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NON­REPORTABLE

   IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO.    5857/2016

E. SUBBULAKSHMI PETITIONER(S)                                 VERSUS

SECRETARY TO GOVERNMENT & ORS. RESPONDENT(S)                   

   J U D G M E N T

A.M. KHANWILKAR, J.

1.  The detenu's mother filed a writ petition in the

High Court of judicature at Madras bearing H.C.P. No.117

of 2016 challenging the Detention Order

N.1227/BCDFGISSSV/2015 dated 04.12.2015.   The principal

contention pursued before the High Court was that the

typed set of booklet furnished along with the impugned

detention order to the detenu was illegible, in

particular, the copy of the F.I.R. in respect of Crime

No.598 of 2015 dated 18th  March, 2015.   The High Court

negatived the said contention on the finding that the

detenu did not make any representation to the

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Appropriate Authority nor brought the said fact to the

notice of the concerned authority.  Further, no such plea

was taken in the writ petition.   Another contention

raised before the High Court that the name of the Judge

has not been correctly mentioned in the remand orders

supplied to the detenu, has also been rejected by the

High Court on the finding that the same can be no ground

to quash the detention order.   No other contention was

pursued before the High Court.

2. In the present special leave petition the petitioner

has raised different grounds to challenge the impugned

detention order.  In the special leave petition and the

application for urging additional grounds, following

points have been urged, which were reiterated during the

course of arguments:

i) The detention order does not mention

the specific period for which the same would

operate and, therefore, it is vitiated.

ii) There is no record to indicate that the

next friend/family member of the detenu was

informed about the factum of detention at the

earliest opportunity.

iii) The satisfaction recorded by the

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Detaining Authority is inter alia on the basis

of a confessional statement which, however,

does not bear the signature of the detenu and,

therefore, could not have been relied upon.

This has impacted the subjective satisfaction

of the Detaining Authority.

iv) Copy of the F.I.R.   furnished to the

detenu (at page Nos.79­80 of the SLP paper

book) is illegible and as a result of which the

detenu was denied of an opportunity to make

effective representation.

v) The impugned detention order refers to

the Government order dated 18th  October, 2015

but copy of that document has not been

furnished to the detenu, which is fatal to the

continued detention of the detenu.

3.  Taking the first point urged before us, the same

deserves to be stated to be rejected.   Inasmuch as the

detention order has been issued by the Commissioner of

Police in exercise of powers under Section 3(1) read with

Section 3(2) of the Tamil Nadu Prevention of Dangerous

activities of Bootleggers, Cyber Law Offenders, Drug

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Offenders, Forest Offenders, Goondas, Immoral Traffic

Offenders, Sand Offenders, Sexual Offenders, Slum

Grabbers and Video Pirates Act, 1982   (for short, 'the

Act of 1982').   The grounds of detention served on the

detenu expressly mentions that the detention order shall

remain in force for 12 days in the first instance.  The

proposal for confirmation of detention order was

considered by the Appropriate Authority (Deputy Secretary

to the Government dated 15th December, 2015 read with the

order passed by the Deputy Secretary to the Government

dated 29th  February, 2016).   That makes it amply clear

that the detention period would continue up to 12 months.

The initial detention order, upon confirmation thereof,

would remain in force for a period of 12 months.  Thus

understood, the ground urged by the petitioner to

challenge the detention of her son Murugan S/o.

Esakkimuthu Thevar is devoid of merit.

4. Reverting to the second point, even the same

deserves to be rejected, inasmuch as the respondents have

filed reply affidavit and asserted that after the

detention order was executed and the detenu was taken

into custody, intimation in that behalf was sent to his

brother Venkatesh by registered post on 6th  December,

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2015.  The postal receipt in that behalf is also placed

on record.  The fact so asserted has not been countered

by the petitioner.  The intimation sent to the detenu's

brother and the memo in that behalf is marked as Annexure

R2  Thus, it is not a case of no intimation given to the

next friend/family member of the detenu at the earliest

opportunity.   The petitioner placed reliance on the

decision of this Court in the case of D.K. Basu v. State

of West Bengal, (1997) 1 SCC 416, in particular paragraph

35 enunciating the procedure to be adopted in all cases

of arrest or detention.   In clause (4) of the said

paragraph it is predicated that 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 Organization in the District and the police

station of the area concerned telegraphically within a

period of 8 to 12 hours after the arrest.  We find force

in the submission of the learned counsel for the

respondent that the procedure about arrest of a person

and sending intimation dealt with by the Supreme Court is

essentially in respect of arrest of a criminal and to

interrogate him during the investigation.  In any case,

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in the absence of telegraphic service available, as of

