BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28/08/2009
CORAM
THE HONOURABLE MR.JUSTICE P.MURGESEN
and
THE HONOURABLE MR.JUSTICE C.S.KARNAN
H.C.P.(MD) No.55 of 2009
Thirumalai Thevar .. Petitioner
vs
1.The Secretary to Government of Tamil Nadu,
Home (Public Law and Order-F) Department,
Fort St. George,
Chennai - 9.
2.The Commissioner of Police,
Tirunelveli City,
Tirunelveli.
3.The Inspector of Police,
Tirunelveli Town,
Tirunelveli.
4.The Secretary to Government of India,
Ministries of Home Affairs,
Department of Internal Security,
North Block,
New Delhi. .. Respondents
R4 Impleaded as per the orders
of the Hon'ble Court made in
M.P.(MD) No.1 of 2009 in H.C.P.
No.51 of 2009 vide orders dated
27.07.2009 by RBIJ, RMJ.
Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus to call for the records pertaining to the proceedings of
the 2nd Respondent in 06/NSA/2008 dated 28.11.2008 and quash the same and to
direct the Respondent to produce the body of the detenu Mani @ Subramanian, aged
28 years, S/o. Thirumalai Thevar before this Hon'ble Court and set him at
liberty, now detained at Central Prison Palayamkottai.
!For petitioner ... Mr.R.Appavu Rathinam
^For respondents 1 to 3 ... Mr.N.Senthur Pandian
Additional Public Prosecutor
For 4th respondent ... Mr.D.Sivaraman
Central Government Standing Counsel
:ORDER
(Order of the Court was made by P.MURGESEN, J)
Challenging the order of the detention, the fahter of the detenu has filed
the petition. The detenu was detained by the second respondent Commissioner of
Police by his detention order No.06/NSA/2008 dated 28.11.2008, under Section (2)
of Section 3 of the National Security Act, 1980 (Central Act 65/1980) read with
the order issued by the Government in G.O.Ms.No.1170/Public (Law and Order – F)
Department, dated 10.10.2008 under Sub Section (3) of Section 3 of the said Act.
2. Learned counsel for the petitioner has urged and stressed five grounds
in support of his stand to show that the detention order is vitiated. According
to him there is no disturbance to public order. So, the stand of the detaining
authority that the detenu has to be detained with a view to prevent him from
acting in any manner prejudicial to the maintenance of public order in future is
not correct. In support of his contention learned counsel for the petitioner
cited the decisions of the Honourable Apex Court in Dipak Rose v. State of W.B.
reported in (1973) 4 Supreme Court Cases 43 and in Angoori Devi v. Union of
India reported in AIR 1989 SUPREME COURT 371 and argued that there is no
disturbance to public order.
3. In Dipak Rose v. State of W.B. reported in (1973) 4 Supreme Court Cases
43 the charge was that the petitioner kidnapped one Kashinath Saha of West
Putiary, P.S. Behala and killed him at K.M.Naskar Road, P.S.Jadavpur and there
by created panic and terror in the locality. The Honourable Supreme Court was
of the view that two individuals who were the victims of the alleged two
assaults, and therefore, do not appear to be relevant grounds affecting the
maintenance of public order for which only the power of detention under the Act
is intended to be used. In that case it was further observed by the Honourable
Apex Court that every assault in a public place like a public road and
terminating in the death of a victim is likely to cause horror and even panic
and terror in those who are the spectators. But that does not mean that all of
such incidents do necessarily cause disturbance or dislocation of the community
life of the localities in which they are committed. There is nothing in the two
incidents set out in the grounds in the present case to suggest that either of
them was of that kind and gravity which would jeopardise the maintenance of
public order. So, since there was no disturbance to public order the detention
order was set aside.
4. In Angoori Devi v. Union of India reported in AIR 1989 SUPREME COURT
371 the offence has been set to be committed under Section 392 r/w 34. So, the
Honourable Supreme Court was of the view that there is no disturbance to public
order. Further, the Honourable Apex Court has held that the impact on “public
order” and “law and order” depends upon the nature of the act, the place where
it is committed and motive force behind it. If the act is confined to an
individual without directly or indirectly affecting the tempo of the life of the
community, it may be a matter of law and order only. But where the gravity of
the act is otherwise and likely to endanger the public tranquillity, it may fall
within the orbit of the public order.
5. So far as this case is concerned, learned Additional Public Prosecutor
pointed out that it is case of communal class between two groups. One Chellappa
was murdered due to property dispute and the detention order would show that the
accused and the Chellappa belonged to different communities. As a result of the
murder of Chellappa, even the tempo of the life of general public was disrupted
at Bharathiyar Street, Tirunelveli Town and surrounding areas. Further the
maintenance of public order was disturbed in the whole area. People inhabiting
at Bharathiyar street stayed inside their homes fearing danger to their lives.
Tense situation prevailed between the particular two caste people in Tirunelveli
Town.
6. No doubt, Tirunelveli Town is a tense place and any incident relating
to caste will lead to disturbance of the public order. Hence, considering the
present case, the conclusion of the detaining authority that he has to be
detained with a view to prevent him from acting in any manner prejudicial to the
maintenance of public order in future is correct. So, the above ground urged by
the learned counsel for the petitioner is not helpful to him. So the
substantive satisfaction arrived at by the detaining authority is correct.
7. Another ground urged by the learned counsel for the petitioner is that
the detaining authority’s satisfaction that there is possibility of the detenu
coming out on bail is not established. It is settled law that there must be
some material to hold that there is possibility of the detenu coming on bail.
