REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 755 OF 2011
REKHA Appellant (s)
VERSUS
STATE OF T.NADU TR.SEC.TO GOVT. & ANR Respondent(s)
WITH
CRIMINAL APPEAL NO. 756 of 2011
CRIMINAL APPEAL NO. 757 of 2011
CRIMINAL APPEAL NO. 759 of 2011
CRIMINAL APPEAL NO. 760 of 2011
CRIMINAL APPEAL NO. 762 of 2011
CRIMINAL APPEAL NO. 763 of 2011
CRIMINAL APPEAL NO. 764 of 2011
J U D G M E N T
MARKANDEY KATJU, J.
CRIMINAL APPEAL NO. 755 OF 2011
Heard learned counsel for the parties.
This Appeal has come up in a reference made by a
two Judge Bench of this Court by order dated 15.03.2011.
The detenu in this Appeal Ramakrishnan (whose wife
Rekha has filed this Appeal) has been detained by a
detention order dated 08.04.2010 passed under the Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Drug-
offenders, Forest Offenders, Goondas, Immoral Traffic
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Offenders, Sand Offenders, and Slum Grabbers and Video
Pirates Act, 1982, on the allegation that he was selling
expired drugs after tampering with the labels and printing
fresh labels showing them as non-expired drugs. The habeas
corpus petition filed by the wife of the detenu before the
Madras High Court challenging the said detention order has
been dismissed by the impugned order dated 23.12.2010.
Hence, this Appeal.
Several grounds have been raised before us, but, in our
opinion, this Appeal is liable to succeed on one ground
itself, and hence we are not going into the other grounds.
The detention order reads as under :-
"No. 199/2010 Dated 08.04.2010
DETENTION ORDER
Whereas I, T. Rajendran, IPS., Commissioner
of Police, Chennai Police, is satisfied that the
person known as Tr. Ramakrishnan, male aged 35,
S/O Devaraj, No. 82-B, South Mada Veethi,
Villivakkam, Chennai-49 is a Drug Offender as
contemplated under Section 2(e) 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 powers
conferred on me by sub-section (1) of Section 3
of the Tamil Nadu Prevention of Dangerous
Activities of Bootleggers, Drug-offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders,
Sand Offenders, and 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. 6, Home, Prohibition and Excise (XVI)
Department dated 18th January, 2010 under sub-
section (2) of Section 3 of the said Act, I
hereby direct that the said Drug Offender Tr.
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Ramakrishnan, S/o Devaraj, be detained and kept
in custody at the Central Prison, Puzhal,
Chennai.
Given under my hand and seal of this office
the 8th day of April, 2010.”
The relevant part of the grounds on which the said
detention order has been made is as follows :-
“Thiru. Elango, M. Pharm, male aged 43, S/O
Ramasamy is working as a Drug Inspector, Drug
Control Department, Perambur Range, Zone-II,
D.M.S. Complex, Teynampet, Chennai-18. On
15.03.2010, Thiru. Elango appeared before the
Inspector of Police, Crimes P-6 Kodungaiyur
Police Station and lodged a complaint against
Thiruvalargal, Prabhakar @ Ravi, 2) Venkatesan,3) Sanjay Kumar, 4) Sekar, 5) Baskar, 6) Pradeep
Kumar Chordia and 7) Meenakshi Sundaram.In his complaint, he has stated that expired
drugs collected from the medical shops of Chennai
city and Suburban used to be dumped at dump yard
of Corporation ground at Ezhil Nagar,
Kodungaiyur, Chennai. On 15.3.2010, Thiru,
Elango received a secret information that expired
drugs dumped at the dump yard at Corporation
ground, Ezhil Nagar, Kodungaiyur, Chennai, were
taken by Thiru. Prabhakar @ Ravi residing at the
first floor of No. A-6/541, 151st Street,
Muthamizh Nagar, Kodungaiyur, Chennai and by
keeping the same with his associates tampered the
same tampering the original labels and printing
fresh labels to make it appear as though they are
not expired drugs and redistribute the same for
sale to the general public.”:3:
In para 4 of the grounds of detention, it is stated :-
“4. I am aware that Thiru. Ramakrishnan, is in
remand in P.6, Kodungaiyur Police Station Crime
No. 132/2010 and he has not moved any bail
application so far. The sponsoring authority
has stated that the relatives of Thiru.
