Prabha Sridevan, J.@mdashThe Petitioner himself has filed this habeas corpus petition against the order of detention passed in BDFGISSV No. 82/07 dated 27-12-2007 branding him as Goonda. From the grounds of detention it is seen that the Petitioner came to adverse notice in the following cases:
(1) Crime No. 139 of 2007 (Chengal-pattu Town Police Station) in respect of the occurrence that took place on 29-04-2007 and the case was registered u/s 307, 294(b), 324,506(ii) IPC.
(2) Crime No. 635 of 2007 (Chengal-pattu Taluk Police Station) in respect of an occurrence which took place on 17-11-2007 for which the above case has been registered under Sections 147, 148, 341, 324, 307, 302 r/w 3(1) Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).
2. The ground case relates to an occurrence that took place on 20-11-2007 where the Inspector of Police who was patrolling to nab the detenu and his associates who were all involved in the earlier offence namely the Cr. No. 635 of 2008 caught the accused red-handed and on the complaint given by the Inspector of Police on 20-11-2007, a case was registered with Palur Police Station Cr. No. 210 of 2007 for offences under Sections 147, 148, 332, 307 IPC and 25(l)(a) Arms Act. The arrest of the detenu was intimated to the family through telegram on the same day. On 21-11-2007, the detenu was produced before the Judicial Magistrate I and II, Chengalpattu and he was ordered to be remanded to judicial custody upto 05-12-2007. The detaining authority was satisfied that the detenu had to be detained in order to prevent him from indulging in further activities in accordance with the provisions of Public Tranquility and offences against human body and had to be detained in accordance with the provisions of Tamil Nadu Act 14 of 1982.
3. The learned Senior counsel appearing for the Petitioner raised several grounds. He submitted that there is a vital discrepancy between the grounds of detention in English and in Tamil. In Paragraph No .4 it is stated that,
He is involved in robbery and murder of two persons and he is acting against public order and peace.
whereas in Tamil version, " The learned Senior counsel submitted that the word "robbery" has not been translated in the Tamil version and this has affected the rights of the detenu. The detaining authority had considered the involvement of the detenu in the offence of robbery and if it was one of the grounds which persuaded him to pass the detention order then the detenu who is familiar only with Tamil language is entitled to know the same. The imperfect translation would vitiate the detention order.
3. (i) The learned Senior counsel submitted that neither in the ground case nor in the adverse case nor in the materials produced is there anything to show that the offence of robbery was in fact committed by the detenu or that he was in-volved in robbery. Therefore, the conclusion of the detaining authority that he was involved in robbery is not based on any material and the detention order suffers from non-application of mind. For this, he relied on
(ii) Next the learned Senior counsel submitted that the telegram intimating the factum of arrest to the Petitioner''s family members/next friend does not show the date of remand or the place where he has been remanded and this would violate to the directions given by the Supreme Court in D.K. Basu v. State of West Bengal (1997 SCC (Crl) 92) . Among those guidelines Clause No .4 is relevant and reads as follows:
(4) 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 Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(iii) Next the learned Senior counsel submitted that as regards the question is whether the detenu is a habitual offender or not, there is nothing to show that the detenu is a habitual offender. Then the satisfaction of the detaining authority that the detenu should be detained is not based on any materials. For this, he relied on
Because the idea of "habit" involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them they cannot be treated as habitual ones.
4.(i) The learned Additional Public Prosecutor submitted that since the occurrence in the adverse cases and the ground case are described in detail, the mere fact that there is some difference in the English and Tamil version is not material. The detenu knew what weighed in the detaining Authority''s mind.
(ii) As regards the violation of D.K. Basu''s guidelines, the learned Additional Public Prosecutor would submit that immediately after the arrest, the telegram was sent and on that date he was not actually remanded to judicial custody and therefore, if the place of custody is not intimated in the telegram it was because he had not yet been remanded. Therefore, the order of detention deserves to be confirmed.
