Madras High Court
A. Vellanai Pandian vs Collector And District Magistrate Of ... on 12 August, 1983
Author: S. Ratnavel Pandian
Bench: S. Ratnavel Pandian
JUDGMENT Ratnavel Pandian, J.
1. This petition, filed by one Vellanai Pandian is for the issue of a writ of habeas corpus for quashing the order of detention dated 10-12-1982 passed by the first respondent against the petitioners cousin P. Gandhi the detenu herein, under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act XIV of 1982) (hereinafter referred to as the Act) rear with the orders issued by the Government in G.O.Ms. 25. Prohibition and Excise Department dated 18-1-1982, as amended by sub-section (2) of S. 8 of the Act, and confirmed by the second respondent as per order in G.O.Ms. 58 dated 27-1-1983 by which it was directed that the detenu be kept in detention for a period of twelve months from the date of his detention.
2. The ground on which the impugned order is based is that the Inspector of Police, Prohibition Enforcement Wing, Tirunelveli, with his party, while conducting a prohibition raid at Ullar, on 24-10-1982 at about 11 a.m., found the detenu coming near a hillock known as Karuvattupparai carrying a plastic can which on a check was found to contain 15 litres of illicit distilled arrack, that the can was seized and the detenu was arrested and that a case in P.E.W. Crime No. 3130/82 under S. 4(1)(a) of the Tamil Nadu Prohibition Act was registered. Two samples of 500 ml. of arrack were taken. One of the sample bottles sent to the Assistant Director and Assistant Chemical Examiner. Regional Forensic Laboratory, Tirunelveli, on analysis was detected to contain atropine, a toxic element of datura. That apart, the Inspector examined two persons, viz., (1) one Panneer and (2) one S. Gurusami Pandian, both of Royagiri, who stated that they purchased spurious arrack from the detenu on 15-10-1982 and 20-10-1982 respectively and that both of them, after consuming the said arrack, experienced irritation in their throats, vomitting and purging, followed by blurring of vision, and that they had their treatment locally and they could not attend to their normal work. The Inspector also examined the Tutor in Forensic Medicine of the Tirunelveli Medical College Hospital who has opined that the consumption of arrack mixed with datura could affect the human system and that if one consumes large quantities, it is likely to cause death in the ordinary course of nature if no treatment is available. The first respondent being satisfied, on the basis of the above material, that the detenu was engaged in selling illicit liquor which is likely to cause widespread danger to life and public health, passed the impugned order of detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The copy of the order of detention was served on the detenu on 13-12-1982 along with the grounds of detention and other materials. The Government, on receipt of the detailed report of the first respondent dated 13-12-1982 as required under Section 3(3) of the Act, along with the grounds of detention and other materials, approved the order of detention on 20-12-1982 and a copy of the same was served on the detenu on 23-12-1982 under acknowledgment. Meanwhile, the detenu made his representation dated 16-12-1982, which was received by the Government on 23-12-1982. The case was referred to the Advisory Board on 22-12-1982. A copy of the representation of the detenu was forwarded to the Advisory Board on 23-12-1982 itself, on which date the Government received it. The parawise remarks of the first respondent on the representation of the detenu were called for on 23-12-1982 itself. On 5-1-1983 the first respondent sent his parawise remarks to the second respondent which thereafter rejected the representation of the detenu on 17-1-1983. The Advisory Board considered the case of the detenu on 18-1-1983 and after considering all the materials and the written and oral representations of the detenu, was unanimously of the opinion that there was sufficient cause for the detention of the detenu. The Government, after carefully considering the opinion of the Advisory Board and also independently considering all the materials, arrived at the conclusion that the detention order deserved to be confirmed and accordingly confirmed the order and directed the detenu to be detained for a period of twelve months from the date of his detention, by order dated 27-1-1983, which order was served on the detenu on 31-1-1983 under acknowledgment.
3. Among the various grounds raised in the writ petition, the main submissions made in challenging the validity of the order are -
(1) that the detaining authority ought not to have taken into consideration the statements purported to have been made by Panneer and Gurusami Pandian to the Inspector of Police, since those statements are inadmissible in any legal proceedings due to the bar under S. 162 of the Code of Criminal Procedure :
(2) that the abovesaid Panneer and Gurusami Pandian, whose alleged statements have been taken into consideration by the detaining authority in drawing the requisite satisfaction for passing the impugned order, have sent sworn statements dated 24-12-1982 to the first respondent, stating that they have not been examined by the police, nor have they given any such statements complaining that they experienced irritation or vomitting etc. due to the consumption of arrack purchased from the detenu, and these statements of repudiation by these two persons have not been forwarded to the Government, nor has the Government been apprised of such statements and this commission on the part of the first respondent is in violation of the Act;
(3) that the Government has approved the order of detention on 20-12-1982, as required under S. 3(3) of the Act, without taking into consideration the representation made by the detenu and as such the approval of the impugned order is clearly in violation of the provisions of Article 22(5) of the Constitution; and (4) that the fact that the detenu is a dealer licensed to run an arrack shop at Dhesiampatti village, has not been brought to the notice of the detaining authority, and had that fact not been withheld probably the detaining authority might not have passed the impugned order.
