Dr. Prakash
Vs. State of Tamil Nadu & Ors [2002] Insc 429 (4 October 2002)
N.Santosh
Hegde & B.P.Singh. Santosh Hegde,J.
The
petitioner who is under detention has preferred this writ petition under
Article 32 of the Constitution of India challenging the said detention.
While
the petitioner was a remand prisoner in Crime No.1466/2001 of Vadapalani Police
Station, he was detained under Section 3(1) of the Tamil Nadu Preventive
Detention of Bootleggers, Drug-Offenders, (Forest-Offenders), Goondas, Immoral
Traffic Offenders and Slum-Grabbers for Preventing their Dangerous Activities
Prejudicial to the Maintenance of Public Order, Act (Tamil Nadu Act 14 of
1982), by an order of detention dated 18.2.2002 made by the Commissioner of
Police, Chennai, 2nd respondent herein. The main grounds of detention are that
the petitioner was indulging in offences under Section 67 of the Information
Technology Act, 2000, Sections 4 and 6 of the Indecent Representation of Women
(Prohibition) Act, 1986 and under Section 27 of the Arms Act, 1959.
On
receipt of the detention order in the Central Prison, Chennai, the petitioner
informed the detaining authority that he is not able to read and write Tamil,
therefore, he is not in a position to effectively represent against the grounds
of detention supplied to him. In reply to this letter, the 2nd respondent
stated that the statement of the petitioner that he does not read and write
Tamil is false. At any rate, to be on the safer side, he supplied to him the
copies of the grounds of detention and the annexures enclosed therewith in
English.
His
representation to the detaining authority as also to the State Government
(respondent No.1) having failed the petitioner has preferred this writ
petition.
The
first contention raised by the petitioner in this writ petition is that while
he was a remand prisoner and before the order of detention dated 18.2.2002 was
made by the 2nd respondent, he had written a letter from the jail to the 2nd
respondent alleging that the Assistant Commissioner of Police, Vadapalani had
demanded a bribe of Rs.5 lacs from him, threatening that if he failed to give
the bribe then he would make out false case against him and arrest him. It is
also stated before us that in the said letter the petitioner had complained to
the 2nd respondent that because of the said failure to pay the bribe he was
falsely implicated and arrested and the said police officer was taking steps to
see that the petitioner is not released from the jail. Learned counsel for the
petitioner argued before us that it is pursuant to this refusal to pay bribe,
the very same officer has sponsored the case of the petitioner for detention
under the Tamil Nadu Act 14 of 1982. He further submits from the register
maintained by the Jail Superintendent (respondent No.3), that it is clear that
this letter of the petitioner had reached respondent No.3, however, he has not
taken note of the same while passing the order of detention, consequently his
detention order suffers from the vice of non application of mind to vital
material. The respondent No.2 in his reply filed before this Court has denied
the receipt of any such letter, but since the learned counsel for the
petitioner strongly relied on the despatch register of the Central Prison,
Chennai, to satisfy ourselves as to this fact we summoned the said register and
examined the same with the assistance of the counsel for the parties. After
perusing the said register, we notice that there is an entry dated 28.1.2002 in
regard to a letter despatched by the 3rd respondent to the 2nd respondent,
which the petitioner claims as his letter complaining against the said police
officer. Along with the register, we have also received a copy of the letter
received by the Commissioner on 28.1.2002 from the 3rd respondent and on perusal
of the same it is seen that this letter is written by the respondent no.3 to
the 2nd respondent in regard to the arrest of one escaped prisoner Ravi and
this letter has nothing to do with the complaint allegedly made by the
petitioner to the 2nd respondent. Having perused this material, we are
satisfied that the petitioner has not been able to convince us that, as a
matter of fact, any such letter dated 28.1.2002 was sent by the petitioner to
the 2nd respondent. Therefore, in our opinion, there is no substance in the
argument addressed as to the non-consideration of the letter dated 28.1.2002.
Hence, the same is rejected.
Learned
counsel then contended that the sponsoring authority had placed irrelevant and
extraneous material before the detaining authority some of which have been
considered by the detaining authority, hence, his subjective satisfaction is
vitiated by the consideration of irrelevant and extraneous material. In support
of this contention, the learned counsel pointed out from the pleadings in the
writ petition that the detaining authority has taken into consideration three
letters one of which is dated 2.2.2002 written by one Ms.J.Bhanu. The said
letter states that the petitioner has indulged in heinous crime, hence the
police should take all possible steps to get the petitioner punished and to see
that he is not released on bail. A copy of this letter has been furnished to
the detenu. The 2nd respondent in his counter affidavit filed before the Court
has stated that he has taken note of the contents of this letter. We fail to
see how the contents of this letter in any manner is extraneous or irrelevant
for the purpose of forming an opinion as to the detention of the petitioner.
The argument of the learned counsel is that this is not a letter which was
either recovered during the course of investigation or a statement made to the
investigating officer, therefore, such letter from a pro bono public is likely
to prejudice the mind of the detaining authority. The learned counsel for the
petitioner has failed to satisfy us that the detaining authority is not
entitled to look into any material which is not collected during the course of
the police investigation, even though such material may be relevant for the
purpose of forming a subjective satisfaction. From the contents of this letter,
we find these are related to the grounds of detention, therefore, we cannot
accept this contention of the petitioner also.
The
next argument of the learned counsel with regard to the consideration of
extraneous material is that, the detaining authority has considered two other
letters one of which is dated 14.2.2002 written by one Mrs.Saraswathi and
another letter dated 1.1.2002 written by Dr.S.Nagalakshmi to the police
authorities. The signatories of these letters claiming to be office bearers of
certain women's organisations had pleaded with the police authorities to take
steps to see that the petitioner is not released on bail and if the police
authorities failed to do so, the members of their association would go on 'Dharna'.