5. We have considered the oral submissions of both the parties. It is clear from the extracts of Paragraph No. 4 of the detention order in English that the conclusion of the detaining authority is that the detenu is involved in robbery. But this was not communicated to the detenu in Tamil. There is a Tamil equivalent for the word "robbery" it is "bfhs;is@/ This is not found in the Tamil version. Therefore, any representation that the detenu could have made on this question was denied to him because he was not put on notice that the detaining authority had come to the conclusion that he was involved in robbery.
6. Next, neither in the adverse case nor in the ground case do we find anything to show that the detenu had committed the offence of robbery. So the basis on which the detaining authority was satisfied that the detenu was involved in robbery is not before us and the basis on which he came to the conclusion was also not made known to the detenu. It is futile to say that if the detenu was not involved in the offence of robbery there is no need to produce any materials referring to such offer because the order of detention clearly shows that the detaining authority was satisfied that he was involved in robbery. If he was actually involved in the commission of robbery, the materials to support it should be made available to the detenu. They have not been made available. If he was not actually involved in robbery, then the finding that he was involved, in the English version, is the re-sult of non-application of mind. So whichever we look at it, the order of detention is vitiated.
7. In Elasu v. District Collector & DM, T.N., (2005) 10 SCC 145 , at page 146 it is held as follows:
4. It is the contention of the Appellant that the alleged confessional statement has not been supplied to him in spite of request made in that behalf. The High Court after perusing the material papers supplied to the detenu made an observation that the confessional statement was in fact made by the first accused, namely, Vaithi i.e. the brother of the detenu and based on his statement the weapons were recovered under a mahazar. The High Court then observed thus:
Inasmuch as the Petitioner, who is a detenu has not made any confessional statement, there is no question of supplying copy of the same to him. Though the confession was made only by A-l and the weapons were recovered based on the same as well as copy of the statement and mahazar were supplied to the detenu, we are of the view that there is no infraction or violation of any of the statutory provisions. In such a circumstance, we reject the second contention also.
5. The counter-affidavit filed by the District Magistrate also reveals that there was no confessional statement by the detenu either admitting the guilt or leading to the recovery of incriminating objects used in the crime. If that be the case, the statement in the detention order extracted above cannot be correct. Making of confession by the detenu is evidently one of the crucial factors that was taken into account by the detaining authority. Once that fact is found to be non-existent, the satisfaction of the District Magistrate under the provisions of the aforesaid Act is vitiated. This ground is sufficient to quash the detention order. Accordingly, the appeal is allowed and the Appellant shall be set at liberty forthwith unless required in any other case.
8. In
2. We have seen from the said biodata that, apart from the single incident of crime which was communicated as a ground to the detenu, there is also a series of other injurious circumstances of the immediate past about the criminal antecedents of the detenu which were not communicated. Indeed, this chain of facts explain why in the counter affidavit it has been stated that:
The Petitioner is a notorious wagon-breaker and railway criminal and was indulging in committing thefts from goods train.
For one thing, a "notorious" wagon-breaker implies a course of conduct and not a single instance. For another, the factors which make up the notoriety and which are recited in the history sheet presented to the District Magistrate certainly must have induced him into the subjective satisfaction resulting in the detention. They were not communicated. The consequence is that the order is in violation of the constitutional provision in Article 22(5) and is bad. For this reason, the rule is made absolute and the Petitioner is directed to be released forthwith.
9. Applying these decisions, if on facts, the allegation is that he was involved in robbery, if the materials to show that he was involved in robbery is non-existent, then the satisfaction of the detaining authority is vitiated as seen from Elasu''s case above. If indeed there was material to show that he had involved in robbery which had induced the detaining authority into the subjective satisfaction resulting in detention, then that material was not communicated or made available to the detenu and this vitiates the detention order. Therefore, whichever way we look at, the impugned order suffers from illegality and hence the same is quashed and the habeas corpus petition is allowed. The detenu Srini-vasan @ Kulla Seenu is directed to be set at liberty forthwith unless his presence is required in any other case.
