Madras High Court
Parapatty Suresh @ Sureshkumar vs The Commissioner Of Police on 12 October, 2012
Bench: K.N.Basha, N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12-10-2012
CORAM:
THE HON'BLE MR.JUSTICE K.N.BASHA
and
THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR
H.C.P.Nos.380, 617 and 1406 of 2012
& Connected Miscellaneous Petitions
Parapatty Suresh @ Sureshkumar ... Petitioner in H.C.P.No.380/2012
Amutha Gowsiga Boopathy ... Petitioner in H.C.P.No.617/2012
Leela ... Petitioner in H.C.P.No.1406/2012
Vs.
1. The Commissioner of Police,
Salem City Police, Salem.
2. Government of Tamil Nadu,
Rep. by its Secretary,
Home, Prohibition and Excise Department,
Secretariat, Chennai - 600 009.
3. The Superintendent,
Central Prison, Salem. ... Respondents in all the petitions
* * *
Prayer in H.C.P.No.380/2012 : Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus calling for the records in Detention Order C.M.P.No.18/SLUM GRABBER/SALEM CITY/2012 dated 28.01.2012 on the file of the first respondent and quash the same and direct the respondents herein to produce the body of the petitioner now confined in Central Prison, Salem, before this Hon'ble Court and set him at liberty.
Prayer in H.C.P.No.617/2012 : Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus calling for the records in Detention Order C.M.P.No.21/SLUM GRABBER/SALEM CITY/2012 dated 28.02.2012 on the file of the first respondent and quash the same and direct the respondents herein to produce the body of the petitioner's husband Thiru.Gowsiga Boopathy, M/A 59 years, now confined in Central Prison, Salem, before this Hon'ble Court and set him at liberty.
Prayer in H.C.P.No.1406/2012 : Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus calling for the records in Detention Order C.M.P.No.33/SLUM GRABBER/SALEM CITY/2012 dated 18.06.2012 on the file of the first respondent and quash the same and direct the respondents herein to produce the body of the petitioner's husband Thiru.Veerapandi S.Arumugham, M/A 73 Years, now confined in Central Prison, Vellore, before this Hon'ble Court and set him at liberty.
* * *
For Petitioners in .. Mr.N.Natarajan, Senior Counsel and
H.C.P.Nos.380 & 617/2012 Mr.R.Shanmugasundaram,
Senior Counsel
for M/s.S.Sivasubramani
A.Gopinath
For Petitioners in .. Mr.N.Natarajan, Senior Counsel and
H.C.P.No.1406/2012 Mr.R.Shanmugasundaram,
Senior Counsel
for M/s.A.Saravanan
A.Gopinath
For Respondents in ... Mr.S.Shunmugavelayutham
H.C.P.Nos.380 & 617/2012 Public Prosecutor
assisted by Mr.M.Maharaja,
Additional Public Prosecutor
For Respondents in H.C.P. ... Mr.Ranjit Kumar, Senior Counsel
No.1406/2012 and Mr.S.Shunmugavelayutham,
Public Prosecutor assisted by
Mr.Mohamed Riyaz,
Govt. Advocate (Criminal Side)
C O M M O N O R D E R
K.N.BASHA, J. & N.PAUL VASANTHAKUMAR, J.
The above three habeas corpus petitions have been posted before this Specially constituted Bench by order of the Hon'ble Chief Justice in the office note dated 17.9.2012.
2. The petitioner Parapatty Suresh @ Sureshkumar in H.C.P.No.380/2012, an Advocate by profession, who is the detenu; the petitioner in H.C.P.No.617/2012, who is the wife of the detenu, namely, Gowsiga Boopathy; and the petitioner in H.C.P.No.1406/2012, who is the wife of the detenu, Veerapandi S.Arumugam, have come forward with these petitions challenging the detention orders dated 28.01.2012, 28.02.2012 and 18.06.2012 respectively slapped on the detenus branding them as "Slum Grabbers", as contemplated under Section 2(h) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Act 14 of 1982) (hereinafter referred to as "the Act").
3. The detenu in H.C.P.No.617 of 2012 is the political Personal Assistant to the former Minister Veerapandi S.Arumugham, who is the detenu in H.C.P.No.1406 of 2012. The detenu in H.C.P.No.380 of 2012 is brother's son of the detenu in H.C.P.No.617 of 2012. In view of the relationship among the detenus and one of the adverse case registered against them in Crime No.32 of 2011 on the file of Central Crime Branch, Salem, is common, all these petitions are taken together for final hearing and disposed of by this common order.
4. The Detaining Authority in all these cases is one and the same, namely, Commissioner of Police, Salem City, Salem, who has been impleaded as first respondent in all the three petitions. The detention orders have been passed on the basis of four adverse cases in respect of H.C.P.Nos.380 and 617 of 2012 and five adverse cases in respect of H.C.P.No.1406 of 2012 and also placing reliance on one ground case each. One of the adverse case in Crime No.32 of 2011 on the file of the Inspector of Police, Central Crime Branch, Salem, is common in respect of all the three detenus. The main basis for passing all the detention orders relates to land grabbing in respect of a place called "Angammal Colony" at Salem City and other places. For convenient understanding, it is relevant to mention the particulars about the adverse cases and ground cases relating to all the three detenus.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Sl H.C.P.No. Date of Crime No. Rank of Date Offences No & detention In the of Name of the order Adverse detenu occurrence detenu case/Ground in Case Crime No. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1 380/ 2012 Adverse Case A.5 13.8.2010 Sec.120(B), 449, Parapatty ------------ 302, 302 Suresh 1.Cr.No. r/w.120(B), 109 @ 222/2010 r/w 120(B) IPC.
Sureshkumar 28.1.2012 Mallur, P.S. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 2.Cr.No. A.2 20.1.2008 Sec.147, 148, 32/2011 to 447, 109, 386, CCB, 15.7.2011 467, 506(ii) IPC Salem & Sec.3(1) of TNPP(D&L)Act, 1994. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3.Cr.No. A.3 28.3.2007 Sec.147, 447, 35/2011 506(i) & 386 IPC CCB, Salem ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 4.Cr.No. A.4 Aug,2007 Sec.147, 148, 41/2011 to 447, 386, 387, CCB, 12.1.2009 307, 506(ii) IPC Salem & Sec.3(1) of TNPP(D&L)Act, 1994. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Ground Case 14.9.2009 Sec.120B r/w 147, ----------- to 148, 341, 323, Cr.No. 2.11.2011 307, 465, 468, 42/2011 471, 406, 409, CCB, 420 IPC Sec.25 Salem of Arms Act, Sec.13(1)(c) & (d) of P.C.Act, 1988.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 2 617/2012 Adverse Case A.3 20.1.2008 Sec.147, 148, Gowsiga ------------ to 447, 109, 386, Boopathy 28.2.2012 1.Cr.No. 15.7.2011 467, 506(ii) IPC 32/2011 & Sec.3(1) of CCB, Salem TNPP(D&L)Act, 1994.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 2.Cr.No. A.2 28.3.2007 Sec.147, 447, 35/2011 506(i) & 386 IPC CCB, Salem ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3.Cr.No. A.4 14.9.2009 Sec.120B r/w 147, 42/2011 to 148, 341, 323, CCB, Salem 2.11.2011 307, 465, 468, 471, 406, 409, 420 IPC Sec.25 of Arms Act, Sec.13(1)(c) & (d) of P.C.Act, 1988. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 4.Cr.No. A.1 9.10.2006 Sec. 465, 468, 225/2011 r/w 471, & 420 CCB, IPC. Team II, Egmore, Chennai ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Ground Case A.3 Aug,2007 Sec.147, 148, ----------- to 447, 386, 387, Cr.No. 12.1.2009 307, 506(ii) IPC 41/2011 & Sec.3(1) of CCB, Salem TNPP(D&L)Act, 1994.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3 1406/2012 Adverse Case A.1 20.1.2008 Sec.147, 148, Veerapandi ------------ to 447, 109, 386, S.Arumugham 18.6.2012 1. Cr.No. 15.7.2011 467, 506(ii) IPC 32/2011 & Sec.3(1) of CCB, Salem TNPP(D&L)Act, 1994.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 2.Cr.No. A.1 10.9.2007 Sec.147, 148, 34/2011 to 447, 386, 467, CCB, Salem till date 294(B), 506(i) & 109 IPC & Sec.3(1) of TNPP(D&L)Act, 1994. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3.Cr.No. A.3 28.3.2007 Sec.147, 447, 35/2011 506(i) & 386 IPC CCB, Salem ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 4.Cr.No. A.1 Aug 2007 Sec.147, 148, 41/2011 to 447, 386, 387, CCB, Salem 12.1.2009 307, 506(ii) IPC & Sec.3(1) of TNPP(D&L)Act, 1994. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 5.Cr.No. 14.9.2009 Sec.120B r/w 147, 42/2011 to 148, 341, 323, CCB, Salem 2.10.2011 307, 465, 468, 471, 406, 409, 420 IPC Sec.25 of Arms Act, Sec.13(1)(c) & (d) of P.C.Act, 1988. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Ground Case A.1 3.6.2012 Sec.120B r/w 147, ----------- 148, 447, 448, Cr.No. 341, 294(b), 395, 711/2012 307, 436, 506 Pallapatty (ii), 109 IPC & P.S. Sec.3(1) of Salem TNPP(D&L)Act, 1994.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
5. In all the above cases, the detenus have been implicated on the main allegation of land grabbing, except in one adverse case in Cr.No.222/2010 on the file of Mallur P.S., in respect of the petitioner in H.C.P.No.380 of 2012, wherein the petitioner/detenu Parapatty Suresh @ Suresh Kumar has been implicated for the offence of murder under Section 302 IPC, apart from other offences.
6. Mr.N.Natarajan and Mr.R.Shanmugasundaram, learned Senior Counsels appearing on behalf of the detenus in all the three petitions, assailing the detention orders, put forward the following contentions :
(1) The detention orders are liable to be set aside on the ground of violation of the provision under Section 8(1) of the Act, as the detention orders in respect of the detenus in H.C.P.Nos.380 and 617 of 2012 have been passed on 28.01.2012 and 28.02.2012 and the booklet containing the documents was served on the detenu in H.C.P.No.380 of 2012 on 06.02.2012, and to the detenu in H.C.P.No.617 of 2012 on 08.03.2012, and as such, the grounds of detention as well as the booklet containing the documents were not served within a period of five days as contemplated under Section 8(1) of the Act and as a result, the detenus were not in a position to give effective representation before the Detaining Authority within a period of twelve days before passing the approval order by the State Government under Section 3(3) of the Act, and as such, the detention orders and the approval orders passed by the Government, are vitiated. In order to substantiate the said contention, learned Senior Counsels placed reliance on the decisions of this Court in Mageswari V. Govt. of Tamil Nadu reported in (2011) 3 MLJ (CRL) 391; Govindammal V. The Commissioner of Police reported in 2011 (1) MWN (Cr.) 560, K.R.Nath, v. Secretary to Government reported in (2012) 3 MLJ (Crl.) 577; and Vinod @ Poothar V. State of T.N. reported in (2012) 3 MLJ (Crl.) 599.
(2) The Sponsoring Authority has failed to place the vital documents before the Detaining Authority and as such, the subjective satisfaction arrived at by the Detaining Authority is vitiated, rendering the detention order illegal.
