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Judgment
R. Subbiah, J.—The petitioner herein challenges the impugned order of detention dated 03.10.2008 detaining her as an ''Immoral Traffic
Offender'' as contemplated 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.
Learned Counsel for the petitioner submitted that the detention order dated 03.10.2008 is liable to be set aside on the following grounds:
(1) In the order of detention, the name of the husband of the detenue was mentioned as ''Adhisesh'', but in the adverse case relied upon by the
detaining authority, the name of the husband of the detenue was mentioned as ''Prasad''. Even in the confession statement the detenue has
mentioned that she is the wife of �Prasad�. This vital contradiction, with regard to the mentioning of the name of the husband of the petitioner,
was not considered by the detaining authority. This non consideration of vital contradiction by the detaining authority would go to show that the
detention order has been passed without application of mind by the detaining authority in passing the order.
(2) The Tamil version of the documents in page Nos. 41, 77, 113, 114, 115, 146, 151, 163 to 173, 176, 177, 178, 179, 191 and 192 in the
booklet served on the detenue are not legible and readable. Though a request was made in the representation dated 25.10.2008 to furnish a legible
copy of the said documents, to enable the detenue to compare the same with the copy or booklet furnished to her in her mother tongue, namely,
Kannada, the said request was not acceded to by the detaining authority. Therefore, on this account also, a great prejudice has been caused to the
detenue, in violation of Article 22(5) of the Constitution of India.
(3) Several documents furnished in the Tamil booklet at page Nos. 35, 36, 39 to 40, 43, 47, 51, 55, 59, 63 t0 66, 71, 73 and 137 have been
furnished once again in page Nos. 37, 38, 41, 42, 45, 49, 53, 57, 61, 67 to 70, 79, 81 and 139 of the same booklet. This repetition of documents
found in the Tamil version was carried on to the Kannada version also. This aspect of repetition of the same documents found in the booklet
furnished to the detenue both in Tamil and Kannada would go to show that the detaining authority had passed the order of detention without
properly perusing the documents. Hence, the order of detention is liable to be set aside on the ground of non-application of mind by the detaining
authority.
(4) The copies of certain vital documents and legible copies for the illegible documents found in certain pages of the booklet were not furnished to
the detenue in spite of a request made by her through a representation. Hence, the non-supply of those documents to the detenue is fatal to the
detention. In this regard, the learned Counsel for the petitioner placed reliance on the judgment reported in P. Muthuswamy v. State rep. by the
Secretary to Government etc. and Anr. 2000-1 L.W.(Crl.) 27.
(5) Though it has been stated in the grounds of detention that the adverse case in C.C. No. 8372 of 2004 is pending for trial, no material has been
placed before the detaining authority to show that the said case is pending. Hence, no proper subjective satisfaction was arrived at by the detaining
authority while passing the order.
(6) The adverse case was registered in the year 2004 as against the detenue under Crime Nos. 43 to 50 of 2004 for indulging in prostitution. But,
the ground case was registered in 2008 for running a brothel house by keeping the girls in cars and calling the public to indulge in prostitution. The
offence under the adverse case and in the ground case is totally unconnected. Under such circumstances, the conclusion of the detaining authority
that the detenue is ''habitually'' committing the offence under the Immoral Traffic (Prevention) Act is without any material. Since expression
�habitually� committing the offence of illegal traffic is a vital factor to pass a detention order, the order in question is liable to be set aside on
the ground that the factor of committing the offences ''habitually� is missing.
(7) The statements of the victim girls, numbering 10, were stated to be translated into Tamil from Hindi from the time of arrest of the detenue on
15.09.2008 at 18.15 Hours to 19.00 Hours. The translation of the voluntary statements of the 10 victim girls within a short period of time is highly
doubtful. Moreover, all the statements are identical in nature. This fact was not properly considered by the detaining authority while passing the
order. The physical identification of the victim girls as noted down in the detain order at the time of their arrest have been made cynically and their
identification marks recorded in such a way throw much doubt. This factor is not considered by the detaining authority while passing the order of
detention.
(8) The arrest of the detenue was not intimated to her relatives. Hence, this is a violation of the guidelines stipulated by the Apex Court in D.K.
Basu v. State of West Bengal 1997 SCC (Crl.) 92 and on that ground also, the order is liable to be set aside.