4. In answering the first contention, the learned Public Prosecutor would submit that there is no bar for the detaining authority to take into consideration the statements of Panneer and Gurusami Pandian in a proceeding under the provisions of the Act and it cannot be said that those statements are inadmissible in this proceeding. In support of his contention, reliance was placed on the decision of the Supreme Court in Khatri v. State of Bihar wherein a similar question arose as to whether the consideration of the statements recorded by a police officer and produced in a proceeding in a writ petition, is hit by S. 162, Cr.P.C., and their Lordships have ruled thus :-
"But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example, in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution, and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Evidence Act ......... It is obvious, therefore, that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32, provided it is relevant under the Indian Evidence Act and S. 162 cannot be urged as a bar against its production or use." Thus, the learned Public Prosecutor submits that in view of the above decision of the Supreme Court, the order of detention passed by the first respondent, drawing his subjective satisfaction on the materials set out in the grounds of detention inclusive of the statements of these two persons, cannot be challenged on the ground that they are hit by S. 162. Cr.P.C. and are as such inadmissible. We see much force in this submission of the learned Public Prosecutor and reject the first contention of the learned counsel for the writ petitioner, as devoid of any merit.
5. The second contention of the learned counsel is that the order of detention, as confirmed by the Government, is vitiated since the detaining authority, to whom Panneer and Guruswami Pandian have sent their statements made on oath, dated 24-12-1982, totally repudiating their alleged statements recorded by the Inspector of Police and which statements formed part of the material placed before the detaining authority for forming his subjective satisfaction, has withheld those sworn statements and failed to forward them to the Government and he has also not apprised the Government of the receipt of the said sworn statements of repudiation, and he has thus prevented the Government, firstly, from placing the subsequent materials that came to the knowledge of the detaining authority, which had a sufficient bearing on the matter, before the Advisory Board under S. 10 of the Act and secondly, from taking into consideration the said materials while confirming the order of detention. According to the learned counsel, had those two statements of repudiation been brought to the notice of the Government, the Government would have sent the same to the Advisory Board which in turn might have given a different opinion, and consequently, the order of detention might have been revoked by the Government. Even otherwise also, the Government perhaps might not have confirmed the order of detention in view of the subsequent information. In support of this contention. Mr. K. A. Panchapagesan has relied on the decision of the Supreme Court in Raverdy Marc Germain Jules v. State of Maharashtra (1982 SCC (Cri) 638) : (1983 Cri LJ 449).
6. Strongly resisting the above submission made on behalf of the writ petitioner, the learned Public Prosecutor would urge that as these two sworn statements of Panneer and Guruswami Pandian dated 24-12-82 were not available before the detaining authority at the time of passing the detention order, which was based only on the materials placed before him as set out in the grounds of detention, the non-forwarding of these two statements of repudiation to the Government or to the Advisory Board cannot be said to be an infraction of the constitutional provisions laid down under Article 22(5) or any of the provisions of the Act. According to him, either under the constitutional provisions or under the provisions of the Act, the detaining authority is not obliged to forward the documents received by him subsequent to the passing of the order of detention and the High Court, under Article 226 of the Constitution, has only to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority.
7. With regard to the grievance made by the petitioner in paragraph 12 of his affidavit about the non-forwarding of the sworn statements of the two persons to the Government, the first respondent has given his reply in para 11 of his counter-affidavit, which reads as follows :
"As regards the contentions in paragraph 12 of the affidavit, it is submitted that Thiru Panneer and Guruswamy Pandian have sent only petitions on 24-12-1982 and they are not in the proper affidavit form. It is pertinent to submit that two petitions have been drafted identically and both versions are similar to each other and they have been signed on 24-12-82. Hence it is submitted that these statements have been subsequently concocted in order to help the detenu and as such no reliance can be placed on these two statements dated 24-12-1982."
