THE HONOURABLE MR.JUSTICE D.MURUGESAN
THE HONOURABLE MR.JUSTICE C.S.KARNAN
H.C.P.No.400 of 2009
S.Sasikala Sampath .. Petitioner
1. State of Tamil Nadu
rep.by its Secretary to Government
Public (Law and Order-F)
Government of Tamil Nadu
Secretariat, Fort St.George
Chennai 600 009
2. The District Magistrate
and District Collector
Tirupur District, Cotton Market Buildings
Palladam Road, Tirupur, Tirupur District .. Respondents
Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for the records relating to the proceedings of the second respondent made in Cr.M.P.No.01/NSA/2009 dated 14.03.2009 and quash the same and direct the respondents to produce the corpus of the detenu Naanchil Sampath son of M.Baskaran, now detained at the Central Prison, Coimbatore before this Hon'ble Court and set him at liberty. For Petitioner :: Mr.Vaiko for
For Respondents :: Mr.S.Ramasamy Additional Advocate General-II
Mr.M.Babu Muthu Meeran
Additional Public Prosecutor and
Government Adcocate (Crl.Side)
(Order of the Court was delivered by D.MURUGESAN, J.)
The petitioner Tmt.S.Sasikala Sampath is the wife of the detenu Thiru Naanchil Sampath, who has been detained under Section 3(2) of the National Security Act, 1980 by the detention order dated 14.3.2009 passed by the District Magistrate and District Collector, Tirupur District.
2. The detention order came to be passed under the following circumstances. The Liberation Tigers of Tamil Eelam (LTTE) is an unlawful association under the Unlawful Activities (Prevention) Act, 1976 and banned by the Government of India and republished in the Tamil Nadu Government Gazette Extraordinary ordered vide G.O.Ms.No.606, Public (SC) Department dated 16.05.2008. The said LTTE continues to remain a strong terrorist movement and stimulate the secessionist sentiments to enhance the support base of the LTTE in Tamil Nadu as long as Srilanka continues to remain in a state of ethnic strife born by the demand for Tamil Eelam which finds a strong echo in Tamil Nadu due to the linguistic, cultural, ethnic and historical affinity between the Srilankan Tamils and the Indian Tamils.
3. On 1.3.2009, at about 2.00 p.m., the detenu delivered a speech at Harvey Kumarasamy Kalyana Mandapam in Tirupur North Police Station limits in a meeting organized by the Students Federation in respect of the prevailing conditions of Tamil population in Srilanka. He uttered the following words:
VERNACULAR (TAMIL) PORTION DELETED
A complaint was given by one Thiru K.Ganesh on 6.3.2009 which was registered in Tirupur North Police Station Crime No.1127 of 2009 under Section 153(B)(1)(a) IPC r/w 13(1)(b) of Unlawful Activities (Prevention) Act, 1967. He was arrested at about 8.00 p.m., on 7.3.2009 and was produced before the Judicial Magistrate, Avinashi, holding additional charge, on 8.3.2009 and was remanded to judicial custody on the same day till 20.3.2009. He was confined in the Central Prison, Coimbatore as a remand prisoner. When the detenu was produced before the Magistrate, he himself filed a bail application and thereafter the learned Magistrate directed the detenu to be produced before the Court on 11.3.2009 and 12.3.2009. However, he was not produced in person, but the remand was extended through video conference. Later he was produced before the Magistrate on 14.3.2009 and on which date he was granted bail subject to certain conditions.
4. In the meantime, the Inspector of Police (L&O), Tirupur North Police Station sent his affidavit dated 12.3.2009 together with the connected materials to the detaining authority recommending action under Section 3(2) of the National Security Act. While those materials were under consideration, the bail order dated 14.3.2009 was placed before the detaining authority and on consideration of the materials including the bail order, the detaining authority came to the conclusion that there was an imminent possibility of the detenu coming out on bail and the speech delivered by him was prejudicial to the maintenance of public order and in order to effectively prevent the detenu from indulging in such activities, he should be detained under the National Security Act. Accordingly, the detaining authority passed the detention order.