now, intimation sent to the family member of the detenu

by registered post in addition to the telephonic

intimation must be considered as substantial compliance

of the requirement.  Counsel for the petitioner, however,

has placed reliance on the decision of the High Court of

Madras in the case of Shanmugam and Another v. State of

Tamil Nadu and Another, (2013) 4 MLJ (Crl) 1.  In that

case the stand taken by the authority was that intimation

was given to the next friend of the detenu over cell

phone/land line phone.   The Court opined that it is

difficult to ascertain the correctness of that position

and intimation by land line telephone/cell phone must be

eschewed.  The Court observed that even if no telegraphic

service was available, in such a situation it would be

appropriate to send intimation by e­post as introduced by

the Department of Posts, Government of India with effect

from 30.01.2004. That suggestion has been given in

paragraph 25 of the judgment.  The fact remains that in

the present case intimation was given to the family

member of the detenu by registered post as well as on

telephone. As observed earlier, substantial compliance of

giving information to the family member of the detenu has

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been done.  Hence, the argument under consideration need

not be examined any further.

5. The third ground urged by the petitioner is about

the reliance placed on alleged confessional statement

given by the detenu during the investigation of the

ground case.   The fact that no signature of the detenu

has been noted on the said confessional statement, it

would at best be a ground to discard  that document in a

criminal trial being inadmissible in evidence. That by

itself is not sufficient to question the subjective

satisfaction reached by the Detaining Authority. What is

also required to be considered is: whether the said

voluntary confessional statement was the sole basis  to

arrive at the subjective satisfaction.  On a fair reading

of the grounds of detention, we must hold that the said

confessional statement is not the solitary document or

circumstance considered by the Detaining Authority.  The

grounds of detention has referred to the F.I.R. in Crime

No.2348 of 2015 under Sections 341, 294(b), 323, 384 and

506(II) I.P.C. read with Section 4 of Tamil Nadu Public

Property (Prevention of Damage and Loss) Act; and the

background in which the said case was registered

including the seriousness of the offence.  Reliance has

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been placed on the fact that during the investigation of

the case, the Assistant Commissioner of Police was

informed that the detenu who was absconding in the ground

case, was apprehended in connection with another crime.

After taking orders of the Assistant Commissioner of

Police, Thiru N. Elangovan, Inspector of Police, Law and

Order, J4 Kotturpuram Police Station arrested the detenu

on 2.11.2015 at 21.30 hrs.   After his arrest he was

brought to Chennai.  On 31st November, 2015 at 13.30 hrs.

while police party along with the accused were returning

to Chennai, opposite to Central Polytechnic the detenu

informed that he wanted to attend to nature's call.  When

he was permitted to go, he pushed the police and jumped a

locked gate and tried to escape from the police custody.

In his attempt to flee, he fell down on his knee and

sustained injuries.  The police party after chasing him

once again arrested him.   They took him to a nearby

Government Royapettah Hospital for treatment as out

patient.   The detenu was later on handed over to the

Inspector of Police, J4 Kottupuram Police Station, who in

turn recorded the alleged voluntary confessional

statement.  The grounds of detention also advert to the

fact that the detenu was arrested in connection with

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other serious offences under Section 294(b), 341, 323,

336, 397 and 506(ii) I.P.C. but was released on bail.

The Detaining Authority has recorded his subjective

satisfaction that the detenu is likely to be released on

bail even in connection with the ground case where he was

on remand till 17th  December, 2015; and if released on

bail, he may indulge in similar prejudicial activities

affecting the maintenance of public order.  Suffice it to

observe that the alleged confessional statement is not

the sole basis for forming subjective satisfaction of the

Detaining Authority.   The Detaining Authority has

considered all aspects of the matter and taking totality

of circumstances into account deemed it necessary to

detain the detenu in exercise of powers under Section 3

of the 1982 Act.   Further, the fact that the alleged

confessional statement does not bear the signature of the

detenu will be of no avail, for doubting the subjective

satisfaction recorded by the Detaining Authority.  It is

well settled that the Court must be loath to question the

subjective satisfaction reached by the Detaining

Authority.   Hence, even this contention also does not

commend to us.

6. The next argument pursued by the petitioner is that

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the copy of the F.I.R. in Crime No.598   of 2015 dated

18th  March, 2015, furnished to the detenu is illegible.