(9) There is a delay in considering the representation dated 25.10.2008. Though the order of rejection was passed on 21.11.2008 the same was
served on the detenue only on 28.11.2008. Therefore, there is an inordinate delay in serving the rejection order, which had caused a great
prejudice to the rights of the detenue and on this ground also, the order is liable to be set aside. In this regard, the learned Counsel for the
petitioner has relied upon a judgment in Harish Pahwa Vs. State of U. P. and Others, and other two unreported judgments of this Court passed in
H.C.P. Nos. 192 of 2002 and 888 of 2006 dated 25.10.2002 and 06.12.2006 respectively.
Per contra, the learned Additional Public Prosecutor made his reply as follows:
(a) Though in the first information report and in the arrest memo. registered in the adverse case in the year 2004 in crime Nos. 43 to 50 of 2004,
the name of the husband of the detenue was found as ''Prasad'', there is sufficient material to show that she is the wife of ''Adhisesh''. Under such
circumstances, it cannot be said that there is vital contradiction in mentioning the name of the husband as ''Adhisesh'' in the detention order. He also
drew the attention of this Court to the representation dated 25.10.2008 submitted by the detenue, wherein she had mentioned in the ''sender''
column as Vimala @ Shilpa, wife of Adhisesh. Similarly, in the bail application filed by the detenue in the ground case found at page No. 195 of
the booklet, the detenue herself mentioned that she is the wife of Adhisesh. Hence, by pointing out the name of the husband of the detenue found in
these documents, the learned Additional Public Prosecutor has submitted that there is no vital contradiction in mentioning the name of the husband
in the detention order. The detaining authority has correctly applied his mind while passing the detention order.
(b) By inviting the attention of this Court to the pages referred to by the learned Counsel for the petitioner in the booklet as well as the translated
copy of the booklet in Kannada, the learned Additional Public Prosecutor demonstrated that the said pages are legible and clear. Further, it was
submitted by the Additional Public Prosecutor that a bare perusal of the entire booklet would show that the allegation that certain documents are
illegible and unreadable has been purposely made as an attempt to make a point to set aside the detention order.
(c) Though there is a repetition of certain documents in the booklet, the same cannot be taken as a ground for setting aside the order of detention.
Since there is a repetition of the documents in the booklet it would, in no way, cause prejudice to the rights of the detenue.
(d) The detenue was running a brothel house by keeping girls and the confession statements of the girls would reflect that they have been brought
under false promise that the detenue would secure jobs for them in an export company and compelled them to indulge in flesh trade. The
complaints written by the neighbours would also show that the detenue was running a brothel house staying at No. 1/37, Thirunagar Annexe,
Valasaravakkam, Chennai as a tenant for quite a long time. Further, the adverse case also would reflect that she involved in the offence under the
Immoral Traffic (Prevention) Act. Under such circumstances, unlike the case of Goondas, there is no need for several adverse cases in plurality to
pass the detention order. Therefore, the submission made by the learned Counsel for the petitioner that ''habitually is missing'' has no merit.
(e) All the copies of documents, which were relied upon by the detaining authority, were furnished to the detenue as requested by her in the
representation dated 25.10.2008. But the documents like pocket note of the Inspector and case diary were not relied upon by the detaining
authority in passing the order. Hence, when a request was made for these documents in the representation, a reply was sent clearly stating that
those documents are not relied upon by the detaining authority to arrive at the subjective satisfaction in passing the order. Hence the submission
made by the learned Counsel for the petitioner on the ground of non-furnishing of the documents has to be rejected.
(f) The first information report registered in the adverse case and the charge sheet filed therein in C.C. No. 8372 of 2004 along with the affidavit of
sponsoring authority would show that C.C. No. 8372 of 2004 is pending for trial. Therefore it is not correct to state that no material was placed
with regard to the pendency of Criminal case in C.C.No.8372 of 2004 before the detaining authority.
(g) The statement of each victim girl runs about only a page. Therefore, it cannot be said that the translation made between 18.20 Hours and 19.00
Hours by the Sub-Inspector of Police raises a doubt.
(h) Similarly, with regard to the contention raised by the learned Counsel for the petitioner that recording of the identification marks of the victim
girls in the detain order, had been made with cynical intention, it is submitted by the Additional Public Prosecutor that the identification marks were
recorded by the Judicial Magistrate and, therefore, no doubt can be raised by making sarcastic comments on judicial orders. Moreover, the
contention raised by the learned Counsel for the petitioner with regard to the recording of the statements of the victim girls by the police as well as
recording of identification marks in the detain order by the Judicial Magistrate, are all connected with the factual aspects of the case. The
correctness of the factual aspects of the case cannot be made as a ground for attacking the detention order.