From the above averments it is clear that it is not the case of the detaining authority that Panneer and Guruswami Pandian mentioned in the grounds of detention are not authors of those two statements of repudiation, denying their examination by the Inspector of Police; but on the other hand, the first respondent would admit that those two persons have sent these two sworn statements dated 24-12-1982. What the first respondent would state is that no reliance could be placed on these two statements, for the following reasons, viz., (1) that those two statements are identical, and (2) that they have been subsequently concocted in order to help the detenu. The first respondent would not say that they made any inquiry or caused any inquiry to be made to test the truth or otherwise of the versions contained in the two sworn statements; but the above two reasons given for his conclusion that no reliance can be placed on those two statements, seem to be presumptive. In fact, the learned Public Prosecutor would state that before sending the parawise remarks, no independent inquiry has been made with regard to the genuineness or otherwise of these two sworn statements, nor is there any endorsement by the first respondent in the concerned file mentioning his view about these two documents, and also would admit that an inquiry was made about the same only in April, 1983. As we have pointed out supra, the Government called for the para-wise remarks of the first respondent on the representation made by the detenu even on 23-12-1982 and the first respondent sent his para-wise remarks on 5-1-1983. The Advisory Board gave its opinion only on 18-1-1983, i.e., thirteen days after the para-wise remarks were forwarded to the Government by the first respondent. Therefore, had the first respondent apprised the fact of the receipt of these two sworn statements to the Government or sent them along with his para-wise remarks, there was an opportunity for the Government to place the said information before the Advisory Board. No doubt, as pointed out by the Supreme Court in Puranlal Lakhanlal v. Union of India :-
"The reference to the Board (Advisory Board) is only a safeguard against executive vagaries and highhanded action and is a machinery devised by the Constitution to review the decision of the Executive on the basis of a representation made by the detenu, the grounds of detention and, where the order is by an officer, the report of such an officer. It is not a limitation on the Executive's discretion as to the discharge of its duties connected with preventive detention; it is a safeguard against misuse of power."
In this connection, S. 11 of the Act is relevant. It reads thus :
"11. Procedure of Advisory Boards - (1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the State Government or from any person called for the purpose through the State Government or from the person concerned, and if, in any particular case, the Advisory Board considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the State Government, within seven weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.
(3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
(4) and (5) ..............."
From a plain reading of the above section, it is unambiguously clear that the Advisory Board, before submitting its report, can call for such further information necessary in its opinion either from the State Government or from any person called for that purpose. Therefore, in the present case if the Advisory Board had been apprised of the existence of these two sworn statements, it might have called for them and considered them before submitting its report to the Government, and in case those statements had been forwarded to it, it would have considered them while giving its opinion as to whether there was sufficient cause for detention or not. However, the detaining authority is not justified in inventing reasons for the failure to forward the statements. In our opinion, he ought to have forwarded them, if needed, with a report registering his views on these two statements. In any event, the first respondent is not competent to state that these two sworn statements would not have weighed either with the Advisory Board or with the Government, even if they were forwarded by him. It is only for the Advisory Board or the Government to consider the subsequent material having a bearing on the matter in issue and accept or reject the same. It cannot be gainsaid that these two sworn statements have a bearing on the matter and hence the detaining authority should have forwarded them to the Government so that the Government may be able to effectively discharge its functions, as overseeing superior authority, while determining whether or not to grant approval or confirmation to the order of detention made by the detaining authority though these two statements were not in existence and did not go into the formation of the subjective satisfaction of the detaining authority at the time of passing the said order. We are unable to appreciate the contention of the learned Public Prosecutor that these two sworn statements subsequently sent to the detaining authority are statements of third parties and as such the detaining authority was not constitutionally or under the provisions of the Act obliged to communicate them to the Government. The detaining authority formed his subjective satisfaction only on the basis of the materials inclusive of the earlier alleged statements of these two persons, made to the Inspector of Police, and it is only those two persons mentioned in the grounds of detention who have sent these two sworn statements denying the earlier statements, and therefore, it cannot be said that these two sworn statements are statements of third parties having no bearing on this matter. If the argument made on behalf of the respondents is to be accepted, then, calling for the para-wise remarks by the Government will become otiose. The withholding of the two sworn statements by the detaining authority and also the failure on his part to apprise the Government about the receipt of the said statements of repudiation, certainly have deterred the Government from discharging its statutory function of placing all the materials before the Advisory Board and also deterred the Advisory Board from "calling for such further information as it may deem necessary either from the Government or from any person" before submitting its report as envisaged under S. 11 of the Act. In Raverdy Marc Germain Jules v. State of Maharashtra (1982 SCC (Cri) 638) : (1983 Cri LJ 449), cited by Mr. K. A. Panchapagesan. the question arose whether the detention order would be vitiated on account of the failure to forward to the Advisory Board the detenu's letter retracting from his earlier confessional statement. In that case, the detenu, who had given a confessional statement earlier, had retracted from it subsequently by forwarding a letter to that effect. That letter retracting from the confessional statement was not considered by the detaining authority, because that letter had reached the said authority only after the passing of the order of detention. That retraction letter was not forwarded by the detaining authority to the Advisory Board. A submission was made that the non-forwarding of the letter to the Advisory Board had vitiated the detention order. It was urged on behalf of the State that all the documents which were before the detaining authority were placed before the Advisory Board, that the Advisory Board examined the question of subjective satisfaction of the detaining authority on the material which the detaining authority had before it and that as the retraction letter was not before the detaining authority, it was immaterial that the Advisory Board did not take the same into consideration. But, the Supreme Court did not approve of that contention and observed thus :-
"This stand may not be very satisfactory and may necessitate our deeper examination ........."