It is pointed out that in respect of the detenu in H.C.P.No.1406 of 2012, the remand order passed by the learned Judicial Magistrate No.IV, Salem, in connection with Crime No.35 of 2011; Company Law Board Order dated 4.4.2012 in C.P.No.36 of 2008; Order in W.P.No.15156 of 2008 dated 27.6.2008; order passed by this Court in W.P.No.18439 of 2008 dated 10.12.2008; Plaint in O.S.No.13 of 2012 on the file of Vacation Court, Salem, filed by one Raj Kumar Tiwari against the complainant Ganesan, were not placed before the Detaining Authority. The learned Senior Counsels also listed the documents in respect of HCP Nos.380 and 617 of 2012, which were not placed before the Detaining Authority. According to the learned Senior Counsels, if the said documents were placed before the Detaining Authority, there is likelihood of taking a different view by the Detaining Authority and as such, the subjective satisfaction recorded by the Detaining Authority is not based on relevant facts.
(3) Non-furnishing of material documents referred to/relied on by the Detaining Authority along with grounds of detention vitiates the detention order as the detenus were prevented from making effective representation and the same amounts to violation of Article 22(5) of the Constitution of India. In H.C.P.No.380 of 2012, the following documents relied on were not furnished to the detenu:
(i) Injunction order obtained by Sivaguru against his father.
(ii) Confession statements of Sivaguru and Gokulnath
(iii) Order passed in W.P.No.15156 of 2008.
(iv) Executive Order passed by R.D.O., Salem, in Na.Ka.No.4693/A-2/2008 dated 04.08.2008.
(v) Suit papers, pleadings and documents in O.S.No.1217 of 2007 before the Principal District Munsif, Salem.
The said documents have been supplied only after making representation on 17.02.2012 in H.C.P.No.380 of 2012.
In H.C.P.No.617 of 2012 the following relied on documents were not furnished:
(i) Copy of the original order passed by this Hon'ble Court in Crl.M.P.1 of 2011 in Crl.O.P.17427 of 2011 dated 13.8.2011
(ii) Copy of the original order passed by this Hon'ble Court in Crl.O.P.17427 of 2011 dated 4.8.2011
(iii) Copy of the original order passed by this Court in Crl.O.P.20007/2011 dated 13.8.2011
(iv) Copy of the original order passed by this Court in Crl.M.P.No.1 of 2011 in Crl.O.P.No.25679 of 2011 dated 25.11.2011
(v) Copy of the original order passed by this Court in Crl,O.P.No.25679 of 2011 dated 1.11.2011
(vi) Remand order in connection with Cr.No.42 of 2011
(vii) Sale deed dated 26.8.2006 executed by Gowsiga Boopathy in favour of his wife G.Amutha
(viii) Sale deed dated 9.10.2006 executed by Gowsiga Boopathy
(ix) Sale deed dated 30.10.2007 executed by Gowsiga Boopathy
(x) Remand order in connection with Cr.No.225 of 2011
(xi) Bail order dated 20.1.2012 passed by the learned Judicial Magistrate No.I, Poonamallee inconnection with Cr.No.225 of 2011
(xii) Order passed by this Court in Crl.O.P.No.13051 of 2008
(xiii) Order passed by this Court in Crl.O.P.No.25964 of 2008
(xiv) Copy of the original order passed by this Court in Crl.O.P.No.21766 of 2011 dated 16.9.2011 The said documents were furnished to the detenu only after a delay of six days.
In H.C.P.No1406 of 2012, the following relied on documents were not furnished :
(i) Remand order passed by the learned Judicial Magistrate No.IV, Salem, in connection with Cr.No.35 of 2011.
(ii) Company Appeal dated 4.6.2012 filed by Ravichandran before this Court.
(iii) Order passed by this Court in Crl.O.P.No.13051 of 2008
(iv) Order passed by this Court in Crl.O.P.No.25964 of 2008
(v) Sale deed in favour of D.Kamaraj registered as document No.3769 of 2009 at SRO, Veerapandi dated 2.11.2009
(vi) Indication regarding remand period extension till 29.6.2012 in connection with Cr.No.711/2012.
The said documents were furnished only after a delay of ten days.
In support of the said contention, the learned Senior Counsels placed reliance on the following decisions :
(a)Kirit Kumar Chaman Lal Kundaliya V. Union of India & Others reported in 1981 SCC (Cri.) 471.
(b)Ramchandra A.Kamath V. Union of India and others reported in 1980 (2) SCC 270, and
(c)Virendra Singh V. State of Maharashtra reported in 1981 SCC (Crl) 874.
(4) The detention orders in all the three cases are vitiated as the occurrences in respect of those cases are alleged to have taken place in 2006, 2007, 2008, 2009 and 2011 and there is no nexus and proximity between the date of occurrence and the order of detention. In support of such contention, learned Senior Counsels placed reliance on the following decisions :
(a)Harnek Singh V. State of Punjab & Others reported in 1982 (1) SCC 116 ;
(b)Kamalakar Prasak Chaturvedi V. State of M.P. & another reported in 1983 (4) SCC 443 ; and
(c)Davinder Singh V. State of J & K reported in 1998 CRI.L.J. 3179 ;
(5) The offences alleged to have been committed by the detenus in all the three petitions cannot be said to be prejudicial to the public order and the detenus could have very well been dealt with under the ordinary criminal law, and the failure of the Detaining Authority in ignoring this important factor vitiates the detention orders.
(6) The Detaining Authority has failed and overlooked to consider that there is no imminent possibility or compelling necessity for passing the order of detention in respect of the detenu in H.C.P.No.1406 of 2012 and without any cogent material, mechanically arrived at the subjective satisfaction by placing reliance on the so-called similar cases, in which, the detenu was granted bail ignoring the fact that in the said cases the detenu has been implicated for lesser offences, whereas, in respect of ground case, the detenu has been implicated for the offence under Section 395 IPC, apart from other offences. In support of the said contention learned Senior Counsels for the petitioners relied on the decision of the Hon'ble Apex Court in Rekha V. State of Tamil Nadu reported in 2011 (5) SCC 244.
(7) The Detaining Authority is not well-versed in Tamil, who has allegedly gone through the voluminous booklet containing 560 pages in H.C.P.No.1406 of 2012 and also in other petitions before passing the detention orders and as such, the detention orders are passed on non-application of mind and in an arbitrary manner.
7. Per contra, Mr.Ranjit Kumar, learned Senior Counsel appearing for the respondents in H.C.P.No.1406 of 2012 made the following submissions :
(1) The impugned detention order is not liable to be quashed on the 'stale' ground as the occurrences had taken place from the year 2007 to 2011 and the same continues even on 03.06.2012, for which, ground case was registered for serious offences. In respect of all the adverse cases, complaints have been given then and there, and as no action was taken by the police, the victims preferred writ petition and Criminal Original Petition before the High Court and even after the direction given by the High Court, no action was taken against the detenus due to political power enjoyed by the detenu in H.C.P.No.1406 of 2012. Even after the Division Bench order of this Court in W.P.No.15156 of 2008 dated 27.06.2008, the police could not comply with the said order and ultimately on the basis of ground case, the Detaining Authority passed the detention order. The victims came forward with the complaints freely only in the year 2011, as the previous complaints were not entertained and no action was taken on the said complaints.
(2) The detenu in H.C.P.No.1406 of 2012 was implicated in the adverse cases and ground case, not only on the allegation of instigation, but also on direct allegations made against him to the effect that the detenu called the persons and threatened them and thus there is direct involvement of the detenu in Crime Nos.34, 35 and 41 of 2011 and in respect of Crime Nos.32 and 42 of 2011, the detenu has been implicated on the allegation of instigation and abetment. In order to substantiate such contention, learned Senior Counsels for the petitioners placed reliance on the decisions in SUBRAMANIAN V. STATE OF T.N. reported in 2012 (4) SCC 699; COLLECTOR & DIST. MAGISTRATE V. SANGALA KONDAMMA reported in 2005 (3) SCC 666; and NAVALSHANKAR ISHWARLAL DAVE V. STATE OF GUJARAT reported in 1993 Supp. (3) SCC 754.
(3) The adverse cases as well as the ground case registered against each of the detenu would make out a case that the detenus have indulged in land grabbing and as such, their activities would certainly attract the definition of "Slum Grabber" as contemplated under Section 2(h) of the Act and their continuous presence at large would affect the public order.
(4) The Detaining Authority placed reliance on several materials and documents to arrive at the subjective satisfaction that the detenu in H.C.P.No.1406 of 2012 has indulged in activities, which are prejudicial to the public order and as such, the Detaining Authority has rightly passed the detention order in order to prevent the detenu from indulging in further activities, which are prejudicial to the maintenance of public order and tranquillity. In support of such contention, the learned Senior Counsel would place reliance on (2008) 9 SCC 89 (K.K.Saravana Babu v. State of Tamil Nadu).
(5) The detention order is not liable to be quashed on the ground of non-furnishing of the supporting documents as the Detaining Authority already furnished the relevant documents relied on for arriving at the subjective satisfaction and the documents merely referred while narrating the facts need not be served upon the detenu. The learned Senior Counsel pointed out that all the documents sought for by the detenu have already been furnished and in respect of some of the documents, namely, writ petition order, etc., the detenu being one of the party to the said proceedings, he is aware of the said orders and as such, no prejudice is caused to the detenu. In support of the said contention, the learned Senior Counsel relied on the cases in STATE OF BOMBAY V. ATMA RAM SRIDHAR VAIDYA reported in AIR 1951 SC 157; STATE OF T.N. V. ABDULLAH KADHER BATCHA reported in (2009) 1 SCC 333; NAGENDRA NATH MONDAL V. STATE OF W.B. reported in 1972 (1) SCC 498 ; GOLAM HUSSAIN V. COMMISSIONER OF POLICE reported in (1974) 4 SCC 530; S.K.KEDAR V. STATE OF W.B. reported in (1972) 3 SCC 816.
(6) The contention of the detenu that there is no material placed before the Detaining Authority for remand extension of the detenu till 29.06.2012, is untenable as the said extension order of remand was passed in the presence of the detenu and as such, he is aware about the said factor.
(7) The Detaining Authority has rightly passed the detention order against the detenu as the detenu has been granted bail in other similar cases by the High Court and as such, there is likelihood of release of the detenu on bail and therefore, there is compelling necessity for the Detaining Authority to pass the impugned detention order. In support of such contention, the learned Senior Counsels for the respondents placed reliance on the decisions in G.REDDEIAH V. GOVT. OF A.P. reported in 2012 (2) SCC 389 and A.GEETHA V. STATE OF T.N. reported in 2006 (7) SCC 603.
8. Mr.S.Shanmugavelayutham, learned Public Prosecutor appearing for the respondents in H.C.P.Nos.380 and 617 of 2012, while adopting the contentions put forward by Mr.Ranjit Kumar, learned Senior Counsel appearing for the respondents in H.C.P.No.1406 of 2012, would contend that he is confining his submissions only in respect of the alleged violation of Section 8(1) of the Act. It is contended that there is no violation of Section 8(1) of the Act as the jail authorities have served the booklet in respect of the detenus, in H.C.P.Nos.380 and 617 of 2012 within the stipulated period of five days as contemplated under the Statute. It is pointed out by the learned Public Prosecutor that in respect of H.C.P.No.380 of 2012, the detention order was passed on 28.01.2012 and the booklet was attempted to be served on the detenu on 02.02.2012, but he refused to acknowledge the receipt of booklet stating that he has to read each and every page of the booklet containing 474 pages and thereafter only on 6.2.2012 he acknowledged the receipt of the booklet.