Indeed, the said document is a photo copy of the

original.  The first page of the document, however, gives

the necessary description of the offence.   The facts

which constituted that offence are noted on the second

page.   The second page of the document is somewhat

illegible, being photo stat copy.  Significantly, Crime

No.598 of 2015 is not the ground case.  The ground case

is Crime No.2348 of 2015.  In that sense, the said F.I.R.

at best is a referred to document and not relied upon

document.   If so, it is not possible to hold that the

continued detention of the detenu is vitiated.  Counsel

for the petitioner, however, placed reliance on the

decision of this Court in the case of Abdul Latif Abdul

Wahab Sheikh v. B.K. Jha and Another,  (1987) 2 SCC 22,

in particular, on the dictum in paragraph 5 thereof.  In

that case, the Court was dealing with the efficacy of

procedural requirement and compliances thereof.   The

Court noted that the procedural requirements are the only

safeguards available to a detenu since the Court is not

expected to go behind the subjective satisfaction of the

Detaining Authority.   It went on to observe that the

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procedural requirements are, therefore, to be strictly

complied with if any value is to be attached to the

liberty of the subject and the constitutional rights

guaranteed to him in that regard.   There can be no

quarrel with this proposition.  The question is, whether

the F.I.R. in Crime No.598 of 2015 furnished to the

detenu is a relied upon document or only a referred to

document by the Detaining Authority for arriving at his

subjective satisfaction.   If it is a relied upon

document, the issue must be answered in favour of the

petitioner.   As aforesaid, we find that the subject

F.I.R. is only a referred to document in the grounds of

detention.

7. Reliance was placed by the learned counsel for the

petitioner on State of Tamil Nadu and Another v. Abdullah

Kadher Batcha and Another, (2009) 1 SCC 333.   In

paragraph 7, the Court observed thus:­

“7. The Court has a duty to see whether the non-supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non-supply of the document called for had any effect  on  the  detenu  and/or  whether  the non-supply  was  prejudicial  to  the  detenu. Merely because copies of some documents have (sic  not) been supplied they cannot by any stretch of imagination be called as relied

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upon  documents.  While  examining  whether non-supply of a document would prejudice a detenu, the Court has to examine whether the detenu  would  be  deprived  of  making  an effective representation in the absence of a document.  Primarily,  the  copies  which  form the ground for detention are to be supplied and  non-supply  thereof  would  prejudice  the detenu.  But  documents  which  are  merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents  without  the  supply  of  which  the detenu is prejudiced.”

8. Reliance was also placed on the decision in the case

of Senthamilselvi v. State of T.N. and Another, (2006) 5

SCC 676.   In paragraph 7 of this decision, the Court

observed thus:­

“7. There  is  also  no  substance  in  the plea that the confessional statement of the co-accused  was  relied  upon,  but  the  copy thereof  was  not  supplied.  The  grounds  of detention merely refer to the confession by the co-accused. That does not form foundation for  the  detention.  On  the  other  hand  it appears  that  the  detenu  himself  made  a confession and that was the main factor on which  the  order  of  detention  was  founded. There is distinction between a relied upon document  and  a  document  which  has  been referred to without being relied upon. The distinction has been noticed by this Court in Powanammal v. State of T.N., [(1999) 2 SCC 413] SCC at p.417,  para 9. It was observed as follows:

"However,  this  Court  has maintained  a  distinction  between  a document which has been relied upon by  the  detaining  authority  in  the grounds of detention and a document which finds a mere reference in the grounds  of  detention.  Whereas  the

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non-supply of a copy of the document relied  upon  in  the  grounds  of detention has been held to be fatal to  continued  detention,  the  detenu need not show that any prejudice is caused to him. This is because the non-supply of such a document would amount  to  denial  of  the  right  of being communicated the grounds and of being  afforded  the  opportunity  of making  an  effective  representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a  case,  the  detenu's  complaint  of non-supply  of  document  has  to  be supported by prejudice caused to him in  making  an  effective representation.  What  applies  to  a document  would  equally  apply  to furnishing a translated copy of the document in the language known to and understood by the detenu, should the document be in a different language.”

9. We fail to understand as to how these decisions will

be of any avail to the petitioner in the backdrop of the

findings recorded above that the copy of F.I.R. furnished

to the detenu in respect of Crime No.598 of 2015 is only

a referred to document.   In the present case, no

grievance about the illegible copy was ever made by the

detenu to any Authority.  Strikingly, the detenu has not

made any representation to any Authority much less to

assert that the said document is a relied upon document

and furnishing of illegible copy was fatal.  As a result,

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this argument also deserves to be stated to be rejected.