Ramakrishnan are taking action to take him on
bail in the above case by filing bail
applications before the Higher courts since in
similar cases bails were granted by the Courts
after a lapse of time. Hence, there is real
possibility of his coming out on bail in the
above case by filing a bail application before
the higher courts. If he comes out on bail he
will indulge in further activities, which will
be prejudicial to the maintenance of public
health and order. Further the recourse to
normal criminal law would not have the desired
effect of effectively preventing him from
indulging in such activities, which are
prejudicial to the maintenance of public health
and order. On the materials placed before me, I
am fully satisfied that the said Thiru.
Ramakrishnan is also a Drug Offender and that
there is a compelling necessity to detain him in
order to prevent him from indulging in such
further activities in future which are
prejudicial to the maintenance of public order
under the provisions of Tamil Nadu Act 14 of
1982.”A perusal of the above statement in para 4 of the
grounds of detention shows that no details have been given
about the alleged similar cases in which bail was allegedly
granted by the concerned court. Neither the date of the
alleged bail orders has been mentioned therein, nor the bail
application number, nor whether the bail orders were passed
in respect of the co-accused on the same case, nor whether
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the bail orders were passed in respect of other co-
accused in cases on the same footing as the case of the
accused. All that has been stated in the grounds of
detention is that “in similar cases bails were granted by
the courts”. In our opinion, in the absence of details this
statement is mere ipse dixit, and cannot be relied upon.
In our opinion, this itself is sufficient to vitiate
the detention order.
It has been held in T.V. Sravanan alias S.A.R. Prasana
Venkatachaariar Chaturvedi Vs. State through Secretary and
Anr., (2006) 2 SCC 664; A. Shanthi (Smt.) Vs. Govt. of
T.N. and Ors., (2006) 9 SCC 711; Rajesh Gulati Vs. Govt.
of NCT of Delhi and Anr. (2002) 7 SCC 129, etc. that if no
bail application was pending and the detenue was already, in
fact, in jail in a criminal case, the detention order under
the preventive detention law is illegal. These decisions
appear to have followed the Constitution Bench decision in
Haradhan Saha Vs. State of West Bengal, (1975) 3 SCC 198,
wherein it has been observed (vide para 34):
“Where the concerned person is actually in jail
custody at the time when an order of detention is
passed against him and is not likely to be
released for a fair length of time, it may be
possible to contend that there could be no
satisfaction on the part of the detaining
authority as to the likelihood of such a person
indulging in activities which would jeopardise
the security of the State or public order.”:5:
On the other hand, Mr. Altaf Ahmed, learned
senior counsel appearing for the State of Tamil Nadu, has
relied on the judgments of this Court in A. Geetha Vs.
State of T.N. And Anr. (2006) 7 SCC 603; and Ibrahim
Nazeer Vs. State of T.N. and Anr., (2006) 6 SCC 64,
wherein it has been held that even if no bail application
of the petitioner is pending but if in similar cases bail
has been granted, then this is a good ground for the
subjective satisfaction of the detaining authority to pass
the detention order.
In our opinion, if details are given by the
respondent authority about the alleged bail orders in
similar cases mentioning the date of the orders, the bail
application number, whether the bail order was passed in
respect of co-accused in the same case, and whether the
case of the co-accused was on the same footing as the case
of the petitioner, then, of course, it could be argued that
there is likelihood of the accused being released on bail,
because it is the normal practice of most courts that if a
co-accused has been granted bail and his case is on the
same footing as that of the petitioner, then the petitioner
is ordinarily granted bail. However, the respondent
authority should have given details about the alleged bail
order in similar cases, which has not been done in the
present case. A mere ipse dixit statement in the grounds
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of detention cannot sustain the detention order and has to
be ignored.
In our opinion, the detention order in question
only contains ipse dixit regarding the alleged imminent
possibility of the accused coming out on bail and there was
no reliable material to this effect. Hence, the detention
order in question cannot be sustained.
