, purely due to procedural lapses which could have been avoided, for they are quite satisfied, that the persons preventively detained have
already served a few months in prison by them. This attitude, of course, to say the least, cannot, but, be condemned.
In a few cases, postal acknowledgments are produced by counsel for the detenus, to impress upon this Court, that representations had not
only been forwarded to the State Government, but had also been received by the latter. Quite often, State Government, would inform this Court,
that such representations were, not available. However, they would admit, that the person who had signed the acknowledgment produced by the
detenu, was in employment of the State Government and he was the person normally in charge of receiving communications, addressed to the
State Government, by registered post or otherwise. Once an employee of the State Government gets authorised to receive representations, and
affix his signature in acknowledgment, the State Government ought to find out, as to the nature of communication, that had been received from the
addressor, correlatable to the acknowledgment. As long as such correlation is not even being attempted an inference is inescapable, that the detenu
has, in fact, sent a representation, which had disappeared from the Secretarial. Such disappearance would have normally surprised us, but when
we have become aware, that even whole files do miss from the Secretariat, a letter or two missing from the said place, seems to be something not
very unusual, to which, even the State Government may not attach any importance.
There are certain other cases, where documents, which could not have come into existence, on the date on which the order of detention was
passed, are sought to be served on the detenu, as though they had been considered, while arriving at the subjective satisfaction, to detain.
Obviously, an impossibility, is claimed to have been performed. We can visualise, that to err is human, but when such errors become a course of
conduct, there is some serious infirmity somewhere which unless remedied on a war-footing basis, is bound to affect the very system, of justice
delivery. It appears, that this cancerous disease is spreading to the roots and unless these roots are cut and removed forthwith, probably there can
be no redemption at all.
Initially, we had decided, to list several habeas corpus petitions with their respective numbers, in this order, to make it known, that on the sole
ground of laxity in disposal of representations by the State Government, this Court was constrained to allow dozens and dozens of habeas corpus
petitions. Then we decided, that such an exercise will not be needed, since if we attempt to give those numbers, commencing from August, 1993
and the reasons for setting aside all those preventive orders, they themselves may run to several pages, which cannot but lead to wastage of
stationery. However, we are bound to make an observation, that dozens and dozens of cases have been allowed, on the sole ground of huge and
unexplained delays in the disposal of representations. As a matter of fact, sometimes we used to wonder, whether cyclostyled forms, could be
used to pronounce our orders, so that only the dates could be filled up, for, the ultimate result, is so well known not only to the detenus but also to
the State itself. There is also lurking feeling, that infirmities available in the preventive orders of detention, are leaked out to the detenus themselves,
or, to their kin, so that information, which could not have been normally available to the detenus, get reflected, when arguments are advanced. We
are so anguished, that we felt, that it was our duty to put them all in writing, so that at least now there may be an impact, at the place where it must
have an impact, so that a hopeful future, would still be in the offing. Preventive law is intended to protect community from the onslaughts of certain
categories of offenders. The object is, that public order will have to be maintained, public health will have to be protected and ecological systems
must have to be maintained. Such salutary objects, do get thwarted when orders are passed mechanically just for the sake of passing orders, and
even if properly made, they are allowed to be quashed, due to lack of, not following the procedural mandates. On behalf of the Society, this is one
of more clarion call from the Court, and we hope, that it will reach the concerned ears.
Since the representation of the detenu in H.C.P. No. 1178 of 1993 does not appear to have been disposed of till not, he is certainly entitled to
the benefit arising out of it. The impugned order of detention detaining John, husband of Petitioner Maria in H.C.P. No. 1178 of 1993, shall stand
quashed. Detenu is directed to be set at liberty forthwith, unless his detention is otherwise required. This habeas corpus petition is allowed.
The memo placed before us by the learned Additional Public Prosecutor, shall form part of the court record.
H.C.P. No. 1185 of 1993: Petitioner Bose has been detained as a ''bootlegger'' in pursuance of an order dated 18.5.1993 passed under Tamil
Nadu Act 14 of 1982, by the Second Respondent, District Magistrate and District Collector, Tiruchirapalli District, with a view to preventing him
from acting in any manner prejudicial to the maintenance of public order and public health.
20, Though we are inclined to allow this habeas corpus petition, on the ground of non-disposal of the representation of the detenu dated
15.6.1993 till to-day, by the State Government, even though nearly half the detention period has already expired, we are still anxious to point out,
certain grave infirmities which confirm our opinion, that at one stage or other preventive law is made a mockery, by a mechanical approach, to
orders passed under Tamil Nadu Act 14 of 1982. Petitioner Bose was involved in the ground crime on 9.5.1993. He was arrested, and remanded
on the same day and bailed out on 10.5.1993. Detention order was passed on 18.5.1993, but executed only on 6.6.1993 when the detenu was an
inmate, of Central Prison, Tiruchirapalli. We are able to conceive, that the Detaining Authority was aware of the Petitioner having been bailed out,
which needed service of the preventive order on him, at his residential address, through the Inspector of Police, Prohibition Enforcement Wing,
Tiruchirapalli Unit, Tiruchi. However, what is amazing is that even before the execution of the order of detention, communication dated 31.5.1993
addressed to the detenu to his prison address, had been forwarded on the same date, intimating him of the approval of the order of detention, on
27.5.1993. It is quite possible to visualise, that a detention order passed by the empowering authority will have to be approved within the fixed
statutory period, but that does not mean, that even without ascertaining whether the order had been executed, or not a mechanical communication
will have to be forwarded to a prison address, where the detenu was not at all incarcerated. The Detaining Authority cannot merely pass an order
of detention, and later not getting himself aware, as to whether it had been executed, for quick execution is also a mandate of law. This approach,
of forwarding a communication to the prison address of the detenu, even before the execution of the impugned order of detention, shows how
casually preventive law, is sought to be enforced, by the State Government. Again, the Supreme Court, has observed A.K. Roy and Others Vs.