10. That takes us to the last ground urged before us

about the non­supply of Government order dated 18th

October, 2015.  This contention has been raised by way of

application for urging additional grounds.   During the

course of arguments, the counsel for the State produced a

copy of the Government Order dated 18.10.2015, the same

reads thus:­

“  ABSTRACT  Preventive Detention - Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders,  Drug-offenders,  Forest-offenders, Goondas,  Immoral  Traffic  Offenders, Sand-offenders,  Sexual-offenders,  Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of  1982)  –  Empowering  Commissioner  of  Police, Chennai under sub-section (2) of section 3 of the Act – Orders- Issued. –---------–---------–---------–---------–-------

HOME, PROHIBITION AND EXCISE (XVI) DEPARTMENT  

G.O. (D) No.189 Dated: 18.10.2015. Read:  

1. G.O. (D) No.137, Home, Prohibition and Excise (XVI) Department, dated 18.07.2015.

Read also:  2. From  the  Commissioner  of  Police,  Chennai Letter  No.235/S.B.XIII/IS/2015,  Dated: 09.09.2015.

–------------- ORDER

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WHEREAS, the Commissioner of Police, Chennai has  reported  that  the  dangerous  activities  of certain  anti-social  elements  such  as Bootleggers,  Cyber  law  offenders, Drug-offenders,  Forest-offenders,  Goondas, Immoral  Traffic  Offenders,  Sand-offenders, Sexual-offenders,  Slum-grabbers  and  Video Pirates, besides endangering life and health of the public are creating alarm and a feeling of insecurity  among  the  general  public,  and  this adversely  affect  the  maintenance  of  public order;

AND  WHEREAS,  the  Commissioner  of  Police, Chennai  has  requested  that  in  view  of  the aforesaid  circumstances  now  prevailing  and likely to prevail in the immediate future in the local limits of Chennai, he may be allowed to exercise the powers conferred by sub-section (1) of  section 3  of the  Tamil Nadu  Prevention of Dangerous Activities of Bootleggers, Cyber law offenders,  Drug-offenders,  Forest-offenders, Goondas,  Immoral  Traffic  Offenders, Sand-offenders,  Sexual-offenders,  Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) by invoking sub-section (2) of section 3 of the said Act.

AND WHEREAS, the Government are also satisfied that  having  regard  to  the  circumstances  now prevailing  and  the  circumstances  likely  to prevail  in  the  immediate  future  in  the  local limits of Chennai it is necessary that the power to  make  orders  detaining  persons  under  sub Section  (1)  of  section  3  of  the  Tamil  Nadu Prevention  of  Dangerous  Activities  of Bootleggers,  Cyber  law  offenders, Drug-offenders,  Forest-offenders,  Goondas, Immoral  Traffic  Offenders,  Sand-offenders, Sexual-offenders,  Slum-grabbers  and  Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) shall  be  exercised  by  the  Commissioner  of Police, Chennai for a future period of 3 months;

NOW,  THEREFORE,  in  exercise  of  powers conferred by sub-section (2) of section 3 of the

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Tamil Nadu Prevention of Dangerous Activities of Bootleggers,  Cyber  law  offenders, Drug-offenders,  Forest-offenders,  Goondas, Immoral  Traffic  Offenders,  Sand-offenders, Sexual-offenders,  Slum-grabbers  and  Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), the Governor of Tamil Nadu hereby directs that the  power  to  make  orders  detaining  the Bootleggers,  Cyber  law  offenders, Drug-offenders,  Forest-offenders,  Goondas, Immoral  Traffic  Offenders,  Sand-offenders, Sexual-offenders,  Slum-grabbers  and  Video Pirates under sub-section (1) of section 3 of the  said  Act  shall  be  exercised  by  the Commissioner of Police, Chennai in the Chennai City  Metropolitan  area  as  specified  in  the notification issued under section 8 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)  for  a  future  period  of  3  months  with effect from the date of issue of this order.

(BY ORDER OF THE GOVERNOR)

APURVA VARMA Principal Secretary to Government

To The Commissioner of Police, Chennai City, Chennai-600 007. The  Director  General  of  Police,  Tamil  Nadu, Chennai-600 004. The  Additional  Director  General  of  Police  (Law  & Order),  Chennai-600 004. The Commissioner of Prohibition & Excise, Chepauk, Chennai-600 005. The  Principal  Chief  Conservator  of  Forests, Chennai-600 015. The Additional Director General of Police/Inspector General of Prisons, Chennai-600 008. The Public (Law & Order) Department, Chennai-600 009. The  Deputy  Secretary/  Under  Secretary,  Law Department, Chennai-600 009. The  Home,  Prohibition  &  Excise  (IX),  (X),  (XI), (XII),  (XIII),  (XIV)  and   (XV)  Department, Chennai-600 009. S.F./S.C.