Moreover, even if a bail application of the
petitioner relating to the same case was pending in a
criminal case the detention order can still be challenged
on various grounds e.g. that the act in question related to
law and order and not public order, that there was no
relevant material on which the detention order was passed,
that there was mala fides, that the order was not passed by
a competent authority, that the condition precedent for
exercise of the power did not exist, that the subjective
satisfaction was irrational, that there was non-application
of mind, that the grounds are vague, indefinite,
irrelevant, extraneous, non-existent or stale, that there
was delay in passing the detention order or delay in
executing it or delay in deciding the representation of the
detenu, that the order was not approved by the government,
that there was failure to refer the case to the Advisory
Board or that the reference was belated, etc.
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In our opinion, Article 22(3)(b) of the
Constitution of India which permits preventive
detention is only an exception to Article 21 of the
Constitution. An exception is an exception, and cannot
ordinarily nullify the full force of the main rule, which
is the right to liberty in Article 21 of the Constitution.
Fundamental rights are meant for protecting the civil
liberties of the people, and not to put them in jail for a
long period without recourse to a lawyer and without a
trial. As observed in R Vs. Secy. Of State for the Home
Dept., Ex Parte Stafford, (1998) 1 WLR 503 (CA) :-
“The imposition of what is in effect a
substantial term of imprisonment by the exercise
of executive discretion, without trial, lies
uneasily with ordinary concepts of the rule of
law.”Article 22, hence, cannot be read in isolation but
must be read as an exception to Article 21. An exception
can apply only in rare and exceptional cases, and it cannot
override the main rule.
Article 21 is the most important of the
fundamental rights guaranteed by the Constitution of India.
Liberty of a citizen is a most important right won by our
forefathers after long, historical, arduous struggles. Our
Founding Fathers realised its value because they
had seen :8:
during the freedom struggle civil liberties of our
countrymen being trampled upon by foreigners, and that is
why they were determined that the right to individual
liberty would be placed on the highest pedestal along with
the right to life as the basic right of the people of
India.
Right to liberty guaranteed by Article 21 implies
that before a person is imprisoned a trial must ordinarily
be held giving him full opportunity of hearing, and that
too through a lawyer, because a layman would not be able to
properly defend himself except through a lawyer.
The importance of a lawyer to enable a person to
properly defend himself has been elaborately explained by
this Court in A.S. Mohd. Rafi Vs. State of Tamilnadu, AIR
2011 SC 308, and in Md. Sukur Ali Vs. State of Assam,
JT 2011 (2) SC 527. As observed by Mr Justice Sutherland of
the U.S. Supreme Court in Powell Vs. Alabama, 287 U.S.
45 (1932) “Even the intelligent and educated layman has
small and sometimes no skill in the science of law”, and
hence, without a lawyer he may be convicted though he is
innocent.
Article 22(1) of the Constitution makes it a
fundamental right of a person detained to consult and be
defended by a lawyer of his choice. But Article 22(3)
specifically excludes the applicability of clause (1) of
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Article 22 to cases of preventive detention. Therefore, we
must confine the power of preventive detention to very
narrow limits, otherwise the great right to liberty won by
our Founding Fathers, who were also freedom fighters, after
long, arduous, historical struggles, will become nugatory.