9. It is further contended that in respect of the detenu in H.C.P.No.617 of 2012, the booklet containing documents was received at the Central Prison, Salem, on 05.03.2012 and the same was intimated to the detenu for service to him on the same date, but the detenu after seeing the booklet, containing 405 pages informed that he will put his signature only after reading out all the pages and ultimately, the jail authorities were able to get the signature of the detenu only on 08.03.2012 as the token of acknowledgement. It is further submitted by the learned Public Prosecutor that the said incident and conversion took place between the detenu and the jail authorities was videographed on 05.03.2012 and a C.D. was produced before this Court. The learned Public Prosecutor would also produce a letter dated 24.03.2012 sent by the Superintendent, Central Prison, Salem, to the Assistant Commissioner of Police, Intelligence Wing, Salem City, informing that the booklet was received by the jail authorities on 05.03.2012, and on the same day it was intimated to the detenu and the detenu informed that he has to read the booklet containing 405 pages and thereafter, he would sign the same and ultimately, he signed the booklet on 08.03.2012. In the letter itself, it is stated that the Superintendent, Central Prison, is sending the C.D. containing the videograph of the conversation took place between the jail authorities and the detenu on 05.03.2012. By placing reliance on the contents in the C.D. as well as on the averments made in the counter-affidavit filed by the first respondent in H.C.P.No.617 of 2012 and in the supporting affidavit filed by the Assistant Jailor, Central Prison, in H.C.P.No.380 of 2012, the learned Public Prosecutor strenuously contended that there is no violation of Section 8(1) of the Act as the booklets were already shown to the detenu and the detenu refused to acknowledge the receipt of the same.
10. At this juncture, Mr.N.Natarajan and Mr.R.Shanmugasundaram, learned Senior Counsel appearing for the detenus submitted that they have to watch the C.D. and after that they would make their submissions in the afternoon after lunch break on 08.10.2012. After lunch break, the learned Senior Counsels for the detenus, after watching the contents in the CD and hearing the conversation therein, submitted that the said conversion nowhere disclose about the furnishing of the booklet by the jail authorities to the detenu and refusal of the detenu to acknowledge the same. It is emphasised by the learned Senior Counsels that even the booklet is not visible in the videograph and the conversation is nothing to do with the alleged serving of the booklet and refusal.
11. Mr.R.Shanmugasundaram, learned Senior Counsel would point out that the detenu in HCP No.617 of 2012 has made a specific reference about non-furnishing of the booklet within five days as contemplated under Section 8(1) of the Act even in the representation dated 24.03.2012 submitted before the Advisory Board, but, neither the Detaining Authority nor the jail authorities produced the C.D. containing the alleged conversation of the jail authorities with the detenu, before the Advisory Board, and only the documents such as booklets, grounds and representation alone were sent. It is further submitted by the learned Senior Counsel that the booklets served on the detenus and the booklets produced by the learned Public Prosecutor contain the seal of service on the detenus mentioning that they have read the contents of the booklet carefully and acknowledged the same only on 06.02.2012 and 08.03.2012 respectively in H.C.P.Nos.380 and 617 of 2012.
12. Mr.R.Shanmugasundaram, learned Senior Counsel would further contend that the actual occupants of the Angammal Colony have not given any complaint to the police and as such, the detenus have substantiated their contention that the detention orders are vitiated on the 'stale' ground as there is no 'proximity' or 'live link' between the date of occurrences, which have taken place during 2006 to 2009 and 2011 and the impugned detention orders. It is pointed out by the learned Senior Counsel in respect of H.C.P.No.1406 of 2012 that one D.Ganesan is the defacto complainant in the ground case registered in Crime No.711 of 2012, but the possession and occupation of the said D.Ganesan itself is doubtful as he has been impleaded as one of the defendant in the suit filed by one Rajkumar Tiwari in O.S.NO.13 of 2012 filed before the Vacation Court, Salem on 8.5.2012. It is further contended that the materials relating to the plaint in respect of the said suit was not placed before the Detaining Authority and non-placing of vital document before the Detaining Authority enabling the Detaining Authority to arrive at the subjective satisfaction vitiates the detention order. The learned Senior Counsel would also place reliance on the order passed by the Division Bench of this Court dated 27.06.2008 in W.P.No.15156 of 2008, which was filed by one Haribabu, wherein it is stated that there is no serious allegation made against the detenu in H.C.P.No.1406 of 2012 and there is a specific finding in the second writ petition in W.P.No.18439 of 2008 dated 10.10.2008 that the earlier order of this Court was not violated and the order passed by the Revenue Divisional Officer to the effect that in the disputed premises there was no occupant, was also taken note and the said order was not challenged by anyone and the same reached finality. In support of his contentions, the learned Senior Counsel relied on the following decisions:
(a)Khudiram Das V. State of W.B. reported in (1975) 2 SCC 81 ;
(b)Ashadevi V. K.Shivraj reported in 1979 SCC (Cri.) 262 : (1979) 1 SCC 222; and
(c)Ayya V. STate of U.P. reported in 1989 (1) SCC 374 and contended that non-placing of vital documents before the Detaining Authority would vitiate the order of detention.
13. We have given our careful and anxious consideration to the rival contentions put forward by either side and scrutinized the entire materials available on record including the affidavits filed by the petitioners, counter-affidavits filed by the first respondent and the supporting affidavit filed by the Assistant Jailor in H.C.P.No.380 of 2012 and also watched and heard the conversation between the Jailor and the detenu in H.C.P.No.617 of 2012 in C.D. by playing it in Lap-top, in the presence of the learned Public Prosecutor and the learned Senior Counsels for the petitioners, apart from perusing the impugned detention orders and its grounds.
14. Let us now consider the main grounds raised by the petitioners challenging the impugned detention orders one by one as hereunder.
(I) Whether the detention orders in HCP Nos.380 and 617 of 2012 are vitiated on the ground of violation of the provision under Section 8(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Act 14 of 1982) ?
15. Before considering the said contention, it is relevant to refer to Section 8(1) of Act 14 of 1982, which reads thus, "8. Grounds of order of detention to be disclosed to persons affected by the order.- (1) When a person is detained in pursuance of a detention order, the Authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government."
A reading of the above said provision would make it abundantly clear that the Detaining Authority, after making the detention order, shall furnish the grounds of detention as soon as may be, but not later than five days from the date of detention and shall afford the detenu, the earliest opportunity of making a representation against the detention order to the State Government, who is the approving authority under section 3(3) of the Act.
16. As far as the detenu in HCP No.380 of 2012 is concerned, the detention order was passed on 28.1.2012 and the order of detention and grounds of detention were served on him on 30.1.2012. The booklet containing the documents was served to the detenu on 6.2.2012 as could be seen from the seal of acknowledgement made by the detenu on 6.2.2012. In respect of the detenu in HCP No.617 of 2012, the detention order was passed on 28.2.2012 and the order of detention and the grounds were served on 1.3.2012 and the booklet containing the documents was served on 8.3.2012 as could be seen from the seal of acknowledgement found in the copy of booklet produced by the learned Public Prosecutor. The orders of approval by the State Government was passed on 8.2.2012 and 10.3.2012 respectively in HCP Nos.380 and 617 of 2012. Before passing the said approval orders, representations were submitted on 2.2.2012 in HCP No.380 of 2012 i.e., prior to passing the approval order and on 13.3.2012 in respect of HCP No.617 of 2012, i.e., after passing the approval order. Thus, it is evident that due to non-supply of the booklet containing the documents within the stipulated period of five days, the detenus were prevented from making effective representation before the Government objecting the approval of the orders of detention.
17. However, the learned Public Prosecutor strenuously contended that the booklet in respect of HCP No.380 of 2012 was attempted to be served on 2.2.2012 and in HCP No.617 of 2012 the booklet was attempted to be served on 5.3.2012, but the detenus have stated that they have to read out each and every page of the booklets and only thereafter they can put the seal of acknowledgment for having received the booklets. In respect of the said contention the learned Public Prosecutor placed reliance on the counter affidavit filed by the first respondent in HCP No.617 of 2012 and the supporting affidavit filed by the Assistant Jailor, Central Prison, Salem, in HCP No.380 of 2012.
18. We have perused the counter affidavit of the first respondent in HCP No.617 of 2012 and the supporting affidavit filed by the Assistant Jailor, Central Prison, Salem, in HCP No.380 of 2012. At this juncture, it is relevant to extract the statement made by the Assistant Jailor in the supporting affidavit in para 2, which runs as follows:
"The booklet containing 474 pages to be served to the detenu- Parapatty suresh @ Sureshkumar, was received on 02.02.12 in the Central Prison, Salem and when the same was explained in Tamil and served to the detenu-Parapatty Suresh @ Sureshkumar, he refused to acknowledge and stated that he will read each and every page then only he will acknowledge the booklet. Hence, he affixed his signature only on 06.02.12 after going through each and every page.
The delay in serving the booklet not by the Jail Authorities and the detenu- Parapatty Suresh @ Sureshkumar gone through each and every page prior to affixing his signature as such there is no violation in serving the document."
A reading of the above said specific and categorical statement only show that the booklet was received on 2.2.2012 in the Cental Prison, Salem and there is absolutely no averment whatsoever to the effect that the same was attempted to be served to the detenu on the same day. On the other hand, it is vaguely stated that the contents were explained in Tamil to the detenu, but he refused to acknowledge the same and stated that he will read each and every page and then only acknowledge the receipt of the same. The fact remains that the detenu has not refused to receive the booklet, but even according to the supporting affidavit, the detenu has to read each and every page and then only he will acknowlege. Yet another factor to be noticed by us is that there is absolutely no endorsement made by the Jail authorities to the effect that the detenu refused to receive the booklet when it was attempted to be served on 2.2.2012. Therefore, we are unable to countenance the submission of the learned Public Prosecutor that the booklet in HCP No.380 of 2012 was attempted to be served on the detenu on 2.2.2012 itself and the detenu refused to receive the same.
19. As far as HCP No.617 of 2012 is concerned, the learned Public Prosecutor placed reliance on ground (c) of the counter affidavit filed by the first respondent. It is relevant to extract the said portion as hereunder:
"c. Regarding the averments in Para (c) of the affidavit, it is submitted that the order of detention was passed on 28.2.2012. As per the arrest warrant issued by the Detaining Authority, the detenu was arrested on 1.3.2012. On 1.3.2012, the order and the grounds of detention were furnished to the detenu. The booklet containing the relied on documents were furnished at the Central Prison, Salem on 5.3.2012 and the same was intimated to the detenu for service on the same day. But the detenu after seeing the booklet said that, the book contains 405 pages, so he will put the signature after reading out all pages. The jail authorities asked the detenu to give the same in writing. But the detenu refused to give any letter in writing and refused to receive the Booklet without reading by himself. This incident and conversation was video graphed by the Jail Authorities on 5.3.2012. But the detenu was allowed to read the entire booklet and he took 3 days time. So the Jail authorities though served the Booklet on 5.3.2012 itself, the Jail authorities were able to get the signature of the detenu only on 8.3.2012 in each and every pages of the Booklet. The Video C.D. Containing the conversation between the Jail authorities and the detenu is enclosed in the Annexure. So there is no delay in serving the Booklet as alleged by the petitioner. Hence the contrary averments are not correct."