5. The said detention order is assailed before this Court. Mr.Vaiko, learned counsel for the petitioner advanced his arguments primarily on the following three grounds:
(i) The material papers running 212 pages were placed before the detaining authority on 14.3.2009, the day on which the detention order was passed. It is humanly impossible for the detaining authority to apply his mind to arrive at the subjective satisfaction that the detenu must be detained. Application of mind by the detaining authority is not a mere formality and it must be real and must be such that it should satisfy the Court as to the application of mind. A mere awareness as to the materials by the detaining authority is not sufficient, as the satisfaction based on those materials by proper application of mind is relevant. (ii) At the time the bail order was passed, the detenu filed a written statement before the Court and the copy of the written statement is not furnished to him. The contents of the written statement are relevant and the failure on the part of the sponsoring authority to place the said written statement before the detaining authority and consequently the failure on the part of the detaining authority in not considering the same and also to furnish such a copy to the detenu would vitiate the detention order. He would further submit that considering the defence taken by the detenu, the learned Magistrate had granted bail. The contents of the bail order are relevant for the detaining authority to arrive at satisfaction regarding compelling necessity to pass the detention order. There is no application of mind by the detaining authority as to the contents of the bail order except stating that there is an imminent possibility of the detenu coming out on bail after coming to know that the bail has been already ordered. Had the detaining authority applied his mind to the contents of the bail order, he would not have arrived at the satisfaction to pass detention order, which exhibits total non-application of mind to the bail order. (iii) A single speech delivered by the detenu cannot be the basis for the detention order and that too, the said speech was delivered due to the ordeals faced by Tamils in Srilanka and the said speech does not in any way intend to affect the national security. In any case, the speech was delivered within a closed premises, wherein only 350 participants including five women were present, and no materials were placed before the detaining authority to indicate any act prejudicial to the public order had occurred after the speech. The intention to indulge in activities which are prejudicial to the maintenance of public order must be supported by materials, as the mens rea is also a relevant factor. In the absence of those materials, particularly, no untoward incident prejudicial to the maintenance of public order had occurred after the delivery of speech between 1.3.2009 and 7.3.2009 when the detenu was arrested and in fact no occurrence prejudicial to the public order took place even after his arrest. Hence there is absolutely no materials to show that the detenu had indulged in activities which are prejudicial to the maintenance of public order and therefore the satisfaction of the detaining authority to pass the detention order only to prevent the detenu from indulging in such activities is unsupported by any material and consequently the detention order is liable to be set aside.
6. In opposing the petition, Mr.S.Ramasamy, learned Additional Advocate General has submitted that insofar as the non-application of mind on the part of the detaining authority is concerned, the sponsoring authority had forwarded the affidavit dated 12.3.2009 along with the documents, which were received by the detaining authority on the same day and the detaining authority had at least two clear days for considering those materials. The only document produced before the detaining authority on 14.3.2009 is the bail order. Hence it is not correct to say that all the materials were placed before the detaining authority on 14.3.2009. The learned Additional Advocate General has also submitted that insofar as the bail order is concerned, it was produced before the detaining authority by the sponsoring authority on 14.3.2009, as could be seen from the counter affidavit. A mere failure to file an additional affidavit or a covering letter along with the copy of the bail order before the detaining authority would not vitiate the satisfaction of the detaining authority arrived on the basis of the said bail order. The learned Additional Advocate General has further submitted that the speech, as published in the dailies, would indicate the intention of the detenu to form a separate Tamil State which speech by itself would constitute an act prejudicial to the public order and against the national security.
7. We have carefully considered the rival contentions. Before we go into the respective contentions, we may usefully refer to the settled law on preventive detention. Our country is governed by rule of law and every citizen is guaranteed that he/she should not be punished without there being a proper trial and without there being a verdict by a competent Court of law. An order of detention is not punitive nor curative nor reformative, but it is only a preventive action. It is also distinct from criminal proceedings, as the object is not punitive but only preventive. The power vested in the authorities to order preventive detention is only an exception and it could be resorted by following scrupulously the procedures which would safeguard the fundamental right guaranteed under Articles 21 & 22 of the Constitution of India. As against the preventive detention orders, the fundamental right guaranteed for the citizens must prevail. Such valuable rights can only be deprived in accordance to the procedure established by law. Generally, imprisonment without trial is anathema in any country which observes rule of law, but with certain exception like detention laws. While considering the challenge to the detention order, the Court must apply its mind as to whether the detaining authority has scrupulously followed the procedures and any infraction or procedural lapses which ultimately result in violation of the fundamental right guaranteed.