In State of of Maharashtra & Ors. Vs. Bhaurao
Punjabrao Gawande, (2008) 3 SCC 613 (para 23) this Court
observed :
“…Personal liberty is a precious right. So did
the Founding Fathers believe because, while their
first object was to give unto the people a
Constitution whereby a government was
established, their second object, equally
important, was to protect the people against the
government. That is why, while conferring
extensive powers on the government like the power
to declare an emergency, the power to suspend the
enforcement of fundamental rights or the power to
issue ordinances, they assured to the people a
Bill of Rights by Part III of the Constitution,
protecting against executive and legislative
despotism those human rights which they regarded
as fundamental. The imperative necessity to
protect these rights is a lesson taught by all
history and all human experience. Our
Constitution makers had lived through bitter
years and seen an alien Government trample upon
human rights which the country had fought hard to
preserve. They believed like Jefferson that “an
elective despotism was not the Government we
fought for”. And, therefore, while arming the
Government with large powers to prevent anarchy
from within and conquest from without, they took
care to ensure that those powers were not abused
to mutilate the liberties of the people. (vide
A.K. Roy Vs. Union of India (1982) 1 SCC 271,
and Attorney General for India Vs. Amratlal
Prajivandas, (1994) 5 SCC 54.”[emphasis supplied]
:10:In the Constitution Bench decision of this Court in
M. Nagaraj & Ors. Vs. Union of India & Ors. (2006) 8 SCC
212, (para 20) this Court observed :
“It is a fallacy to regard fundamental rights as
a gift from the State to its citizens.Individuals possess basic human rights
independently of any Constitution by reason of
the basic fact that they are members of the human
race.”In the 9 Judge Constitution Bench decision of this
Court in I.R. Coelho (dead) By LRs. Vs. State of T.N.,
(2007) 2 SCC 1 (vide paragraphs 109 and 49), this Court
observed :
“It is necessary to always bear in mind that
fundamental rights have been considered to be the
heart and soul of the Constitution…..Fundamental
rights occupy a unique place in the lives of
civilized societies and have been described in
judgments as “transcendental”, “inalienable”, and
primordial”.In our opinion, Article 22(3)(b) cannot be read in
isolation, but must be read along with Articles 19 and 21,
vide Constitution Bench decision of this Court in A.K. Roy
Vs. Union of India (1982) 1 SCC 271 (para 70).
It is all very well to say that preventive
detention is preventive not punitive. The truth of the
matter, though, is :11:
that in substance a detention order of one year (or any other
period) is a punishment of one year’s imprisonment. What
difference is it to the detenu whether his imprisonment is
called preventive or punitive?
Mr. Altaf Ahmed, learned senior counsel for the
respondents, submitted that there are very serious
allegations against the detenu of selling expired drugs after
removing the original labels and printing fresh labels to
make them appear as though they are not expired drugs.
In this connection, criminal cases are already going on
against the detenu under various provisions of the Indian
Penal Code as well as under the Drugs and Cosmetics Act, 1940
and if he is found guilty, he will be convicted and given
appropriate sentence. In our opinion, the ordinary law of
the land was sufficient to deal with this situation, and
hence, recourse to the preventive detention law was illegal.
Mr. Altaf Ahmed, learned senior counsel, further
submitted that the impugned detention order was passed on
08.04.2010, and the bail application of the detenu was also
dismissed on the same date. Hence, he submitted that it
cannot be said that no bail application was pending when the
detention order in question was passed.
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In this connection, it may be noted that there is
nothing on the record to indicate whether the detaining
authority was aware of the fact that the bail application of
the accused was pending on the date when the detention order
was passed on 08.04.2010. On the other hand, in para 4 of
the grounds of detention it is mentioned that “Thiru.
Ramakrishnan is in remand in crime No. 132/2010 and he has
not moved any bail application so far”. Thus, the detaining
authority was not even aware whether a bail application of
the accused was pending when he passed the detention order,
rather the detaining authority passed the detention order
under the impression that no bail application of the accused
was pending but in similar cases bail had been granted by the
courts. We have already stated above that no details of the
alleged similar cases has been given. Hence, the detention
order in question cannot be sustained.
It was held in Union of India Vs. Paul Manickam
and another, (2003) 8 SCC 342, that if the detaining
authority is aware of the fact that the detenu is in
custody and the detaining authority is reasonably satisfied
with cogent material that there is likelihood of his release
and in view of his antecedent activities he must be detained
to prevent him from indulging in such prejudicial activities,
the detention order can validly be made.
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In our opinion, there is a real possibility of
release of a person on bail who is already in custody
provided he has moved a bail application which is pending.
It follows logically that if no bail application is pending,
then there is no likelihood of the person in custody being
released on bail, and hence the detention order will be
illegal. However, there can be an exception to this rule,
that is, where a co-accused whose case stands on the same
footing had been granted bail. In such cases, the detaining
authority can reasonably conclude that there is likelihood of
the detenu being released on bail even though no bail
application of his is pending, since most courts normally
grant bail on this ground. However, details of such alleged
similar cases must be given, otherwise the bald statement of
the authority cannot be believed.