A reading of the above statement makes it abundantly clear that the booklet was received by the jail authorities, Salem, on 5.3.2012 and the said fact was intimated to the detenu on the same day. It is pertinent to note that there is no specific averments that the same was atempted to be served immediately to the detenu by the jail authorities. In HCP No.617 of 2012, no supporting affidavit was filed by the jail authorities to substantiate the averments made by the first respondent in the counter affidavit. On the other hand, it is vaguely stated in the counter affidavit of the first respondent that the detenu, after seeing the booklet containing 405 pages, stated that only after reading out all the pages, he would put his signature and when the jail authorities asked to give the same in writing, the detenu refused to do so. Thereafter the detenu was allowed to read the entire booklet and the jail authorities could get the acknowledgement of the detenu only on 8.3.2012. The learned Public Prosecutor produced the CD containing the conversation alleged to have taken place between the detenu and the jail authorities. We have played the said CD in Laptop in the open Court in the presence of the learned Senior Counsels appearing for the detenus as well as learned Public Prosecutor. We are not able to note any specific conversation regarding furnishing of the booklet to the detenu and refusal of the same by the detenu. It is also relevant to state that not even the booklet could be seen in the videograph, except some bald conversation recorded for about a minute.
20. In view of the above reasons, we have no hesitation to hold that the respondents have not substantiated the contention of their attempt to serve the booklets on 2.2.2012 and 5.3.2012 respectively on the detenus in HCP Nos.380 and 617 of 2012. Therefore, it is evident that there is clear violation of the statutory provision contemplated under section 8(1) of the Act, as it is mandatory for the Detaining Authority to serve the booklet as soon as may be, but not later than five days from the date of the detention order.
21. At this juncture, it is relevant to refer to the following decisions on this aspect.
(a) The Constitution Bench of the Supreme Court in the decision reported in AIR 1951 SC 157 : 1951 SCR 167 (State of Bombay v. Atma Ram Shridhar Vaidya), while dealing with the issue of furnishing of the detention order and its grounds along with other materials to the detenu, held as hereunder:
"11. ......................... In our opinion, if these two conditions are fulfilled, the objection against a later communication of details or facts is not sufficient to cause an infringement of the provision made in Article 22(5). The question has to be approached from another point of view also. As mentioned above, the object of furnishing grounds for the order of detention is to enable the detenu to make a representation i.e. to give him an opportunity to put forth his objections against the order of detention. Moreover, the earliest opportunity has to be given to him to do that. While the grounds of detention are thus the main factors on which the subjective decision of the Government is based, other materials on which the conclusions in the grounds are founded could and should equally be conveyed to the detained person to enable him to make out his objections against the order. To put it in other words, the detaining authority has made its decision and passed its order. The detained person is then given an opportunity to urge his objections which in cases of preventive detention comes always at a later stage. The grounds may have been considered sufficient by the Government to pass its judgment. But to enable the detained person to make his representation against the order, further details may be furnished to him. In our opinion, this appears to be the true measure of the procedural rights of the detained person under Article 22(5)."
(Emphasis supplied)
(b) The Division Bench of this Court in the decision reported in (2011) 3 MLJ (Crl) 391 (Mageswari v. Government of Tamil Nadu) has considered the effect of non-serving of detention order and booklet and compliance of mandatory provision of section 8(1) of the Act 14 of 1982. After referring the provision, the Division Bench in para 7 held as follow:
"7. Of course, the language of Section 8(1) does not refer to the supply of copies of the documents along with the grounds of detention. It simply refers to the communication to the detenu of the grounds on which the order of detention has been made. But, however, it was superadded with the rider specifying the purpose for which the grounds are to be communicated. The purpose enshrined therein is to afford the detenu the earliest opportunity of making an effective representation against the order of detention to the Government. The mere supply of the grounds of detention unaccompanied by copies of the materials relied on by the detaining authority, is of no use for the purpose of making an effective representation, at the earliest opportunity, against the order of detention. Therefore, we are of the view that the supply, of copies of materials relied on along with the grounds of detention is also the requirement of the said provision to enable the detenu to make an effective representation at the earliest point of time. In other words, the supply of grounds of detention as contemplated in Section 8(1), will include the supply of the copies of the relied on documents also and this view will also be strengthened by the fact that the abstract order of detention could not have been passed even before preparing the grounds of detention stating the reasons."
(Emphasis Supplied)
(c) The same view was taken in the subsequent Division Bench decisions of this Court reported in 2011 (1) MWN (Cr.) 560 (Govindammal v. The Commissioner of Police); (2012) 3 MLJ (Crl) 577 (K.R.Nath v. Secretary to Government); and (2012) 3 MLJ (Crl) 599 (Vinod v. State of Tamil Nadu).
22. The principle laid down by the Honourable Supreme Court and the Division Benches of this Court in the decisions cited supra, is squarely applicable to the question involved in HCP Nos.380 and 617 of 2012, as we have already held that the Detaining Authority and the Jail authorities failed to comply with the mandatory provision contemplated under Section 8(1) of the Act, by serving the detention order along with the booklet within the prescribed time limit of five days and thereby the impugned detention orders in HCP Nos.380 and 617 of 2012 are vitiated.
(II) Whether the vital documents relating to the detention orders in all the three petitions, namely, H.C.P.Nos.380, 617 and 1406 of 2012 have been placed before the detaining authority and if the said vital documents are not placed, what would be the effect ?
23. The sheet-anchor of the contentions of the learned Senior Counsels for the detenus is to the effect that the Sponsoring Authority in all the three petitions have failed to place number of vital documents before the Detaining Authority, which would influence the decision making process of the Detaining Authority for arriving at the subjective satisfaction and as such, the detention orders are vitiated.
24. It is pertinent to note that the petitioner in H.C.P.No.380 of 2012 has taken a ground that the vital documents, namely, confession statements of the actual assailants in the Mallur Police Station Crime No.222 of 2010 were not placed before the Detaining Authority as the assailants Sivaguru and Gokulnath have confessed that they committed the alleged offences on their own for their personal reasons and animosity, which totally exonerates the detenu from the alleged instigation. Therefore, in the said H.C.P., the following vital documents said to have been relied on was not placed before the detaining authority, namely,
(a)Injunction order obtained by Sivaguru against his father.
(b)Confession statements of Sivaguru and Gokulnath.
(c)Order passed in W.P.No.15156 of 2008
(d)Executive Order passed by the R.D.O., Salem, in Na.Ka.4963/A-2/2008 dated 04.08.2008.
(e)Suit papers, pleadings and documents in O.S.No.1217/2007 before the Principal District Munsif, Salem.
25. In respect of H.C.P.No.617 of 2012, in the ground taken in the petition in respect of this issue of non-placing of vital and relevant documents, the following documents are mentioned :
(a)Common modification orders passed by the Hon'ble High Court in Crl.M.P.Nos.2 & 3 of 2011 in Crl.O.P.Nos.20007 & 17427 of 2011 dated 29.09.2011.
(b)First page of the registered sale deed No.9537 of 2006.
26. With regard to H.C.P.No.1406 of 2012, the learned Senior Counsel pointed out that in the ground taken in the petition with regard to this issue, the following documents are listed :
(i) The order passed by the Company Law Board in C.P.No.36 of 2008 dated 4.4.2012
(ii) The Order passed by the High Court in Crl.O.P.No.17302 of 2011 dated 22.7.2011
(iii) The Order passed by the learned Principal Sessions Judge, Salem in Crl.M.P.No.2289 of 2012 dated 8.6.2012
(iv) The objections filed by the Public Prosecutor before the learned Principal Sessions Judge, Salem in Crl.M.P.No.2289 of 2012 dated 7.6.2012.
(v) The Bail petition filed before this Court in Crl.O.p.No.13811 of 2012 dated 12.6.2012.
(vi) Case papers relating to the appeal filed by one Ravichandran before this Court challenging the dismissal order in Company Appeal dated 4.6.2012.
27. As far as this crucial issue is concerned, there is no satisfactory reply from the respondents. It is merely contended by the learned Senior Counsel for the respondents and the learned Public Prosecutor that the Detaining Authority has not placed reliance on those documents. At this juncture, we are constrained to state that it is not the question of placing reliance or not placing reliance, but it is only the question of placing vital documents before the Detaining Authority and consideration of available documents by the Detaining Authority in order to arrive at the subjective satisfaction before passing the detention order. It is well settled by a catena of decisions of the Hon'ble Apex Court that the Sponsoring Authority is not only bound to place the vital documents before the Detaining Authority, but it is the obligation of the Detaining Authority to consider the vital documents by applying his mind and he cannot simply overlook and ignore the vital documents.
28. The learned Senior Counsels for the detenus submitted that in C.P.No.36 of 2008 filed by one Ravichandran, the Company Law Board passed orders on 4.4.2012 dismissing the petition, which is in favour of the detenu, against which a Company appeal is filed before this Court and the same is pending and though the same is referred by the Detaining Authority, the Detaining Authority has simply ignored and overlooked the same and not considered the said vital document in order to arrive at the subjective satisfaction. It is also pertinent to note that the Sponsoring Authority has not placed certain vital and material documents before the Detaining Authority and if those documents were placed and the documents already available on record before the Detaining Authority were considered, the said documents could have influenced the mind of the Detaining Authority to take a different view. At this juncture, the learned Senior Counsel for the respondents submitted that the said ground was not taken as a ground in the petition. We are unable to accept such contention as the Hon'ble Apex Court has held that in a petition for habeas corpus, it is not necessary to raise specific plea in respect of certain grounds and the detenus are entitled to raise the said grounds during the course of arguments. It is relevant to refer the decision of Apex Court reported in 1987 SCC (Crl) 674 : (1987) 4 SCC 58 (Mohinuddin v. District Magistrate) wherein in para 4 the Apex Court held thus, "4. It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioner cannot be permitted to raise grounds not taken in the petition at the hearing. The same rule cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well settled that it is incumbent on the State to satisfy the court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Article 22(5). ........"
(Emphasis Supplied) The principle laid down by the Hon'ble Apex Court would make it clear that the contention of the learned Senior Counsel for the respondents as stated above is untenable and it is always open to the detenus to raise their points even during the course of hearing. As far as the instant case is concerned, as pointed out above, though the Detaining Authority has referred the Company Law Board Order, not applied his mind to the said vital document, which is in favour of the detenu and the said non-consideration of the material document would also vitiate the detention order.
29. In respect of not placing other material and vital documents, it is needless to state that the said factor would also vitiate the detention orders. For this proposition, we refer the principles laid down by the Hon'ble Apex Court in the following decisions :
(a) In Khudiram Das V. State of W.B. reported in (1975) 2 SCC 81, the Hon'ble Apex Court has held as follows :
"13. .... It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority."
(emphasis supplied)
(b) The Hon'ble Apex Court in Ashadevi V. K.Shivraj, reported in 1979 (1) SCC 222 has held thus, "6. It is well-settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. In Sk. Nizamuddin v. State of West Bengal (AIR 1974 SC 2353) the order of detention was made on September 10, 1973 under Section 3(2)(a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and this subjective satisfaction, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the petitioner on April 14, 1973. In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub-Divisional Magistrate, Asansol, but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. It appeared clear on record that the history-sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case. In connection with this aspect this Court observed as follows:
We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate. It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant. These observations were approved by this Court in Suresh Mahato v. District Magistrate, Burdwan (AIR 1975 SC 728). The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order."