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//FORWARDED/BY ORDER// Sd/- 18.10.2015

Section Officer”

11. To examine the correctness of the arguments, we deem

it apposite to reproduce the detention order, in which

reference is made to the above document.  The same reads

thus:­

“No.1227/BCDFGISSSV/2015  Dated: 04.12.2015

DETENTION ORDER

Whereas, I, T.K. Rajendran, IPS, Commissioner of Police, Greater Chennai Police, am satisfied that with respect to the person known as Thiru Murugan, male, aged 26, S/o. Easkki Muthu, No.10/23, Subash Street, Thandiarkulam Village & Post, Tirunelveli District is a Goonda as contemplated under section 2(f) of the Tamil Nadu Act 14 of 1982 and that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following order.

Now, therefore, in exercise of the power conferred on me by sub section (1) of section 3 of the Tamil Nadu Prevention of Dangerous activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) read with orders issued by the Government in G.O.(D) No.189, Home, Prohibition and Excise (XVI) Department dated 18th  October, 2015 and under sub­Section (2) of Section 3 of the said Act, I hereby direct that the said Goonda Thiru

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Murugan, S/o. Esakki Muthu be detained and kept in custody at the Central Prison, Puzhal, Chennai.

Sd/­  Commissioner of Police Greater Chennai Police,  Chennai­7

Given under my hand and seal of this office, on this 4th day of December, 2015”

12. From the plain language of the impugned detention

order, it is seen that the stated Government Order dated

18th  October, 2015 is an order issued by the State

Government authorizing or delegating power to the

Commissioner of Police, Chennai, to issue order under

Section 3(2) of the Act of 1982.   The question is,

whether it was mandatory for the Detaining Authority to

supply copy of this Government order to the detenu.  The

order having been issued in exercise of powers conferred

under Section 3(1) of the Act of 1982 and being a

statutory order has nothing to do with the grounds of

detention.   What is imperative is to supply all the

documents which are relied upon by the Detaining

Authority for forming subjective satisfaction for the

purposes of Article 22(5) of the Constitution of India.

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The Government order, however, is regarding the

delegation of power to the Commissioner of Police to

issue detention order.   The validity of that order has

not been challenged by the petitioner.  In other words,

the power of the Commissioner of Police, Greater Chennai

Police, Chennai to pass a detention order, is not put in

issue.   The said Government order is not relevant for

forming subjective satisfaction by the Detaining

Authority. The grounds of detention are about the

prejudicial activities in which the detenu had indulged

in the past; or in the view of the Detaining Authority

the detenu has the propensity to indulge in similar

prejudicial activities even in future.   That is the

quintessence for exercising  power to detain any person.

Suffice it to observe that the subject document, not

being a relied upon document in the grounds of detention

or for forming subjective satisfaction by the Detaining

Authority, failure to furnish copy thereof to the detenu

does not vitiate the action taken by the Detaining

Authority nor the continued detention of the detenu.  In

our opinion, even this submission is devoid of merits.

13. The counsel for the petitioner, relying on the

decision in  R. Kalavathi  v.  State of T.N. and Others,

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(2006) 6 SCC 14, lastly contended that the subjective

satisfaction of the Detaining Authority is founded only

on solitary ground case being Crime No.2348 of 2015.

According to him, an action under the Act of 1982 can be

initiated or resorted to only against habitual offenders

and not where it is a case of solitary crime.   The

argument, though attractive at the first blush, deserves

to be stated to be rejected.   The ground of detention

must be read as a whole.  No doubt, it principally relies

on the ground case being Crime No.2348 of 2015 but also

adverts to other serious offences registered against the

detenu and pending trial, such as Crime No.598 of 2015

registered at D.6 Anna Square Police Station; Crime

No.3/2015 registered at Aavudaiyar Koil Police Station

and including the conduct of the detenu when he tried to

escape from police custody.   The totality of the

circumstances having been taken into account by the

Detaining Authority, there is no reason to doubt the

subjective satisfaction arrived at for issuance of the

impugned detention order, in the fact situation of the

present case.  Notably, this ground has been urged in the

rejoinder submissions. Accordingly, even this

contention does not deserve any further consideration.

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14. For the above reasons, this petition must fail and

is dismissed.

................................J. [ANIL R. DAVE]

................................J. [A.M. KHANWILKAR]

NEW DELHI; NOVEMBER 17, 2016.

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