Mr. Altaf Ahmed, learned senior counsel, further
submitted that we are taking an over technical view of the
matter, and we should not interfere with the preventive
detention orders passed in cases where serious crimes have
been committed. We do not agree.
Prevention detention is, by nature, repugnant to
democratic ideas and an anathema to the rule of law. No such
law exists in the USA and in England (except during war
time). Since, however, Article 22(3)(b) of the Constitution
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of India permits preventive detention, we cannot hold it
illegal but we must confine the power of preventive detention
within very narrow limits, otherwise we will be taking away
the great right to liberty guaranteed by Article 21 of the
Constitution of India which was won after long, arduous,
historic struggles. It follows, therefore, that if the
ordinary law of the land (Indian Penal Code and other penal
statutes) can deal with a situation, recourse to a preventive
detention law will be illegal
Whenever an order under a preventive detention law
is challenged one of the questions the court must ask in
deciding its legality is : Was the ordinary law of the land
sufficient to deal with the situation ? If the answer is in
the affirmative, the detention order will be illegal. In the
present case, the charge against the detenu was of selling
expired drugs after changing their labels. Surely the
relevant provisions in the Indian Penal Code and the Drugs
and Cosmetics Act were sufficient to deal with this
situation. Hence, in our opinion, for this reason also the
detention order in question was illegal.
In this connection, it may be noted that it is true
that the decision of the 2 Judge Bench of this Court in Biram
Chand Vs. State of Uttar Pradesh & Anr, (1974) 4 SCC 573,
was overruled by the Constitution Bench decision in Haradhan
Saha’s case (supra) (vide para 34). However, we should
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carefully analyse these decisions to correctly understand the
legal position.
In Biram Chand’s case (supra) this Court held that
the authorities cannot take recourse to criminal proceedings
as well as pass a preventive detention order on the same
facts (vide para 15 of the said decision). It is this view
which was reversed by the Constitution Bench decision in
Haradhan Saha’s case (supra).
This does not mean that the Constitution Bench laid
down that in all cases the authorities can take recourse to
both criminal proceedings as well as a preventive detention
order even though in the view of the Court the former is
sufficient to deal with the situation.
This point which we are emphasizing is of extreme
importance, but seems to have been overlooked in the
decisions of this Court.
No doubt it has been held in the Constitution Bench
decision in Haradhan Saha’s case (supra) that even if a
person is liable to be tried in a criminal court for
commission of a criminal offence, or is actually being so
tried, that does not debar the authorities from passing a
detention order under a preventive detention law. This
observation, to be understood correctly, must, however, be
construed in the background of the constitutional scheme in
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Articles 21 and 22 of the Constitution (which we have already
explained). Articles 22(3)(b) is only an exception to
Article 21 and it is not itself a fundamental right. It is
Article 21 which is central to the whole chapter on
fundamental rights in our Constitution. The right to liberty
means that before sending a person to prison a trial must
ordinarily be held giving him opportunity of placing his
defence through his lawyer. It follows that if a person is
liable to be tried, or is actually being tried, for a
criminal offence, but the ordinary criminal law (Indian Penal
Code or other penal statutes) will not be able to deal with
the situation, then, and only then, can the preventive
detention law be taken recourse to.
Hence, the observation in para 34 in Haradhan
Saha’s case (supra) cannot be regarded as an unqualified
statement that in every case where a person is liable to be
tried, or is actually being tried, for a crime in a criminal
court a detention order can also be passed under a preventive
detention law.
It must be remembered that in cases of preventive
detention no offence is proved and the justification of such
detention is suspicion or reasonable probability, and there
is no conviction which can only be warranted by legal
evidence. Preventive detention is often described as a
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‘jurisdiction of suspicion’, (Vide State of Maharashtra Vs.
Bhaurao Punjabrao Gawande, (supra) – para 63). The detaining
authority passes the order of detention on subjective
satisfaction. Since clause (3) of Article 22 specifically
excludes the applicability of clauses (1) and (2), the detenu
is not entitled to a lawyer or the right to be produced
before a Magistrate within 24 hours of arrest.