(emphasis supplied)
(c) In the decision in Ayya V. State of U.P reported in 1989 (1) SCC 374, the Hon'ble Apex Court has held as follows :
"27. It is equally unnecessary to decide whether the telegram despatched by Mirazuddin was at 12.30 midnight on 18-2-1988 or as suggested by the respondents at 12.30 afternoon on 19-2-1988. It is extremely probable that it was sent not at 12.30 midnight as claimed by the petitioner, but only at 12.30 after noon on 19-2-1988 as suggested by Shri Yogeshwar Prasad. But it cannot be disputed that such a telegram was sent. This telegram asserts, for whatever it was worth, that petitioner was taken into custody at 8.00 p.m. on 18-2-1988. The contention of Shri Garg is that the non-consideration of this telegram, which had a bearing on the complicity or otherwise of the petitioner in the alleged offence vitiates the detention for non-application of mind. The detaining authority in its affidavit says:
Deponent is not in a position to say about the facts of the telegram. It might have been given in pesh-bandi.
28. What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes materiality."
(emphasis supplied)
30. The principles laid down by the Hon'ble Apex Court in the decisions cited supra would make it crystal clear that non-placing of vital documents before the Detaining Authority certainly vitiates the subjective satisfaction arrived at by the Detaining Authority. In the instant case, we have already pointed out that certain vital documents, viz., orders in W.P.No.15156 of 2008 dated 27.06.2008 and W.P.No.18439 of 2008 dated 10.12.2008; plaint in O.S.No.13 of 2012 on the file of Vacation Court, Salem; the order of the Company Law Board in C.P.No.36 of 2008 dated 4.4.2012 and the Company Appeal petition, if placed before the Detaining Authority, the Detaining Authority might have taken a different view and as such, the said factor of non-placing of the vital documents before the Detaining Authority vitiates the impugned detention orders in all the three petitions.
(III) Whether all the material documents relied on by the Detaining Authority have been served to the detenus and if those documents are served, whether the said documents are served within a reasonable time ?
31. In respect of this aspect viz., furnishing of material documents to the detenus enabling them to make effective representations, it is relevant to refer to the documents sought for by the respective detenu in all the three cases.
32. In HCP No.380 of 2012, the detenu has sought for the following documents:
(i) Injunction order obtained by Sivaguru against his father
(ii) Confession statements of Sivaguru and Gokulnath
(iii) Order passed in W.P.No.15156 of 2008
(iv) Executive Order passed by R.D.O., Salem, in Na.Ka.No.4693/A-2/2008 dated 4.8.2008
(v) Suit papers, pleadings and documents in O.S.No.1217 of 2007 before the Principal District Munsif, Salem It is relevant to point out that the detenu made representation on 10.2.2012. Admittedly the said documents were not furnished along with the detention order and material documents and the same were furnished only on 17.2.2012 i.e, after a delay of six days, whereas the approval of the detention order was made by the State Government as early as on 8.2.2012, which was communicated to the detenu through the Superintendent of Police on 13.2.2012.
33. In respect of HCP No.617 of 2012, the detenu sought for the following documents as per the undated representation:
(i) Translated copy of the order passed by this Court in W.P.No.7952 of 2009 dated 28.4.2011.
(ii) Translated copy of the sale deed executed by Shantha and others in favour of Rajkumar Tiwari, registered as Doc.No.1789 of 2011 dated 18.7.2011 at SRO Joint III, Salem.
(iii) Copy of the original order passed by this Court in M.P.No.1 of 2011 in Crl.O.P.NO.17427 of 2011 dated 30.8.2011.
(iv) Legible copy of page No.116 of the booklet.
(v) Translated copy of the Magistrate Order dated 3.10.2011 in connection with Cr.No.42 of 2011.
(vi) Remand report along with the Magistrate's endorsement in connection with Cr.No42 of 2011.
(vii) Copy of the original order passed by this Court in M.P.No.1 of 2011 in Crl.O.P.No.25679 of 2011
(viii) Order passed by the learned Judicial Magistrate, Poonamallee in CMP No.260 of 2012 in connection with Cr.No.225 of 2011.
(ix) Translated copy of the order passed by this Court in W.P.No.25964 of 2008 dated 8.12.2008.
(x) Translated copy of the order passed by this Court in W.P.No.13051 of 2008 dated 21.8.2008.
(xi) Pleadings in O.S.No.1271 of 2007 on the file of the Prl.District Munsif, Salem, filed by K.R.Premnath and Others.
(xii) Copy of the original order passed by this Court in M.P.No.1 of 2011 in Crl.O.P.No.21766 of 2011 dated 25.11.2011.
(xiii) Translated copy of the order passed by this Court in W.P.No.15156 of 2008 dated 27.6.2008.
(xiv) FIR in Cr.Nos.322 and 323 of 2008 on the file of Inspector of Police, Hasthampatty P.S., Salem.
(xv) FIR in Cr.No.932 of 2008 on the file of Inspector of Police, Pallapatty P.S., Salem.
(xvi) Legible copy of the Dhana Settlement document (xvii) First page of the sale deed document No.9537 of 2006 (xviii) Legible copy of the tax receipt.
(xix) Legible copy of the document registered as Doc.No.8791 of 2006 (xx) Copy of the original order passed by this Court in M.P.No.1 of 2011 in Crl.O.P.No.17427 of 2011 dated 4.8.2011 (xxi) Copy of the original order passed by this Court in Crl.O.P.NO.20007 of 2011 dated 30.8.2011.
(xxii) Copy of the original order passed by this Court in M.P.No.1.of 2011 in Crl.O.P.No.25679 of 2011 dated 9.1.2011 (xxiii) Copy of the original order passed by this Court in Crl.O.P.No.21766 of 2011 dated 16.9.2011.
The said documents were admittedly furnished to the detenu only on 19.3.2012, after a delay of six days.
34. Similarly in HCP No.1406 of 2012, the detenu sent representation through his wife on 26.6.2012 seeking the following documents:
(i) Affidavit of Manoharan filed before this Court in W.P.No.18439 of 2008 (English and Tamil)
(ii) Counter affidavit filed by the then District Collector, Salem in W.P.NO.18439 of 2008 (Tamil and English)
(iii) Counter affidavit filed by the then Commissioner of Police, Salem in W.P.No.18439 of 2008 (Tamil and English)
(iv) Order passed by this Court in W.P.No.18439 of 2008 (English and Tamil)
(v) Plaint in O.S.No.589 of 2012 (re-numbered) filed by Rajkumar Tiwari before the Principal District Munsif, Salem.
(vi) Legal heir certificate of late Chidambaram Chettiar issued by the Tahsildar, Musiri Taluk, dated 20.10.2006.
(vii) Copy of the order passed by the Company Law Board in C.P.no.36 of 2008 filed by V.Ravichandran family.
(viii) Translated copy of the order passed by this Court in Crl.O.P.17302 of 2011
(ix) Translated copy of the order passed by the learned Prl.Dist.and Sessions Judge, Salem in Crl.M.P.No.2289 of 2012
(x) Translated copy of the order passed by this Court in Crl.O.P.No.13811 of 2012
(xi) Company Appeal Memo dated 4.6.2012 filed by Ravichandran before this Court.
(xii) Translated copy of the letter (page 37 of the booklet)
(xiii) Page Nos.116 to 121 of the booklet is not legible
(xiv) Page No.397 of the booklet is not legible
(xv) Page Nos.424 to 427 of the booklet is not legible (xvi) Page No.464 of the booklet is not legible The said documents were furnished only on 5.7.2012, after receipt of representation, i.e, after a delay of ten days.
35. In view of non-furnishing of material documents, even while serving the detention orders and grounds, and furnishing certain material documents subsequently on receipt of the representation after considerable delay, would certainly infringe the right of the detenu under Article 22(5) of the Constitution of India, as the detenus have been deprived of their right to make effective representation at the earliest point of time. On this aspect, we refer to the following decisions.
(i) In the Larger Bench decision of the Honourable Apex Court reported in AIR 1951 SC 157 : 1951 SCR 167 (State of Bombay v. Atma Ram Shridhar Vaidya) it is clearly and categorically held that apart from the grounds of detention, the detenu has to be furnished with other materials, enabling him to make out his effective objections and representation. In para 8 the Hon'ble Supreme Court held thus, "8. .................. What must be supplied are the grounds on which the order has been made and nothing less. The second right of being afforded the earliest opportunity of making a representation against the order is not confined to only a physical opportunity by supplying paper and pen only. In order that a representation can be made the person detained must first have knowledge of the grounds on which the authorities conveyed that they were satisfied about the necessity of making the detention order. It is therefore clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object. .............." (Emphasis Supplied) The Hon'ble Apex Court ultimately held that if the material documents have not been furnished to the detenu at the earliest point of time along with the order of detention and its grounds, it would infringe the right of the detenu under Article 22(5) of the Constitution of India.
(ii) A Three Judge Bench of the Apex Court in the decision reported in (1980) SCC (Crl) 414 : (1980) 2 SCC 270 (Ramachandra A.Kamat v. Union of India) held as follows:
"6. The right to make a representation is a fundamental right. The representation thus made should be considered expeditiously by the government. In order to make an effective representation, the detenu is entitled to obtain information relating to the grounds of detention. When the grounds of detention are served on the detenu, he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. When the detenu makes a request for such documents, they should be supplied to him expeditiously. The detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him when copies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition. What is reasonable expedition will depend on the facts of each case.
7. .................................
8. If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law. When the Act contemplates the furnishing of grounds of detention ordinarily within five days of the order of detention, the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenu and are expected to be in possession of the detaining authority should be furnished with reasonable expedition."
(Emphasis Supplied)
(iii) After referring the above said decision in 1981 SCC (Crl) 471 : (1981) 2 SCC 436 (Kirit Kumar Chaman Lal Kundaliya v. Union of India) in para 12, the Hon'ble Apex Court further held thus, "12. ........................................................
Thus, it is absolutely clear to us that whether the documents concerned are referred to, relied upon or taken into consideration by the detaining authority they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention. This not having been done in the present case the continued detention of the petitioner must be held to be void."
36. The principle laid down by the Hon'ble Supreme Court in the above cited decisions would make it clear that even at the time of serving or furnishing the detention order and its grounds, the detenu should be served with the material documents referred and relied on by the Detaining Authority. Mr.Ranjith Kumar, learned Senior Counsel appearing for the respondents contended that it is for the Detaining Authority to serve only the 'relied on documents' and not the 'referred documents'. The said contention is contrary to the decisions cited supra. Even in the earliest decision in AIR 1951 SC 157 (supra) cited by the learned Senior counsel for the respondents himself, we have pointed out that the Constitution Bench of the Apex Court clearly and categorically held that all the materials relied as well as referred by the Detaining Authority must be supplied with a view to make effective representation at the earliest point of time, as it is procedural safeguard given to the detenu under Article 22(5) of the Constitution of India. At this juncture, it would be apt to refer the latest three Judge Bench decision of the Hon'ble Apex Court reported in (2011) 5 SCC 244 (Rekha v. State of Tamil Nadu) wherein the Apex Court held as follows:
"17. 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 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 and historical struggles, will become nugatory.