Union of India (UOI) and Others, that in order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the
matter of fairness, justness and reasonableness, they considered it imperative that immediately after a prison is taken in custody in pursuance of an
order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the
order of detention and of the fact, that the detenu had been taken into custody. Intimation must also be given as to the place of detention.
However, in the instant case, communication informing the household members of the detenu was prepared only on 18.6.1993 and served on
19.6.1993. We have to recapitulate, that the impugned order of detention was executed on 6.6.1993. Only after 12 days, authorities thought it fit,
to forward a communication to the members of the household of the detenu, which by no stretch of reasoning, can fall within the imperative
immediately, mandated by the Supreme Court. We can always allow a reasonable time for intimation being served on the members of the
household of the detenu, but unreasonableness, especially when time appears to be the essence, cannot be just condoned. There are several other
errors as well in respect of Crime number, date of crime etc., but we do not intend diluting upon them, for even otherwise, as stated earlier, on the
ground of non disposal of representation of the detenu, for over five months, this habeas corpus petition is bound to be allowed.
Here are the dates Representation dated 15.6.1993, bearing the seal of Central Prison, Tiruchirapalli on 16.6.1993, was received by the State
Government on 22.6.1993. Para-war remarks were called for by a letter dated 23.6.1993, Which was however posted only on 28.6.1993, after
a delay of five days. A reminder was sent to the second Respondent, by the State Government on 14.9.1993, nearly 2-1/2 months after initial
request for para-war comments. However, second Respondent would not still wake up from his slumber, for he chose to forward his remarks only
early in November, 1993 and received by the State Government on 6.11.1993. It was conceded by the learned Additional Public Prosecutor that
this representation, is yet to be disposed of. Nearly half the period of detention is over, and if the representation is yet to be disposed of, it is
apparent, that no sanctity whatever is sought to be attached by the State Government, for the preventive orders, it clamps, for, it appears to be
well aware, that due to infirmities created by it, detenus are bound to succeed. On this ground, H.C.P. No. 1185 of 1993 will have to be
necessarily allowed. The impugned order of detention shall stand set aside. Detenu is directed to be set at liberty forthwith, unless his detention is
otherwise required.
H.C.P. No. 1187 of 1993: This is one more habeas corpus petition, which stirs the conscience of this Court, what else can we say, other than
repeating, that this order of detention has been mechanically made by the second Respondent, without even applying his mind to the material
placed before him, to find out if the detenu was involved at all in the ground crime. Petitioner, Elumalai has been detained as a ''goonda'' under
Tamil Nadu Act 14 of 1982 in pursuance of an order of detention dated 23.6.1993 passed by the second Respondent, Commissioner of Police,
Madras City, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
Of course, Detaining Authority has referred to three adverse crimes in which the Petitioner was allegedly involved. All those cases are under
investigation and naturally as far as those three cases are concerned, punitive action has been taken and the need for a preventive order was not
found to be imminent, at that point of time. The ground crime had occurred on 22.5.1993 at 7:30 p.m. There will be no need, to narrate details of
the occurrence proper which had taken place on 22.5.1993, for that can be easily culled out from the grounds of detention. The occurrence has
been described in about two pages of the grounds of detention. Nowhere, the Petitioner is stated to be involved in the ground crime. Not only that,
it was fairly conceded by the learned Additional Public Prosecutor, that no document supplied to the detenu, along with the grounds of detention,
even remotely indicate, participation of the Petitioner in the ground crime, which was the cause for this preventive order being passed against him.
All that the grounds of detention indicate, is that during the course of investigation, Inspector of Police received information that the detenu and
another had surrendered before Judicial Magistrate No. II, Ponneri and stood lodged at Central Prison, Madras. Grounds also state that the
Inspector of Police took them to police custody and surrendered them within two days. During the period of custody, Inspector of Police recorded
their voluntary confessional statements and also seized the knives used in the commission of offence. After checking up the entire documents
supplied to the detenu along with the grounds, Mr. S. Shanmughavelayudham, learned Additional Public Prosecutor conceded, that no material is
available to show that the detenu had surrendered before Judicial Magistrate No. II, Ponneri or that the Inspector of Police had taken him under
police custody and surrendered him before Court two days thereafter. Alleged confessional statement of the detenu has neither been placed before
the Detaining Authority nor furnished to the detenu. It is not known as to how a person, admittedly, not involved in the ground crime has been
detained preventively, without any material whatever against him, except that he was involved in three adverse cases and had surrendered before
Judicial Magistrate No. II, Ponneri and that too certainly not in relation to the ground crime, since that position stands admitted. This preventive
order appears to be a text-book example of what a preventive order ought not to be. If only the Detaining Authority had perused the material
placed for his scrutiny, he would have easily found out, that no connecting link whatever existed between the detenu and the crime. We say this
much, and nothing more. The impugned order of detention shall stand set aside. Detenu is directed to be set at liberty forthwith, unless his detention
is otherwise required. This habeas corpus petition is allowed.