To prevent misuse of this potentially dangerous
power the law of preventive detention has to be strictly
construed and meticulous compliance with the procedural
safeguards, however, technical, is, in our opinion, mandatory
and vital.
It has been held that the history of liberty is the
history of procedural safeguards. (See : Kamleshkumar
Ishwardas Patel Vs. Union of India and others (1995) 4 SCC
51, vide para 49). These procedural safeguards are required
to be zealously watched and enforced by the court and their
rigour cannot be allowed to be diluted on the basis of the
nature of the alleged activities of the detenu.
As observed in Rattan Singh Vs. State of Punjab,
(1981) 4 SCC 1981 :-
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“May be that the detenu is a smuggler whose tribe
(and how their numbers increase!) deserves no
sympathy since its activities have paralysed the
Indian economy. But the laws of preventive
detention afford only a modicum of safeguards to
persons detained under them, and if freedom and
liberty are to have any meaning in our democratic
set-up, it is essential that at least those
safeguards are not denied to the detenus.”As observed in Abdul Latif Abdul Wahab Sheikh
Vs. B.K. Jha and another (1987) 2 SCC 22, vide para 5, :
“…The procedural requirements are the only
safeguards available to a detenu since the courtis not expected to go behind the subjective
satisfaction of the detaining authority. The
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….”
As observed by Mr. Justice Douglas of the United
States Supreme Court in Joint Anti-Fascist Refugee
Committee Vs. McGrath, 341 US 123 at 179, “It is
procedure that spells much of the difference between rule
of law and rule of whim or caprice. Steadfast adherence to
strict procedural safeguards are the main assurances that
there will be equal justice under law.”
Procedural rights are not based on sentimental
concerns for the detenu. The procedural safeguards are not
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devised to coddle criminals or provide technical loopholes
through which dangerous persons escape the consequences of
their acts. They are basically society’s assurances that
the authorities will behave properly within rules distilled
from long centuries of concrete experiences.
Personal liberty protected under Article 21 is so
sacrosanct and so high in the scale of constitutional
values that it is the obligation of the detaining authority
to show that the impugned detention meticulously accords
with the procedure established by law. The stringency and
concern of judicial vigilance that is needed was aptly
described in the following words in Thomas Pacham Dale’s
case, (1881) 6 QBD 376, :
“Then comes the question upon the habeas corpus.
It is a general rule, which has always been acted
upon by the Courts of England, that if any person
procures the imprisonment of another he must take
care to do so by steps, all of which are entirely
regular, and that if he fails to follow every
step in the process with extreme regularity the
court will not allow the imprisonment to
continue.”
For the reasons given above, this Appeal is
allowed, the impugned order is set aside and the impugned
detention order is quashed. However, we make it clear that
this will not affect the criminal cases pending against the
alleged accused.
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We further direct that the concerned detenu in
this Appeal shall be released forthwith if not required in
any other case.
CRIMINAL APPEAL NO. 756 of 2011; CRIMINAL APPEAL NO. 757 of
2011; CRIMINAL APPEAL NO. 759 of 2011; CRIMINAL APPEAL NO.
760 of 2011; CRIMINAL APPEAL NO. 762 of 2011; CRIMINAL
APPEAL NO. 763 of 2011; CRIMINAL APPEAL NO. 764 of 2011
The Order passed in CRIMINAL APPEAL NO. 755 OF
2011 will also govern these Appeals.
Accordingly, for the reasons given in the Order
passed in CRIMINAL APPEAL NO. 755 OF 2011, these Appeals
are allowed, the impugned common order is set aside and the
impugned detention orders are quashed. However, we make it
clear that this will not affect the criminal cases pending
against the alleged accused persons.
We further direct that the concerned detenus in
these Appeals shall be released forthwith if not required
in any other case.
……………………J.
(MARKANDEY KATJU)
…………………….J.
(SURINDER SINGH NIJJAR)
NEW DELHI; …………………….J.
APRIL 05, 2011 (GYAN SUDHA MISRA)
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