But, having regard to the fact that the detenu in that case who was highly qualified and highly placed was himself before the Advisory Board, the Supreme Court observed that it was unthinkable that he would not have informed the Advisory Board that he had retracted from his confession, and held that nothing turned on the letter retracting from the confession, being not placed before the Advisory Board. From the above observation of the Supreme Court, it is clear that the Supreme Court, by necessary implication has held that the detaining authority is obliged to forward all the subsequent material having a bearing on the matter to the Government and to the Advisory Board. This observation could be applied on all fours to the facts of the present case, since in the instant case the earlier statements of these two persons themselves along with other material formed the basis for the detaining authority forming the requisite satisfaction in passing the impugned order of detention and as such the forwarding of the two sworn statements has become material. Hence, in the light of the above observation, we hold that the submission of the learned Public Prosecutor that the detaining authority was not obliged to forward these two sworn statements cannot be countenanced.
8. The learned Public Prosecutor made a futile argument that in the present case the detenu ought to have informed or represented to the Board about these two statements of repudiation, at the time when he appeared before the Board and in that case the Board itself could have called for these two documents and as the detenu has failed to do so, the writ petitioner cannot make the present complaint. It is to be noted that there is nothing to show that the detenu has got knowledge about the two sworn statements having been sent by the two persons to the first respondent at the time when he appeared before the Advisory Board. Therefore, the question of the detenu not reporting about the existence of these two sworn statements to the Advisory Board does not at all arise. It is only for the first time in the affidavit dated 20-3-1983 filed in support of the petition, the petitioner has made mention of these two sworn statements having been forwarded to the detaining authority.
9. If the submission of the learned Public Prosecutor that the detaining authority is not at all obliged to forward any statement or information that came to light subsequent to the passing of the detention order is to be accepted, then, even in a case where an order of detention was passed based on certain materials which are subsequent to the passing of the order, found to be untrue due to the receipt of some information or documents, the detaining authority would not at all be obliged to communicate the said information or documents having a bearing on the matter in issue to the Government. In other words the action of the detaining authority in withholding of subsequent information tending to falsify or belie the earlier materials on which the earlier detention order was based, would stand unchallenged. In that case, there is the danger of the detaining authority in every case withholding all materials even if they have got a vital bearing on the matter in issue in order to see that his order of detention is sustained. This would definitely lead to a situation where the personal right and liberty of a person would be at stake at the hands of the executive and the safeguard provided by the Constitution for the protection thereof would be impared. S. 14 of the Act reads that without prejudice to the provisions of S. 15 of the Tamil Nadu General Clauses Act, 1891 (Tamil Nadu Act 1 of 1891), a detention order may at any time be revoked or modified by the State Government notwithstanding that the order has been made by an officer mentioned in sub-section (2) of Section 3. The revocation or modification of an order to be passed by the Government would necessarily depend on various factors such as the order being tainted by some illegality or the receipt of any fresh material relating to the order of detention subsequently obtained. Therefore, if the detaining authority withholds any subsequent material which the said authority could have forwarded to the Government before the passing of the order of confirmation by the Government or even thereafter, does not the detaining authority, by withholding such material, prevent the Government from effectively exercising its statutory functions of revoking or modifying the order of detention and thereby defeat the very object of Sections 11 and 14 of the Act ?
10. In view of the above discussions, we are of the view that the submissions made on behalf of the respondents are not acceptable and accordingly hold that the failure on the part of the detaining authority in this case to forward the two subsequent sworn statements of Panneer and Guruswami Pandian repudiating their alleged statements said to have been given before the investigating officer earlier to the Government and to the Advisory Board, has vitiated the detention.
11. In view of this finding, we think it is not necessary for us to consider the other two contentions raised by the learned counsel, for the disposal of this writ petition.
12. In the result, this writ petition is allowed, the order of detention is quashed and the detenu is directed to be set at liberty forthwith.
13. Petition allowed.