J AMEERGANI Vs. STATE OF TAMILNADU

JUDGEMENT

(1.) THE present habeas corpus petition has been filed by the wife of the detenu who has been detained as per the detention order, dated 19. 12. 2004, issued by the Commissioner of Police, Tiruchirappalli City. THE said order of preventive detention has been passed under Section 3 (1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) hereinafter referred to as "the Act", read with orders issued by the Government in G.O.(D)No.258, Prohibition and Excise (XVI) Department, dated 18th October 2004.

(2.) THE grounds of detention disclose that the detenu Jaheer Hussain and his associates were engaged in illegal activities of copying and selling of new cinema films and obscene films without copy right and a case had been registered under section 292(A) IPC read with 51(B) read with 63(B) and 52(A) read with 68(A) of the Copyright Act on 17. 03. 2004 and in the said case, the detenu has been released on bail and the matter was pending trial. Subsequently, on 16. 12. 2004, a complaint was filed by one Sivappusamy alleging that the detenu Jaheer Hussain was engaged in commission of offences of infringement of copy right in relation to obscene film and audio discs. On the basis of the such complaint, the Inspector of Police, VPC, CB CID, Tiruchirappalli, registered a case under sections 51(a)(i), (b)(i) read with 63, 65, 52(A) read with 68(A) of Copyright Act, 1957 and Section 292(A) IPC. 2. 1.On the basis of the search warrant issued by the Judicial Magistrate, the police found that the detenu was copying second disc of the new cinematograph film 'Attakasam' and thereafter the detenu was apprehended by the Inspector of Police. During search, a Samsung Monitor, CPU, Key Board, Mouse, Video Compact Discs containing Tamil films, VCD commedy/songs, Audio Discs, obscene film discs and obscene film VCD Discs, etc. have been found. THE detenu, on enquiry, admitted that he was engaged in copying of cinematograph films and obscene films by getting master CD through unidentified broker. THEreafter, the accused Jaheer Hussain was produced before the Magistrate on 16. 12. 2004 and was remanded till 30. 12. 2004. 2. 2. On the basis of the aforesaid incident, the Commissioner of Police, who has been authorised under Section 3(2) of the Act came to the conclusion that the detenu Jaheer Hussain was acting in a manner prejudicial to the maintenance of public order being "video pirate" as contemplated under Section 2(j) of the Act. On the basis of such conclusion, the detenu has been kept under preventive detention by orde4r dated 19. 12. 2004. 2. 3. Such order has been challenged in this habeas corpus petition mainly on the ground that such order of detention has been passed in violation of Articles 14, 19, 21 and 22 of the Constitution of India and the order of detention has been passed mechanically without application of mind. It is further contended that the representation, dated 29. 12. 2004, has not been disposed of in time. Subsequently, additional affidavit has been filed with a petition seeking for raising additional grounds by challenging the validity of the amendment to the Act 14 of 1982, wherein the provisions relating to preventive detention in respect of "Video Pirate" have been incorporated. Challenge to the validity of the amended Act is on the ground that Copyright Act is an Act of the Union of India under Entry 49; List-I of Schedule-VII of the Constitution of India and the State Legislature lacks competence to enact on a subject included within List-I. THE other ground taken in the additional ground relates to the non-application of mind on the footing that the detenu was arrested on 16. 12. 2004 at 8. 15 a.m. and the sponsoring authority prepared the affidavit on 18. 12. 2004 and placed it before the detaining authority who passed the order on 19. 12. 2004, which indicated that there was no application of mind in passing the detention order in a hurried manner without going into the materials furnished by the sponsoring authority.

(3.) THE substratum of the submissions made by the counsel for the petitioner is to the effect that the amendment made to Tamil Nadu Act 14 of 1982 under the Amending Act 32 of 2004 in effect is a legislation relating to the Copy Right Act, 1957 which relatable to Entry 49 of List-I of Schedule-VII. THE definition "Video Pirate" under Section 2(1)(j) of the Tamil Nadu Act 14 of 1982, as amended by Act 32 of 2004, is clearly a legislation relating to "Copyright" included in Entry 49 of List-I and as such, it is beyond the legislative competence of the State Legislature. It is his submission that this amendment is in relation to offences committed under the Copy Right Act and such amendment could not have been effected by the State Legislature. He has submitted that the State Legislature has competence to legislate only in respect of subjects included in List-II in Schedule VII, which is the State List or in List-III in the VII-Schedule which relates to concurrent list.