19. In the Constitution Bench decision of this Court in M. Nagaraj v. Union of India ((2006) 8 SCC 212) this Court observed: (SCC p. 241, para 20) 20. 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 nine-Judge Constitution Bench decision of this Court in I.R. Coelho v. State of T.N.((2007)2 SCC 1), this Court observed: (SCC pp. 101 & 80, paras 109 & 49) 109. It is necessary to always bear in mind that fundamental rights have been considered to be [the] heart and soul of the Constitution. 49. Fundamental rights occupy a unique place in the lives of civilised societies and have been described in judgments as transcendental, inalienable and primordial.
21. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is 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?
36. It has been held that the history of liberty is the history of procedural safeguards. (See Kamleshkumar Ishwardas Patel v. Union of India ((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 v. State of Punjab ((1981)4 SCC 481): (SCC p. 483, para 4) 4. 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.
39. 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 Pelham Dale case ((1881) 6 QBD 376 (CA): (QBD p. 461) 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. (Emphasis Supplied)
37. A Full Bench of this Court in the decision reported in 2005 (2) LW (Crl) 946 (FB) (K.Thirupathi v. District Magistrate and District Collector, Tiruchirapalli District & Another), referring the decisions of the Hon'ble Apex Court, held as follows:
"25. It is by now well settled that in all detention laws, the orders of detention and its continuance of detention should be in conformity with Article 22 of the Constitution of India and slightest infraction of the Constitutional protection enshrined therein would be a valid ground to set the detenu at liberty."
(Emphasis Supplied) The principles laid down by the Hon'ble Apex Court in the decisions cited supra make it clear that non-furnishing of material and vital documents also vitiates the detention orders.
(IV) Whether there is proximity between the offences referred in the detention orders passed against the detenus, and whether there is compelling necessity for the Detaining Authority to pass the detention orders ?
38. Mr.N.Natarajan, learned Senior Counsel appearing for the detenus strenuously contended that the offences said to have been committed by the detenus in respect of the adverse cases related to the years 2007, 2008, 2009 and 2011 and there is no proximity and live link between the detention of the detenus and the alleged prejudicial activities, necessitating the Detaining Authority to arrive at the subjective satisfaction that there is imminent possibility or compelling necessity to pass the detention orders.
39. It is pointed out by the learned Senior Counsel that in respect of detenu in HCP No.380 of 2012 the occurrence in the first adverse case took place on 13.8.2010 which relates to offence of murder; the occurrence in the second adverse was on 20.1.2008; the occurrence took place in third adverse case was on 28.3.2007; the occurrence in the 4th adverse case was between August 2007 and 12.1.2009; and the occurrence in the ground case was said to have taken place on 14.9.2009.
40. In HCP No.617 of 2012, the occurrence in the first adverse case took place on 20.1.2008; the occurrence in the second adverse case took place on 28.3.2007; the occurrence in the third adverse case took place from 14.9.2009 to 2.10.2011; the occurrence in the 4th adverse case took place from August 2007 to 12.1.2009; and the occurrence in the ground case said to have taken place from August 2007 to 12.1.2009.
41. In HCP No.1406 of 2012, the occurrence in the first adverse case took place on 20.1.2008; the occurrence in the second adverse case took place from 10.9.2007 to 17.7.2011; the occurrence in the third adverse case took place on 28.3.2007; the occurrence in the 4th adverse case took place from August 2007 to 12.1.2009; the occurrence in the 5th adverse case took place from 14.9.2009 to 2.10.2011; and the occurrence in the ground case said to have taken place on 3.6.2012.
42. It is pertinent to note that in respect of the adverse cases as well as the ground cases, complaints have been preferred only during the year 2011 and 2012, in respect of the offences alleged against the detenus from the year 2007 onwards. Mr.Ranjith Kumar, learned Senior Counsel appearing for the respondents contended that the complainants preferred the complaints immediately after the alleged occurrences, but the Police have not taken any action and as the result, they have to file writ petition and Crl.O.Ps before this Court. It is further contended that even after the directions of this Court, no action was taken by the Police. In our view, even the said contention is untenable for the simple reason that the aggrieved persons have not approached this Court seeking direction to take action against the Police. On the other hand, NGO represented by G.Haribabu filed W.P.No.15156 of 2008, and later one Advocate S.Manoharan filed writ petition in W.P.No.18439 of 2008. At this juncture it is relevant to refer the orders of this Court passed in W.No.15156 of 2008 dated 27.6.2008 passed by the First Bench of this Court, which reads as follows:
"3. We do not find that there is any serious complaint made by these persons who are allegedly evicted by force.
5. We merely give liberty to the actual residents of the area to lodge specific complaint with the Commissioner of Police, Salem City. We make it clear that if any such complaint is made with the Commissioner of Police, the Commissioner of Police will hold an immediate enquiry in the matter and will promptly bring the offenders to book. While taking such steps, the Commissioner shall be guided by legal provisions and by obviously ignoring any political affiliations of any parties. We want the Commissioner to restore the law and order in the area if the same has been violated. We further direct the Commissioner to ensure that no person is evicted from his home without any authority of law. Proper steps should be taken to see that the evicted persons enter their original home if there is no legal bar. The commissioner shall make inquiry before restoring that position. We, however, make it clear that we are not making any observation with regard to the right, title and interest of any person's property.
(Emphasis Supplied) The Hon'ble First Bench in a subsequent writ petition in W.P.No.18439 of 2008, order dated 10.12.2008, referred the above order in W.P.No.15156 of 2008 dated 27.6.2008 and held thus,
11. .... A detailed counter affidavit has been filed by the eighth respondent, the then Minister of Agriculture, Government of Tamil Nadu (and presently a Minister without portfolio), refuting the allegations of mala fides made against him.
12. Though the petitioner has made several allegations against the eight respondent, he has not substantiated it in the manner known to law. Perhaps, it is for that reason he has come up with the plea to form a Committee constituting of Senior Civil Servants. It is needless to state that it is for the petitioner to prove such allegations and it is not for this Court to conduct a roving enquiry to find materials to support required, an useful reference may be made to the decision of the Supreme Court in E.P.Royappa V. State of Tamil Nadu reported in (1974) 3 SCC 3. The view taken in E.P.Royappa's case has once again been reemphasised in the case relating to M.Sankaranarayanan v. State of Karnataka, reprted in 1993 (1) SCC 54.
13. Further the present writ petition is only confined to deputing senior IAS and IPS Officers to visit the Salem City and find out the implementation of the orders of this Court. It must be stated that the prayer made by the petitioner is very strange. When this Court had passed final orders viz., on 27.6.2008 and 7.7.2008 in the earlier writ petitions and if the present petitioner finds that there was any violation, the only course open to the petitioner is to file a contempt application. In such cases, it is open to this Court to ascertain whether there was any violation of the orders of this Court and whether the orders of this Court have been complied with or not. On the contrary, it is not known as to how the petitioner being an advocate and a civil libertarian can come forward to file the writ petition seeking direction of this Court to appoint a committee of Senior Civil Servants to go into the issue of violation of this Court's order. The violation of this Court's order has to be ascertained only by this Court and not through a committee consisting of Senior IAS and IPS officers.
21. Though the petitioner's counsel has filed a rejoinder to the counter-affidavit filed by the eight respondent, no such rejoinder has been filed to the common counter-affidavit filed on behalf of the sixth respondent, Commissioner of Police. The District Collector has stated in paragraph 14 of the counter-affidavit (extracted above), that the actual residents' have not made any complaint. He has also stated in paragraph 10 that the occupants of the said land settled with their legal heirs after receiving adequate compensation by executing proper documents to the said legal heirs. None of them have preferred any complaint of any sort to anyone and the property is now covered with fence and nobody is residing in the disputed property now and it is only a vacant site. Hence, the Revenue Divisional Officer, Salem, passed an order on 4.8.2008 stating that no proceedings is necessary under Section 145 (1) Cr.P.C. The said order is not challenged before any Court. These averments made by the District Collector and the Superintendent of Police are also not under serious challenge. Therefore, we have no clinching material to hold that there was violation of the order passed by this Court on 27.6.2008. We are also satisfied with the steps taken by the fourth and fifth respondents in implementing the order of this Court."
(emphasis supplied)
43. From the perusal of the above order it is evident that the First Bench of this Court was satisfied with the implementation of the order of this Court dated 27.6.2008 by the authorities concerned. It is also evident that the First Bench of this Court (A.K.Ganguly.,CJ & F.M.Ibrahim Kalifullah.,J (as they then were)) in the said order incorporated the specific and definite statement made by the District Collector to the effect that the actual residents have not made any complaint. Further, it is evident from the said order that the Revenue Divisional Officer, Salem has passed an order dated 4.8.2008, wherein it is stated that no proceedings is necessary under Section 145(1) of Cr.P.C. and the said order was not challenged by anyone. Ultimately it is observed by the First Bench that they have no clinching material to hold that there was violation of the order passed by this Court on 27.6.2008. All these factors would clearly demonstrate that complaints have been preferred in respect of the incidences said to have taken place as early as in the years 2007, 2008, 2009 and only in the year 2011 and the actual residents or the owners have not come forward with any complaint at the earliest point of time as contended by the learned Senior Counsel for the respondents. We are also constrained to state that as per the above findings of the First Bench dated 10.12.2008 in the latter writ petition, the earlier order of this Court passed in W.P.No.15156 of 2008 was not violated. Therefore there is absolutely no explanation whatsoever from the respondents as to the reason for the inordinate delay in giving complaints in all the adverse cases against the detenus in all the three HCPs.
44. In HCP No.1406 of 2012 one Ganesan is the defacto complainant in the ground case for the occurrence took place on 3.6.2012 and the complaint was given on the same day. However, the fact remains, against the said defacto complainant, a civil suit was filed by one Rajkumar Tiwari in O.S.No.13 of 2012 on the file of the Vacation Civil Court, Salem on 8.5.2012, i.e, two weeks prior to the occurrence, by impleading the defacto complainant as the first defendant, which discloses that there is a dispute between the complainant Ganesan and Rajkumar Tiwari and this factor was overlooked and not considered by the Detaining Authority. It is also relevant to note that the detenu in HCP 1406 of 2012 has been implicated on the allegation of instigation along with 29 co-accused. It is curious to note that the Detaining Authority has not passed detention order against anyone of the co-accused, except the detenu herein.
45. In view of the aforesaid factors, we have no hesitation to hold that there is absolutely no 'proximity' and 'live link' between passing of detention order and the offences alleged against the detenus herein.
46. At this juncture it is relevant to refer the following decisions on this aspect:
(a) In the Three Judge Bench decision reported in (2012) 2 SCC 176 (Yumman Ongbi Lembi Leima v. State of Manipur) the Hon'ble Apex Court held thus, "23. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that the (sic exercise of) extraordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention.
24. Article 21 of the Constitution enjoins that:
21. Protection of life and personal liberty.No person shall be deprived of his life or personal liberty except according to procedure established by law. In the instant case, although the power is vested with the authorities concerned, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution.