8. In the detention order the detaining authority has averred that
” I am aware that Thiru. Mani alias Subramanian is now at Central Prison,
Palayamkottai as remand prisoner and that he has filed a bail application before
the District and Sessions Court, Tirunelveli in Crl.M.P.no.4390/2008 on
25.11.2008 in connection with the case in Tirunelveli Town Police Station Crime
No.954 of 2008 and the same was dismissed on 27.11.2008. I am also aware that
there is real possibility of his coming out on bail by filing another bail
application before the same or higher court in connection with the above case,
since in similar cases bails are granted by the concerned court or higher
court.”
In this case bail application was dismissed on 17.11.2008 and the detention
order was passed on 28.11.2008. So, on the next day of the dismissal of the
bail application, the detention order was clamped on the detenu on the ground
that there is real possibility of the detenu coming out on bail. There must be
satisfactory and acceptable materials on record to enable to detaining authority
to arrive at the conclusion that there is real possibility of the detenu coming
out on bail by filing another bail application. We perused the materials
carefully and meticulously and the respondent is unable to say any ground or
material to show that the subjective satisfaction arrived at by the detaining
authority is based on any material. Absolutely, there is no material to arrive
at the subjective satisfaction. So, the subjective satisfaction arrived on the
next day of the dismissal of the bail application is not correct. Hence, the
order of detention is liable to be set aside on this ground.
9. Another ground urged by the learned counsel for the petitioner is that
there is violation of Section 3(5) of the National Security Act, 1980. Section
3(5) of the National Security Act, 1980 reads as follows:
“3(5) When any order is made or approved by the State Government under this
section, the State Government shall, within seven days, report the fact to the
Central Government together with the grounds on which the order has been made
and such other particulars as, in the opinion of the State Government, have a
bearing on the necessity for the order.”
Relying on this, learned counsel for the petitioner vehemently argued that the
State Government did not report the fact to the Central Government within seven
days from the date of approval. According to him, the detention order was
passed on 28.11.2008 but the State Government did not sent the same to the
Central Government within seven days. To support his contention, learned counsel
for the petitioner relied on the decision of this Honourable Court in K.K.Sheik
Mohideen v. State of Tamil Nadu reported in (2007) 2 MLJ (Crl) 1375.
10. The claim of the counsel for the petitioner is reputed by the learned
Additional Public Prosecutor by pointing out that the detention order was
approved on 08.12.2008 and it was received by the Central Government on
11.12.2008. So, the State Government send a report to the Central Government
within seven days from the date of approval. So, this ground is not helpful to
the petitioner.
11. Another ground raised on the side of the petitioner is that the F.I.R.
in Crime No.954 of 2008 was registered on 12.10.2008, but in page No.13 of the
booklet filed by the respondents reveals that the F.I.R. was registered on
22.10.2008, which creates confusion in the mind of the detenue. We perused the
copy of the F.I.R., wherein it is stated that the F.I.R. was registered on
12.10.2008. But in page No.13, in the penultimate paragraph of the F.I.R., it
is stated that F.I.R. is dated 22.10.2008. So, the material supplied to the
accused would create doubt in his mind. There is no satisfactory explanation on
this aspect from the respondents. Hence, the detention order is liable to be set
aside on this ground also.
12. The last ground raised by the learned counsel for the petitioner is
that the accused surrendered before the 23rd Metropolitan Magistrate, Saidapet,
Chennai on 14.10.2008 as per the endorsement made in the Surrender Petition in
page No.115 of the booklet and the learned Magistrate directed to produce the
detenu on 20.10.2008 before the Judicial Magistrate No.IV, Tirunelveli. But the
Remand Extension Report in page No.133 of the booklet reveals that the detenu
was produced before the Judicial Magistrate No.IV, Tirunelveli only on
22.10.2008. Hence, on 21.10.2008, the detenu was in custody without any legal
sanction and the same was not explained in the ground of detention and which was
not explained in the ground of detention and which was not considered by the
detaining authority while arriving the subjective satisfaction. Learned counsel
for the petitioner also relied on the decision of a Division Bench of this Court
in Mahalakshmi v. Government of Tamil Nadu reported in (2007) 2 MLJ (Crl.)
1634, wherein this Court has held that any variation in the date of occurrence
and preparation of observation mahazar and seizure mahazar is likely to cause
confusion in the mind of the detenu, such mistake cannot be termed as trivial
typographical error.
13. In this case also, in the copy of the surrender petition furnished to
the petitioner there is a request to produce the detenu before the Judicial
Magistrate No.IV, Tirunelveli on 20.10.2008, but the accused was produced before
the Magistrate only on 22.10.2008. It would cause confusion in the mind of the
detenu. There is no satisfactory explanation on the side of the respondent.
Hence, on the grounds Nos.2, 4 and 5 the detention order is liable to set aside.
14.Accordingly, this Habeas Corpus Petition is allowed and the order of
detention in No.06/NSA/2008 dated 28.11.2008, passed by the second respondent is
quashed. The detenu is directed to be released forthwith unless his presence is
required in connection with any other case.
sj
To
1.The Secretary to Government of Tamil Nadu,
Home (Public Law and Order-F) Department,
Fort St. George,
Chennai – 9.
2.The Commissioner of Police,
Tirunelveli City,
Tirunelveli.
3.The Inspector of Police,
Tirunelveli Town,
Tirunelveli.
4.The Secretary to Government of India,
Ministries of Home Affairs,
Department of Internal Security,
North Block,
New Delhi.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.