In the counter affidavit filed by the detaining authority, he has stated that
he has not taken into consideration the contents of this letter. The learned
counsel for the petitioner argues that if these letters are not considered by
the detaining authority then supply of the copies of this letter along with the
grounds of detention would have misled the petitioner in making an effective
representation. Therefore, the detention should be held to be invalid. We do
not accept this argument either. Mere fact that copies of the some of the
materials placed before the detaining authority was included in the list of
documents given to the detenu ipso facto does not, in any manner, affect the
petitioner's right to make a proper representation against his detention. The
contents of this letter, if at all, read by the detenu would not, in any
manner, mislead him or would confuse him because the contents of this letter
are similar to the letter of Ms.Bhanu and it indicates that the police should
take steps to prevent the petitioner from coming out on bail. Therefore, these
letters cannot, in any manner, cause confusion in the mind of the detenu. In
our opinion, this complaint of the petitioner has to be rejected.
The
learned counsel for the petitioner then contended that some of the documents
referred and relied upon in the grounds of detention have not been supplied to
the detenu, hence, there is a non-communication of grounds of detention. In
support of this contention the learned counsel relied on the fact that the
detaining authority while passing the order of detention has referred to the
bail application of the petitioner moved before the 17th M.M.Court, Saidapet,
Chennai and also the application for bail filed by the petitioner before the
Principal Sessions Court which were dismissed by the said courts, copies of
these according to the petitioner, were not supplied to the petitioner because
of which the petitioner could not make an effective representation. From the
perusal of these documents, it is seen that the detaining authority has made a
reference to the same in the course of narration of fact, and he has not based
or founded his subjective satisfaction on the contents of the said documents.
Therefore, in our opinion, it is not necessary for the detaining authority to
give copies of these documents which are only in the nature of narration of
facts.
The
learned counsel then contended that there is a total non-communication of
grounds and the order of detention inasmuch as the same is supplied to him in a
language not known to the petitioner. He submitted even though some of the
copies of the document in Tamil was furnished to him on his demand on 28.2.2002
the same was far beyond the required time period and because of this belated
supply of the documents he was prevented from making an effective
representation to the detaining authority. In this regard, we notice on receipt
of the order and grounds of detention with enclosures, the detenu had written a
letter to the 2nd respondent intimating him of his inability to read and write
Tamil. In reply the detaining authority has denied the same immediately.
However, he, along with the said letter, has supplied the copies of the said
documents on 28.2.2002. It is true that the detaining authority in the order of
detention has mentioned that if the detenu so chooses he may make a
representation to him before the confirming authority, namely, the State
Government confirms his order of detention. The detaining authority in his
affidavit before this Court has stated that he received the representation of
the petitioner and considered and rejected the same on 4.3.2002. Therefore, it
is clear that the petitioner had sufficient time to make a representation to
the detaining authority. At this stage, it may be relevant to notice that even
though the detenu had no legal right to make a representation to the detaining
authority, still the same was given to him and he did use this right, which
representation was considered at an early date by the detaining authority and
was rejected. By the delay of two days in furnishing the translated copies to
the detenu, there was no prejudice caused to the petitioner in making his
representation effectively to the detaining authority.
In the
exercise of his constitutional right the petitioner has made a separate
representation to the State Government well within the time allowed, by which
time he had received the translated copies. This representation was considered
and rejected by the State Government. Though the petitioner initially questioned
the delay in disposal of this representation by the State Government, but after
some arguments the learned counsel did not press this argument further.
The
learned counsel then contended that there are some Tamil transcripts in the
grounds of detention which were not translated and given to him when the
translated copies of other documents were given. We have perused these Tamil
transcripts which indicates the conversation the petitioner had in Tamil with
others. The statements of those persons who conversed with the petitioner have
been supplied to the petitioner which contains the English translation of these
very words. Therefore, it is futile to contend that non translation of the
actual words spoken by the petitioner himself could have prejudiced the
petitioner in making his representation.
It is
lastly contended that the State Government was prejudiced by the opinion
rendered by the detaining authority.
This
argument is built around the fact that the State Government sought para wise
remark from the 2nd respondent while dealing with the petitioner's
representation. In response to that the 2nd respondent while sending his
remarks in the last para stated that the petitioner's representation may be
rejected.
This
recommendation according to the learned counsel has weighed in the mind of the
confirming authority to reject petitioner's representation. We are unable to
accept this argument also. It is normal under the rules of business for the
Government to seek the remarks of the officer against whose order a
representation is made to the Government. As a matter of fact, if such remarks
are not called for and statutory representations are rejected summarily by the
Government it would be considered as a rejection without application of mind.
Therefore,
in cases where the considering authority feels that the remarks of the officer
who made the original order is necessary then such superior authority must call
for such remarks. In the instant case, the representation filed by the detenu
did raise certain factual points which without the comment of the detaining
authority might have been difficult to be dealt with. Therefore, in our
opinion, the authority considering the representation had justly called for the
remarks.
The
next limb of this argument that the State Government was influenced by the
remarks of the detaining authority to dismiss the representation is too far
fetched. In the instant case, the Government of Tamil Nadu has been authorised
to be the authority to consider the representation against the detention order
made by the Commissioner of Police who is subordinate to it. Therefore, to
presume that such higher authority would be influenced by an observation made
by the subordinate to such an extent as to surrender its independent authority
is to demean the independence of authority exercised by the State Government,
hence this argument is recorded here only to be rejected.
For
the reasons stated above, this petition fails and the same is dismissed.
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