26. In addition to the above, the FIRs in respect of which the appellants husband had been arrested relate to the years 1994, 1995 and 1998 respectively, whereas the order of detention was passed against him on 31-1-2011, almost 12 years after the last FIR No. 190(5)98 IPS under Section 13 of the Unlawful Activities (Prevention) Act. There is no live link between the earlier incidents and the incident in respect of which the detention order had been passed." (Emphasis Supplied)
(b) In (1983) 4 SCC 443 (Kamlakar Prasad Chaturvedi v. State of M.P.) the Apex Court took similar view and in para 12 held thus, "12. The first two incidents which are of 1978 and 1980 are mentioned as grounds of detention in the order dated May 6, 1983. There can be no doubt that these grounds especially ground 1 relating to an incident of 1978 are too remote and not proximate to the order of detention. It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an order of detention under Section 3(2) of the Act. Nor is it open to the Detaining Authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order, for as a matter of fact it has been mentioned as a ground of detention. Now there is no provision in the National Security Act, 1980 similar to Section 5-A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 which says that where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, non-relevant, not connected or not proximately connected with such persons or invalid for any other reason, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention and (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds. Therefore in the present case it cannot be postulated what view would have been taken by the Detaining Authority about the need to detain the petitioner under Section 3(2) of the Act if he had not taken into account the stale and not proximate grounds 1 and 2 into consideration in arriving at the subjective satisfaction. We are, therefore, of the opinion that the petitioner's detention is unsustainable in law. Accordingly, we quash the order of detention and direct that the petitioner be set at liberty forthwith." (Emphasis Supplied)
(c) In another earlier decision by a three Judge Bench of the Apex Court in (1982) 1 SCC 116 ( Harnek Singh v. State of Punjab) the Apex Court held thus, ".............. We are clearly of the opinion that offences which are said to have been committed by the detenu as far back as February 27, 1980 could hardly form a ground for his detention on a date as late as July 10, 1981, the gap between the two being well-nigh a year and a half. No explanation at all has been furnished on behalf of the State as to why action under the Act was not taken at the earliest possible after the alleged commission of the offences which are the foundation of the grounds for detention. In our opinion, the charge is so stale in relation to the detention as not to have any real connection with it. .........." (Emphasis Supplied)
47. The principles laid down by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the issue involved in these cases, as we have already held that there is no 'proximity' and 'live link' between passing of detention orders and the offences alleged against the detenus herein, which have taken place much earlier to the passing of the impugned detention orders, and as such the impugned detention orders are liable to be quashed on this ground as well.
(V) Whether there is imminent possibility or compelling necessity warranting the detaining authority to pass the detention orders on the ground of likelihood of the detenus to come out on bail.
48. At the outset, it is to be stated that in respect of H.C.P.Nos.380 and 617 of 2012, the detenus have already been granted bail in all the adverse cases and ground case. However, the Detaining Authority has arrived at the conclusion that in the event of allowing the detenus at large, they are likely to indulge in prejudicial activities, which will be detrimental and prejudicial to the maintenance of public order. In order to arrive at such subjective satisfaction, there is absolutely no material available on record in these cases.
49. It is pertinent to note that in respect of H.C.P.No.380 of 2012, the Detaining Authority has clearly and categorically stated that he is aware that the detenu was released in all the cases and if he is allowed to remain at large, in view of past conduct of aiding and abetting the land grabbing, he would indulge in such activities in future, which would be prejudicial to the maintenance of public order. It is relevant to note that the detention order against the said detenu was passed on 28.01.2012 and the detenu was lastly released on bail in respect of ground case on 01.11.2011 in Crl.O.P.No.25678 of 2011 by this Court and during the intermittent period, he has not involved in any offence nor implicated in any case.
50. In respect of H.C.P.No.617 of 2012, the Detaining Authority has specifically stated in paragraph 5 that the detenu was released on bail in all the cases and if he is allowed to remain at large, in view of the past conduct of aiding and abetting the offence of land grabbing, he will indulge in such activities in future also, which would be prejudicial to the maintenance of public order. Here again, there is absolutely no material available on record to arrive at the subjective satisfaction that if the said detenu would be allowed to be at large, he would indulge in such activities in future, which would be prejudicial to the maintenance of public order. It is pertinent to note that the detention order was passed against the said detenu on 28.02.2012 and he was released on bail in respect of ground case on 16.09.2011 in Crl.O.P.No.21766 of 2011 by this Court and thereafter, during the intermittent period from his release till passing of detention order, he has not been implicated in any other offence/case for a period of about five months. Therefore, there is absolutely no compelling necessity for the Detaining Authority warranting him to pass the detention order.
51. As far as H.C.P.No.1406 of 2012 is concerned, it is relevant to note that the Detaining Authority has made a specific statement in paragraph 5 of the grounds of detention as hereunder :
"5. I am aware that Thiru.Veerapandi S.Arumugam is in remand in Salem City Pallapatty Police Station Crime No.711 of 2011 under Sections 120-B IPC r/w 147, 148, 447, 448, 341, 294(b), 395, 307, 436, 506 (ii), 109 IPC and under Section 3(1) of T.N.P.P. (D&L) Act, 1994 and he has moved the bail application in C.M.P.No.2289 of 2012 before the Sessions Court, Salem, and the same was dismissed on 08.06.2012 and further, he has filed bail application before the Honourable High Court, Madras in Criminal Original Petition Number 13811 of 2012 on 11.06.2012 and the said petition is heard on 13.06.2012 and adjourned to 19.06.2012. In the meanwhile, the Inspector of Police, Pallapatty Police Station has filed a petition in C.M.P.No.3410 of 2012 before the Judicial Magistrate No.II, Salem, praying for a custody of Thiru.Veerapandi S.Arumugam for 3 days for further interrogation but the learned Magistrate dismissed the said petition on 16.06.2012. Further, his remand period is extended till 29.06.2012 and lodged in Central Prison, Vellore. I am aware that Thiru.Veerapandi S.Arumugam is likely to come out on bail in this case and I arrive at such conclusion, since the Honourable High Court, Madras has granted anticipatory bail in Salem City Central Crime Branch Crime Number 32 of 2011 under Sections 147, 148, 447, 109, 386, 467, 506 (ii) IPC and Section 3(1) of TNPP (D & L) Act, 1994 and granted bail in Salem City Central Crime Branch Crime Number 35 of 2011 under Sections 147, 447, 506 (i), 386 & 387 IPC and Salem City Central Crime Branch Crime No.41 of 2011 under Sections 147, 148, 447, 386, 387, 307 506 (i) IPC and Section 3(1) of TNPP (D & L) Act, 1994 which involved similar offences to Thiru.Veerapandi S.Arumugam, it is likely that he may come out on bail in this case also. So, if he comes out on bail in Pallapatty Police Station Crime No.711 of 2012 and if he is allowed to remain at large, in view of the past conduct of aiding and abetting for land grabbing, a "Reasonable Prognosis" exists that Thiru Veerapandi S.Arumugam will indulge in such activities in future also, which will be prejudicial to the maintenance of public order. Further, the recourse to normal criminal law will not have the desired effect of preventing him effectively from indulging in such activities, which are prejudicial to the maintenance of public order."
A reading of the above statement made by the Detaining Authority would make it abundantly clear that the Detaining Authority is well aware about the offence alleged against the detenu in Crime No.711 of 2011 as well as in other crime numbers. It is pertinent to note that the Detaining Authority has placed reliance on the granting of anticipatory bail and bail to the said detenu in respect of the case registered in Crime Nos.32/2011, 35/2011 and 41/2011 and the said cases have been registered for the alleged offences under Sections 147, 148, 447, 109, 386, 467 and 506 (ii) IPC and under Section 3(1) of Tamil Nadu Public Properties (Damage and Loss) Act, 1994 in Crime No.32/2011, apart from Sections 387, 307 and 506 (i) IPC in other crime numbers. In none of the said cases, serious offence of dacoity, punishable under Section 395 IPC was alleged against the detenu as alleged in the ground case in Crime No.711 of 2011.
52. As a matter of fact, the detenu had filed a bail petition in C.M.P.No.2289 of 2012 before the learned Sessions Judge, Salem, in respect of Cr.No.711 of 2011 (ground case) and the same was dismissed on 08.06.2012. Thereafter, the detenu has preferred the Crl.O.P.No.13811 of 2012 on 11.06.2012 before this Court and the said petition was heard by this Court on 13.06.2012 and it was adjourned to 19.06.2012. The said fact shows that this Court was not inclined to grant bail to the detenu immediately during the first hearing itself. It is relevant to state that the offences alleged in the ground case are not same and similar to other cases, wherein, the detenu was granted bail. Therefore, non-consideration of the said vital factor by the Detaining Authority reflects the total non-application of mind of the Detaining Authority. We are constrained to state that without any cogent material available on record, the Detaining Authority arrived at the subjective satisfaction by wrongly placing reliance on the adverse cases, wherein, the offences alleged against the detenu are for lesser offences, which cannot be compared with the offences alleged against him in the ground case in Crime No.711 of 2011, wherein, the detenu was also implicated for the offence of dacoity and as such, the Detaining Authority has passed the detention order in a mechanical and arbitrary fashion, which would certainly vitiate the detention order.
53. At this juncture, it is relevant to refer to the following decisions.
(a) A three-Judge Bench of the Hon'ble Apex Court reported in (2011) 5 SCC 244 (Rekha V. State of T.N.). The Hon'ble Apex Court in the said decision in respect of the very same Tamil Nadu enactment - Act 14 of 1982, held as follows:
10. 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 the 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 of detention cannot sustain the detention order and has to be ignored.
11. 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.
(b) The Hon'ble Apex Court in the subsequent decision reported in (2012) 7 SCC 181 : (2012) 3 MLJ (Crl.) 794 (Huidrom Konungjao Singh V. State of Manipur), after placing reliance on Rekha's case (cited supra) held thus, "10. Therefore, it was not permissible for the detaining authority to rely upon those bail orders and there was no material before the detaining authority on the basis of which the subjective satisfaction could be arrived that the detenu in the instant case was likely to be released on bail and after being released on bail he would indulge in the activities detrimental to the society at large and would cause the problem of public order.
11. On the other hand, Shri R.P. Bhatt, learned Senior Counsel appearing for Union of India and Shri K. Nobin Singh, learned counsel appearing for the State have submitted that it is not necessary that the co-accused in the same offence is enlarged on bail. What is required to be considered by the detaining authority is whether in a similar case i.e. in similar offence, bail has been granted on the basis of which the detenu, in case applies for bail, would be enlarged on bail." (Emphasis Supplied)
12. In Rekha v. State of T.N. ((2011) 5 SCC 244) this Court while dealing with the issue held:
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 court concerned. 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 the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused.
27. 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. Thus, it is evident from the aforesaid judgment that it is not the similar case i.e. involving similar offence. It should be that the co-accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail."
(Emphasis supplied by us)
54. The principles laid down by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the issue involved in these petitions and on that ground also, the impugned detention orders are vitiated and liable to be quashed.
(VI) Whether the acts alleged against the detenus would amount to be prejudicial to the public order or the same only relates to law and order problem warranting the passing of the impugned detention orders ?
55. At the outset, it is to be stated that the detenus have been implicated mostly for the alleged offences relating to land grabbing cases. In respect of H.C.P.No.380 of 2012, the detenu was also implicated for the offence of murder, apart from the cases of land grabbing. At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court reported in 2008 (9) SCC 89 (K.K.Saravana Babu V. State of T.N.) in respect of the very same enactment of Tamil Nadu Act 14 of 1982, wherein also the allegation against the detenu was with regard to land grabbing. In the said decision the Apex Court dealt with the distinction between "public order" and "law and order" and held thus, 15. This Court on several occasions examined the concepts of law and order and public order. Immediately after the Constitution came into force, a Constitution Bench of this Court in Brij Bhushan v. State of Delhi (AIR 1950 SC 129) dealt with a case pertaining to public order. The Court observed that public order may well be paraphrased in the context as public tranquillity.