8. Detention order could be passed on the basis of the satisfaction of the detaining authority arrived at by applying the mind to all the materials available on record. Such satisfaction cannot be piecemeal, which may result in pre-drawn conclusion. In the event all relevant materials are not placed at the same time and considerations are made piecemeal, such process may lead to finding reasons to support the preconceived formulations. The sponsoring authority while forwarding the affidavit dated 12.3.2009 has also sent the materials in support of the recommendations. Admittedly, the bail order dated 14.3.2009 could not have been forwarded to the detaining authority, as the bail order was passed only on 14.3.2009. On the above admitted factual position, this Court should find as to whether the satisfaction arrived by the detaining authority could stand the test and the scrutiny of law to justify the same. According to the available records, the materials placed before the detaining authority along with the affidavit of sponsoring authority contain more than 200 pages. Even assuming that the detaining authority had sufficient time to scrutinise those materials to form his satisfaction, such satisfaction cannot be called to be final to pass orders till the bail order was placed on 14.3.2009. Even when an application for bail is pending, the detaining authority could arrive at a satisfaction that there is a possibility of the detenu to come out on bail, as he has already filed a bail application. But on the given case, the detaining authority had referred to the bail order dated 14.3.2009 which was placed before him on the date of passing the detention order. The bail order is a relied upon document as could be seen from the detention order. In the detention order, the sponsoring authority has stated that though the detenu was granted bail on 14.3.2009, he was not released, as he did not produce the sureties. Firstly the bail order was placed before the detaining authority just before the detention order was passed. The application of mind relating to whether the detenu had indulged in activities which are prejudicial to the maintenance of public order and if he is not detained, he would indulge in similar activities in future thereby he should be prevented from indulging in similar activities should be supported by materials. The consideration and satisfaction must be simultaneous and cannot be piecemeal. Insofar as the satisfaction of the authority as to the compelling necessity to prevent the detenu, if not, the detenu may come out on bail, there are no materials for the detaining authority to satisfy himself that the detenu had not produced sureties and therefore he has not come out on bail. There is absolutely no material placed before the detaining authority as to the fact that the detenu had not produced sureties except the bail order. In the absence of such material, the satisfaction of the detaining authority that the detenu who was in custody on the date of the detention order could not come out on bail for his failure to produce sureties suffers from non-application of mind.
9. Insofar as the speech allegedly made by the detenu on 1.3.2009, the sponsoring authority has filed the relevant materials including the paper cuttings. There are materials for the detaining authority to satisfy himself as to those materials to form an opinion that the detenu had indulged in the act which is prejudicial to the maintenance of public order. However, the sponsoring authority has stated that "Hence his speech was allegedly to incite the public to lose the faith and allegiance to the Constitution of India and impeach the sovereignty and integrity of India and thereby prejudicial to the maintenance of public order." To support the second limb of the allegation that the speech would lead to the public disorder to incite the public to lose faith and allegiance to the Constitution of India and impeach the sovereignty and integrity of India, no materials were placed before the detaining authority. The speech was delivered on 1.3.2009 in a closed premises where 350 students attended. No materials were produced before the detaining authority to show that the detenu had indulged in similar activities till he was arrested on 7.3.2009. In the absence of any material, the satisfaction arrived by the detaining authority that in order to prevent the detenu from indulging in similar activities in future and if not prevented he may indulge in such activity, would amount to non-application of mind and consequently would vitiate the detention order.
10. In the judgment in Gulab Mehra v. State of U.P., AIR 1987 SC 2332, the Apex Court has held that "in order to bring the act which will affect the public order, such order must depend upon the effect of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of life of the community." A similar view was taken in State of U.P. v. Sanjai Pratap Gupta, (2004) 8 SCC 591. (See also Kishori Mohan Bera v. State of W.B. (1972) 3 SCC 845; Pushkar Mukherjee v. State of W.B. (1969) 1 SCC 10; Arun Ghosh v. State of W.B. (1970) 1 SCC 98; Nagendra Nath Mondal v. State of W.B. (1972) 1 SCC 498; Babul Mitra v. State of W.B. (1973) 1 SCC 393 and Milan Banik v. State of W.B.(1974) 4 SCC 540.)