(i) There is no violation of guidelines as laid down by the Apex Court in D.K. Basu''s case as stated by the learned Counsel for the petitioner. The
detenue herself stated in her confession statement that she was deserted by her relatives. Further, all the efforts taken by the sponsoring authority to
get the particulars of the relatives of the detenue ended in vain. Under such circumstances, it cannot be said that the guidelines of D.K. Basu''s case
are violated. Even if there is any failure to comply with the provisions of law with regard to the remand of the detenue it is always open to the
detenue to challenge the same by initiating suitable proceeding, especially in the circumstances, as in the case on hand where the detenue herself
made a confession statement that she was deserted by her relatives. In this regard, the learned Additional Public Prosecutor relied upon the case
reported in 2000(1) L.W. (Crl.) 443.
(j) There is no delay in considering the representation submitted by the petitioner/detenue. The representation was made on 25.10.2008 and the
order of rejection was passed on 21.11.2008 i.e. within a period of one month. Further, the dates 22.11.2008 and 23.11.2008 being Saturday
and Sunday, the rejection order was despatched on the next working day viz., 24.11.2008 and it has reached the detenue on 28.11.2008.
Therefore, no delay has been caused on the part of the State in serving the copy of rejection order on the detenue and therefore, the submission
made by the petitioner alleging that there is a delay in considering the representation has to be rejected. Thus, by concluding his arguments, the
learned Additional Public Prosecutor submitted that the detention order was passed by the detaining authority with proper application of mind ; all
the copies of the documents furnished to the detenue are legible and readable; habitual act of the offence is also evident from the adverse cases and
from other materials; the doubt raised by the learned Counsel for the petitioner on factual aspects cannot be a ground for quashing the detention
order, since the correctness of the facts of the case cannot be gone into while passing the detention order. There is no violation of law or guidelines
of the Hon''ble Supreme Court in effecting the arrest of the detenue.
There is no delay in considering the representation or serving the order of rejection.
Heard the learned Counsel for the petitioner and the learned Additional Public Prosecutor and perused the materials on record.
On perusing the documents found in the typed set of papers, as pointed out by the learned Additional Public Prosecutor, it is clear that the
detenue herself mentioned the name of her husband in the representation dated 25.10.2008 as well as in the bail application, only as ''Adhisesh''
and not as ''Prasad''. In this regard, the learned Counsel for the petitioner has given much importance to the confession statement given by the
detenue to the police officer stating that she is the wife of Prasad. But, on going through the said statement, we found that the detenue had stated
that ''Prasad'' accepted her as his ''wife�. But in our opinion, the said statement cannot be taken as an assertive statement. On the other hand,
the said statement goes to prove that there is no legal relationship of husband and wife between the said Prasad and the detenue and there is only a
living-in relationship between them. Under such circumstances, we are not inclined to accept the submission made by the learned Counsel for the
petitioner that there is a vital contradiction in mentioning the name of the husband by the detaining authority in the detention order.
With regard to the other contention of the learned Counsel for the petitioner that certain pages in booklet are not legible, we have perused the
documents referred to by the learned Counsel for the petitioner and found that the copies are legible and clear. Under such circumstances, we do
not hesitate to accept the submission putforth by the learned Additional Public Prosecutor that the said allegation was made purposely as an
attempt to create a defence, some way or other, to escape from the clutches of detention order. Hence, the submission made by the learned
Counsel for the petitioner in this regard is rejected.
As contended by the learned Counsel for the petitioner, it is, no doubt, that there is repetition of certain pages in Tamil booklet as well as in
Kannada translation. But in our view, the repetition of pages in the booklet would not cause any prejudice to the rights of the detenue in making
representation. Under such circumstances, we are of the view that the said allegation is nothing but yet another attempt to escape from the clutches
of the detention order by the detenue. Therefore, we are not inclined to accept the submission made by the learned Counsel for the petitioner in
this regard. Further, on going through the rejection order, we find that all the copies of the documents were furnished to the detenue. Some of the
documents which were not furnished to the detenue are only the documents, which were not relied upon by the detaining authority while passing
the order of detention. Therefore, we are also negativing the contention raised by the learned Counsel for the petitioner that certain relevant
documents were not furnished to the detenue to make an effective representation. Hence the judgment relied upon by the learned Counsel for the
petitioner reported in P. Muthusamy v. State, rep. by the Secretary to the Government and Anr. 2000 (1) L.W. (Crl.) 27 has no application to the
facts of this case.