16. Another celebrated Constitution Bench judgment of this Court is in Romesh Thappar v. State of Madras (AIR 1950 SC 124). In this case, Romesh Thappar, a printer, publisher and editor of a weekly journal in English called Cross Roads, printed and published in Bombay, was detained under the Madras Maintenance of Public Order Act, 1949. The detention order was challenged directly in the Supreme Court of India by filing a writ petition under Article 32 of the Constitution. The allegation was that the detenu circulated documents to disturb the public tranquillity and to create disturbance of public order and tranquillity. The Court observed: (AIR p. 127, para 7) 7. Public order is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established. it must be taken that public safety is used as a part of the wider concept of public order.
17. The distinction between public order and law and order has been carefully defined in a Constitution Bench judgment of this Court in Ram Manohar Lohia (Dr.) v. State of Bihar (AIR 1966 SC 740). In this judgment, Hidayatullah, J. by giving various illustrations clearly defined the public order and law and order. Relevant portion of the judgment reads thus: (AIR pp. 758-59, paras 51-52) 51. Does the expression public order take in every kind of disorder or only some of them? The answer to this serves to distinguish public order from law and order because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
52. It will thus appear that just as public order in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting security of State, law and order also comprehends disorders of less gravity than those affecting public order. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
18. In Arun Ghosh v. State of W.B. ((1970) 1 SCC 98), Hidayatullah, J. again had an occasion to deal with the question of public order and law and order. In this judgment, by giving various illustrations, very serious effort has been made to explain the basic distinction between public order and law and order. The relevant portion reads as under: (SCC pp. 99-100, para 3) 3. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardised because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public tranquillity there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society.
19. .....
20. This Court in Babul Mitra v. State of W.B. ((1973) 1 SCC 393)had an occasion to deal with the question of public order and law and order. The Court observed that the true distinction between the areas of law and order and public order is one of degree and extent of the reach of the act in question upon society. The Court pointed out that the act by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different.
21. In Dipak Bose v. State of W.B. ((1973) 4 SCC 43) a three-Judge Bench of this Court explained the distinction between law and order and public order by giving illustrations. Relevant portion reads as under: (SCC p. 46, para 4) 4. 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. No doubt bombs were said to have been carried by those who are alleged to have committed the two acts stated in the grounds. Possibly that was done to terrify the respective victims and prevent them from offering resistance. But it is not alleged in the grounds that they were exploded to cause terror in the locality so that those living there would be prevented from following their usual avocations of life. The two incidents alleged against the petitioner, thus, pertained to specific individuals, and therefore, related to and fell within the area of law and order. In respect of such acts the drastic provisions of the Act are not contemplated to be resorted to and the ordinary provisions of our penal laws would be sufficient to cope with them.
22. .....
23. This Court in another important case Ashok Kumar v. Delhi Admn. ((1982) 2 SCC 403) clearly spelled out a distinction between law and order and public order. In this case, the Court observed as under: (SCC pp. 409-10, para 13) 13. The true distinction between the areas of public order and law and order lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of law and order and public order is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.
27. Mr Ahmadi, the learned counsel further placed reliance on Binod Singh v. District Magistrate ((1986) 4 SCC 416). In this case, the Court observed as follows: (SCC pp. 420-21, para 7) 7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that. If that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration.
28. In Commr. of Police v. C. Anita ((2004) 7 SCC 467) this Court again examined the issue of public order and law and order and observed thus: (SCC pp. 471-72, para 7) 7. The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression law and order is wider in scope inasmuch as contravention of law always affects order, public order has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of law and order and public order is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting public order from that concerning law and order. The question to ask is:
Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? This question has to be faced in every case on its facts.
29. In R. Kalavathi v. State of T.N. ((2006) 6 SCC 14) this Court while dealing with the case affecting the public order observed that even a single act which has the propensity of affecting the even tempo of life and public tranquillity would be sufficient for detention.
30. Mr Ahmadi, the learned counsel for the detenu placed reliance on T.V.Sravanan v. State ((2006) 2 SCC 664). In this case the Court observed that when the detenu was already in custody, there was no imminent possibility of his being released. In that event it would not be appropriate to pass order of detention against him. This proposition of law also seems to be well settled, but in view of the fact that the detenu succeeded in his threshold submission that the detention order passed against him was arbitrary, illegal and unsustainable because even assuming the allegation in both the cases relied on by the detaining authority are correct then also no case of disturbance of public order is made out.
32. In the instant case, in the grounds of detention, two cases have been enumerated, one of which pertains to the offences punishable under Sections 420, 465, 468 read with Sections 471 and 120-B IPC in Crime No. 70 of 2006. Another case pertains to Crime No. 364 of 2007 registered under Sections 420, 465, 466, 467, 468 read with Sections 471 and 120-B IPC. The facts of these cases have been carefully examined and even assuming the allegations of these cases as true, even then by no stretch of imagination, the offences committed by the detenu can be called prejudicial to public order. The detenu can be dealt with under the ordinary criminal law if it becomes imperative."
In the above said decision also the detenu was implicated in land grabbing cases and he was branded as Slum Grabber as per Section 2(h) of the Act. The Apex Court clearly and categorically held that such implication in land grabbing cases would not amount to an act of causing breach of public order. It is also held by the Hon'ble Apex Court that the same would only amount to law and order problem, for which, ordinary criminal law action and enforcement itself would be sufficient.
56. The said decision of the Hon'ble Apex Court was relied on by a Division Bench of this Court in 2009 3 MLJ (CRL) 524 (Vahida v. State of Tamil Nadu) in respect of the very same enactment viz., Act 14 of 1982, in which also the detenu was implicated in land grabbing case branding the detenu in the said case as Slum Grabber. The Division Bench in the said decision, by placing reliance on the decision of the Apex Court in Saravana Babu's case (cited supra) held as hereunder :
"4. The Supreme Court, while dealing with a case of this nature, which relates to an offence of land grabbing in Saravana Babu v. State of T.N. (2008) 2 TNLJ 243 (Crl), has quashed the order of detention holding that the cases affecting the public order are those which have great potentiality to disturb peace and tranquility of a particular locality; the allegations cannot be called prejudicial to public order; the detenu can be dealt with under the ordinary criminal law, if it becomes imperative.
5. In the present case on hand, both the adverse cases and the ground case are registered under the provisions of Act 14 of 1982 branding the detenu as Slum Grabber. Therefore, in view of the law laid down by the Apex Court as stated supra, it cannot be said that the detenu had acted in a manner prejudicial to the maintenance of public order. Hence, following the ratio laid down by the Apex Court in Saravana Babu v. State of T.N.(supra), we allow this petition thereby quashing the impugned order of detention."
In the light of the principles laid down in the decisions cited supra, we hold that the detenus had not acted in a manner prejudicial to the maintenance of public order.
(VII) Whether it is possible for the Detaining Authority to go through the voluminous booklet containing material documents and to pass the detention order within a short time ?
57. The last but not the least ground raised by the learned Senior Counsels for the detenus is to the effect that the Detaining Authority has not perused or considered the entire materials placed before him. In respect of such contention the learned Senior Counsels submitted that in all the three cases, where the booklets run to several pages viz., 474, 405 and 560 pages respectively, it is practically impossible for the Detaining Authority, who is not a Tamilian, to go through all the documents within a short time. The learned Senior Counsels particularly pointed out that in HCP No.1406 of 2012 the Sponsoring Authority placed the materials before the Detaining Authority on 17.6.2012 i.e., on Sunday requesting to pass the detention order, as could be seen from the affidavit sworn in by the Sponsoring authority, and the impugned detention order was passed on the very next day i.e, on 18.6.2012. Likewise, in HCP No.380 of 2012 and 617 of 2012 the materials were placed before the Detaining Authority on 26.1.2012 & 26.2.2012 respectively and the detention orders were passed on 28.1.2012 & 28.2.2012 respectively. Therefore, the learned Senior Counsels submitted that the Detaining Authority could not have gone through the entire documents in the booklets running to 474, 405, and 560 pages respectively. To substantiate the said contention, the learned Senior Counsels placed reliance on the counter-affidavit filed by the respondents in H.C.P.No.1406 of 2012. It is seen that in the said counter-affidavit in paragraph (Z), the first respondent has stated as hereunder :
"(z) Regarding the averments in Para (z) of the affidavit, it is further submitted that the Detaining Authority is not a Tamilian but he has served in Tamil Nadu Police for more than 23 years. The Detaining authority has joined as a Commissioner of Police, Salem City, on 11.11.2011 and though the adverse cases were registered prior to his tenure, after taking charge as the Commissioner of Police, Salem City, he has reviewed the land grabbing cases every fortnight and sent the report to the Additional Director General of Police, Law and Order, Chennai. So, the Detaining Authority is very much aware of the involvement of the detenu in all the adverse cases. Further, three hencemen of the detenu were already detained by the Detaining Authority based on the said adverse cases and Thiru.Raja was also detained in the ground case in CMP No.32/Goonda/Salem City/2012. Further, the documents relating to the adverse cases shown in the grounds of detention were already leisurely perused by the detaining authority. Thus the detaining authority was able to arrive at subjective satisfaction with due application of mind, regarding the necessity of passing the detention order."
A reading of the above said specific statement made by the first respondent in the counter affidavit makes it abundantly clear that he has not perused the entire materials placed before him in the form of booklet as he has clearly admitted that he was able to arrive at the subjective satisfaction on the basis of the detention order passed in respect of one Raja and the adverse cases referred in the said detention order were already leisurely perused by him. It is not stated by the Detaining Authority that he has perused the records, namely, material documents fully pertaining to these three cases before arriving at the subjective satisfaction regarding the necessity to pass the detention orders. In view of the same, we are of the considered view that the Detaining Authority could not have perused the entire material documents in order to arrive at the subjective satisfaction and the statement made by the Detaining Authority in the counter affidavit, as extracted earlier, reflects the total non-application of mind to the materials available on record, and as such, the impugned detention orders are vitiated even on this ground.
58. In fine, we come to the irresistible conclusion that all the grounds raised by the petitioners/detenus are sustainable and all the three detention orders are vitiated and liable to be set aside. Accordingly, all these Habeas Corpus Petitions are allowed and the detention orders in C.M.P.No.18/SLUM GRABBER/SALEM CITY/2012 dated 28.1.2012; C.M.P.No.21/SLUM GRABBER/SALEM CITY/2012, dated 28.2.2012; and C.M.P.No.33/SLUM GRABBER/SALEM CITY/2012 dated 18.06.2012 are hereby set aside. The petitioner/detenu in H.C.P.No.380 of 2012 and the detenus in H.C.P.Nos.617 and 1406 of 2012 are directed to be set at liberty forthwith, unless their custody is required in connection with any other case. Connected miscellaneous petitions are closed.
gg/vr To
1. The Principal Secretary, Home, Prohibition and Excise Department, Government of Tamil Nadu, Secretariat, Chennai - 600 009.
2. The Commissioner of Police, Salem City Police, Salem.
3. The Superintendent, Central Prison, Salem - 7.
4. The Superintendent, Central Prison, Vellore.
5. The Public Prosecutor, Madras High Court, Chennai 600 104