11. In order to clip the wings of a person involved in a case rendering himself liable for criminal prosecution, the detaining authority must not only satisfy himself but also establish that the act of such person had affected both the public order and the security of the State. There are no materials whatsoever placed before the detaining authority for such satisfaction except the speech delivered by the detenu. On this ground as well, it must be held that the detaining authority had merely accepted the recommendation of the sponsoring authority without there being any supportive materials rendering the detention order illegal on the ground of non-application of mind.
12. Coming to the next contention namely, the non-supply of the written statement would vitiate the detention order. We are not inclined to accept the submission of the learned counsel for the petitioner as the said document was neither placed before the detaining authority nor was it relied upon and not even referred to in the grounds of detention. The only document relied upon in the grounds of detention is the bail order. Nevertheless, the detention order would be vitiated in the event the detaining authority did not apply his mind to the contents of the bail order. Admittedly, the detenu had been granted bail by the learned Judicial Magistrate primarily on two grounds viz., that except the copy of the FIR and the complaint, no document was produced before the Magistrate when the bail application was taken up for hearing on 14.3.2009 and there was no prima facie case made out by the prosecution. Of course, it is not compulsory for the investigating officer to produce the records before the Court at the time when the bail application is considered in all cases except it is required by the Court. But for consideration of the challenge to the detention order, the observation of the Court is relevant. When the material papers were already available with the sponsoring authority viz., the investigating officer, and without producing the same before the Court on 14.3.2009 and in fact had made a statement before the Court that all the material papers have been sent to Chennai, the contention of the sponsoring authority that the material papers were already handed over to the detaining authority throws some suspicion. The non production of these materials before the Court is one of the grounds for grant of bail. Secondly the learned Magistrate has also entertained certain doubt about the complaint. Though in preventive detention matters this Court is not competent to go into the veracity of the complaint, but certainly it would not be outside the scope of its jurisdiction to find out whether the observations which are in favour of the detenu were considered before the detention order was passed or not. There is a possibility that in the event the reasons for grant of bail were considered, the detaining authority could have refrained from passing such an order of detention. There is no indication in the detention order as to the consideration of the contents of the bail application, except making a reference and that too with a further observation that the detenu had not produced the sureties unsupported by materials. The non consideration of the contents of the bail order would also vitiate the order of detention. In this context, we may also refer to the judgment of the Apex Court in Union of India v. Manoharlal Narang, (1987) 2 SCC 241, where it has been held as follows: "Non consideration of interim order which constituted a relevant and important material was fatal to the subsequent detention order on the ground of non-application of mind. If the detaining authority had considered that order, one cannot state with definiteness which way his subjective satisfaction would have reacted and it could have persuaded the detaining authority to desist from passing the order of detention."
13. It has been settled in law that if the detention order is questioned on more than one grounds and if the Court accepts one ground of challenge for quashing the detention order irrespective of the failure to satisfy the other grounds, the detention order could be quashed. In this context, we may refer to the judgment of the Apex Court in Pushkar Mukherjee v. State of West Bengal (1969) 1 SCC 10.
14. As we have found the above two grounds are acceptable and on those grounds the detention order is liable to be quashed, we are not inclined to go into the other rival contentions.
15. For the above two reasons, we are of the considered view that the detention order suffers from infirmity, particularly as to the non-application of mind on the part of the detaining authority. Accordingly, the habeas corpus petition is allowed, the impugned order of detention dated 14.3.2009 passed by the District Magistrate and District Collector, Tirupur in Cr.M.P.No.01/NSA/2009 is quashed and the detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case.
1. The Secretary to Government
of Tamil Nadu
Public (Law and Order-F) Department
Chennai 600 009
2. The District Magistrate
and District Collector
Tirupur District, Cotton Market Buildings
Palladam Road, Tirupur, Tirupur District
3. The Public Prosecutor