Court must be loath to question the subjective satisfaction reached by Detaining...

Court must be loath to question the subjective satisfaction reached by Detaining Authority [read order]

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In the case of E. Subbulakshmi V. Secretary To Government & Ors. [Special Leave Petition (Criminal) NO. 5857/2016], decided by the Supreme Court on 18 November 2016, it has been held that the Court must be loath to question the subjective satisfaction reached by the Detaining Authority in a case of preventive detention. In this case, the detenu (son of the petitioner) was detained in preventive detention as per the order of the Commissioner of Police of Chennai 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 Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982.

The decision of the Supreme Court was delivered by a two-judge bench comprising Justice Anil R. Dave and Justice A.M. Khanwilkar.

Following grounds were taken by the petitioner to challenge the detention of her son before the Supreme Court:

(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 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.

Rejecting the first ground, the Supreme Court noted that the period of detention was in fact mentioned in the detention order.

Rejecting the second ground, the Supreme Court noted that intimation about the detention was sent to his brother Venkatesh by registered post on 6th December, 2015. The postal receipt in that behalf was also placed on record. The Supreme Court held that 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 laid down in the case of D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

With regard to the third ground, the court observed that 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, the court held that that the said confessional statement is not the solitary document or circumstance considered by the Detaining Authority. In this regard, the Supreme Court held as under:

“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.”

The Supreme Court rejected the fourth ground by observing that the said F.I.R. (the copy of which is alleged to be not legible) at best is a referred to document and not relied upon document. The court also observed that the decisions in the cases of State of Tamil Nadu and Another v. Abdullah Kadher Batcha, (2009) 1 SCC 333, and Senthamilselvi v. State of T.N. and Another, (2006) 5 SCC 676, will be of no avail to the petitioner in the backdrop of the findings recorded by it that the copy of above (illegible) F.I.R. furnished to the detenu was only a referred to document.

With respect to the last ground, the Supreme Court observed that 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 said 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 said 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. 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. Thus, this ground was also held as being devoid of merits.

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