On a perusal of the first information report registered in the adverse cases as well as the charge sheet, we are of the view, as contended by the
learned Additional Public Prosecutor, that the charge sheet and the first information report coupled with the affidavit sworn in by the sponsoring
authority would go to show that C.C. No. 8273 of 2004 is pending for trial. Hence, the submission made by the learned Counsel for the petitioner
that no material was placed before the detaining authority to show that C.C. No. 8273 of 2004 is pending for trial, cannot be accepted and the
same is hereby rejected.
Coming to the other grounds raised by the petitioner with regard to the recording of the statements of the victim girls as well as recording of the
identification marks by the Judicial Magistrate, we accept the submission made by the learned Additional Public Prosecutor that the points raised
by the learned Counsel for the petitioner in this aspect are the questions of fact. The correctness of the question of facts cannot be gone into by the
detaining authority. Even if the petitioner feels that there is some flaw in recording the confession statements of the victim girls as well as any flaw in
recording the identification marks, the same can be questioned by her before the appropriate forum in accordance with law and the alleged flaw
will not, in any way, augment the case of the petitioner, in these proceedings.
With regard to the submission made by the learned Counsel for the petitioner that there is no connection between the adverse cases and the
ground case and as such habitual act of committing the offence is missing, which is a basic criteria for passing the detention order, we are of the
view that, as contended by the learned Additional Public Prosecutor, the detenue was running a brothel house by keeping 10 girls by falsely
promising each of them to secure a job in an export company. The complaints of the neighbours would also show that the detenue was running a
brothel house staying as a tenant for quite a long time. Therefore, as contended by the learned Additional Public Prosecutor, to brand as an
immoral traffic offender, there is no requirement for several adverse cases unlike the case of Goondas. The fact that the adverse case registered in
the year 2004 coupled with the ground case along with the other materials, undoubtedly would go to prove that the detenue is a habitual offender.
Under such circumstances, we are not inclined to accept the submission made by the learned Counsel for the petitioner that the expression
�habitual� is missing . Accordingly, this contention is also rejected.
With regard to the contention of the petitioner that the arrest was not intimated to the relatives of the detenue, we are of the view that, as
submitted by the learned Additional Public Prosecutor, the detenue herself has stated in her confession statement that she was deserted by her
relatives and the materials on record would also show that all the efforts taken by the sponsoring authority to get the particulars of the relatives
ended in vain. Under such circumstances, it cannot be said that the guidelines laid down by the Apex Court in D.K.S. Basu''s case are violated. At
this juncture, it would be appropriate to quote the dictum laid down by this court in S. Sukumaran and Ors. v. State rep. by the Sub-Inspector of
Police, etc. 2000(1) L.W. (Crl.) 443, wherein it has been held as follows:
Learned Counsel for the petitioner further relied upon a decision of the Apex Court reported in 1997 SCC (Crl.) 92 (D.K. Basu v. State of
West Bengal) and contended that the remand of the detenu was improper and that there is no valid remand since the guidelines indicated in the said
decision have not been complied with by the concerned Magistrate. The question whether the remand properly effected and in accordance with
law is a matter to be agitated in a different proceeding and before a different Forum. If, really there was any failure to comply with the provisions of
law with regard to remand of an accused, it is always open to the accused to question the same by initiating suitable proceedings.
Therefore, even if there is any violation as alleged by the detenue, she can challenge the same by initiating suitable proceedings.
With regard to the delay in considering the representation is concerned, we find that the representation was sent on 25.10.2008 and the
rejection order was passed on 21.11.2008, i.e. within the period of one month. Therefore, there is no delay in considering the representation. So
far as the serving the copy of the rejection order on the detenue is concerned, we find that 22.11.2008 and 23.11.2008 being Saturday and
Sunday, the rejection order was despatched on the next day viz., 24.11.2008 and it has reached the detenue on 28.11.2008. Therefore, we do
not find any delay on the part of the State in serving the copy of the rejection order on the detenue. Hence, the submission made by the learned
Counsel for the petitioner in this regard cannot be accepted. Therefore, we are of the considered view that the there is no valid ground to interfere
with the order of detention.
In the result, the Habeas Corpus petition fails and accordingly, the same is dismissed.