Madras High Court
Prasanthi vs The Secretary on 15 December, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.12.2014 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN Writ Petition No.34921 of 2013 Prasanthi .. Petitioner Vs. The Secretary Public Department (SC) Government of Tamil Nadu Fort St. George, Chennai 600 009. .. Respondent ----- Petition under Article 226 of the Constitution of India praying for a writ of Mandamus directing the respondent to release the husband of the petitioner T.Maheswaran from the Special Camp, Poonamallee. ----- For Petitioner : Mr.T.Kalaimani For Respondent : Mr.P.H.Arvind Pandian, Addl.A.G. Assisted by Mr.P.Sanjay Gandhi, Addl.G.P. ----- O R D E R
The petitioner has come up with the above writ petition seeking the issue of a writ of Mandamus to direct the respondent to release her husband from the Special Camp for foreigners.
2. Heard Mr.T.Kalaimani, learned counsel for the petitioner and Mr.P.H.Arvind Pandian, learned Additional Advocate General for the respondent.
3. The petitioner and her husband hold Sri Lankan passports. It appears that both of them left Sri Lanka in the midst of the civil war and came to Chennai and stayed in the address given in the writ petition. According to the petitioner, her husband used to visit the Special Camp at Poonamallee for Sri Lankans, to treat a person by name Suresh Kumar, who was a detenue in the camp and who was a paraplegic. According to the petitioner, her husband was detained on 17.12.2012 within two months after marriage.
4. It appears that the petitioner's husband and his patient Suresh Kumar, both filed a writ petition in W.P.No.15606 of 2013, when they were about to be transferred to the Special Camp at Trichy. The writ petition was disposed of, directing the respondent to pass orders on the representation of the petitioner, on merits. However, the representation was rejected by order dated 28.10.2013. Therefore, the petitioner has come up with the above writ petition.
5. The respondent has filed a counter affidavit contending that on 19.12.2012 and 30.8.2013, six Sri Lankan Tamils, who were LTTE cadre, were arrested by the Q-Branch Police, CID, Chennai, in connection with Crime No.3 of 2012 for alleged offences under Section 120-B, IPC read with Section 5 of the Explosive Substances Act, 1908 and Section 10(a)(i) and (iv) and 10(b) of the Unlawful Activities (Prevention) Act, 1967. According to the respondent, one of those six persons was a Diploma Holder in Electronics and that during the bombing by the Sri Lankan Armed Forces, he became immobilised and bedridden. The petitioner's husband is stated to have completed a 4 year Degree Course in Medicine and was a Medical Practitioner. It is claimed by the respondent that the petitioner's husband was in charge of the Medical Wing of LTTE. The respondent claims that those six persons apprehended by the police, had hatched a conspiracy to get trained in the preparation of Improvised Explosive Devices in India, with a view to go to Sri Lanka and wage a war. Since LTTE, to which the petitioner's husband belongs, has been declared a Terrorist Organisation vide Sl.No.21 of the Schedule to the Unlawful Activities (Prevention) Act, 1967, the Government passed orders under Section 3(2)(e) of the Foreigners Act, 1946, to lodge all those six persons, including the petitioner's husband, in the Poonamallee Special Camp. In pursuance of the said order, four out of those six persons have already been detained in the Special Camp. The other two persons are still in Central Prison.
6. Thus it is seen from the counter affidavit that the petitioner's husband is detained in a Special Camp under the Foreigners Act, 1946. A Division Bench of this Court has held in Kalavathy v. State of Tamil Nadu [1995 (2) LW (Crl.) 690] that the detention in a Special Camp under Section 3(2)(e) of the Foreigners Act was not actually a confinement. However, another Division Bench in Yogeswari v. State of Tamil Nadu [2003 (1) LW (Crl.) 352] took a view that the placement of a person in Special Camp would tantamount to preventive detention. The conflict between Kalavathy and Yogeswari were resolved by a Full Bench in Sree Latha v. Secretary to Government [2007 (2) MLJ (Crl.) 1320]. The Full Bench held that the placement in a Special Camp does not amount to preventive detention. In G. Karunairaj vs. State (W.P No.27221 of 2011 decided on 29-2-2012), I had an occasion to consider the validity of such a retention in a special camp and held that the detainee is entitled to be heard. But unfortunately, the decision was reversed by the Division Bench of this court. Therefore, the petitioner cannot challenge the placement of her husband in a Special Camp, as though it is one of preventive detention.
7. However, the placement of a person in a Special Camp for foreigners is not for an indefinite duration of time. The petitioner has raised two points, namely (i) that the Sri Lankan Government has issued an ultimatum for persons who had gone out of Sri Lanka to come back and claim their properties within a time stipulated, and (ii) if they do not redeem their properties in Sri Lanka, as mandated by the Government of Sri Lanka, they would lose the property once and for all. Therefore, the petitioner states that she wants to go to Sri Lanka. She cannot go without her husband. It is also stated by the petitioner that persons who have been acquitted of the criminal cases filed against them, have already been released from the Special Camp. Therefore, the petitioner seeks the release of her husband.
8. In the counter affidavit, the respondent has admitted the fact that several other persons, who were placed in the Special Camp, have been released. In paragraph 15.IV of the counter affidavit, this fact is admitted. But, the respondent claims that the same privilege cannot be granted to the petitioner's husband, as he was a Member of the LTTE.
9. But, I fail to understand as to why there should be such a discrimination. According to the claims of the Sri Lankan Government, LTTE has been wiped out. Therefore, there need not be a discrimination, especially when the petitioner wants to go back to Sri Lanka.
10. Insofar as the first contention is concerned, it appears that the final report in the criminal complaint in Crime No.3 of 2012 has been filed only very recently. The Court has not even taken cognizance and framed charges. The allegations which formed the basis of the criminal complaint also appear to be something interesting. The allegations which were investigated and in respect of which a final report is said to have been filed, are summarised in paragraph 4 of the counter affidavit of the respondent, which reads as follows:
"7. It is respectfully submitted that enquiry further revealed that they were trained in handling of arms and ammunition and participated in the war between LTTE and Sri Lankan Armed Forces. During May 2009, LTTE faced huge set back in the civil war and almost got eliminated in Sri Lanka. These accused hatched a conspiracy to wreak vengeance against the Sri Lankan Government and to make the Sri Lankan Government to realise that LTTE is still in existence. They planned to do some kind of sabotage and decided to plant a bomb. Since making a bomb and transporting it to Sri Lanka from India is highly impossible, they planned to train themselves in the preparation of IEDs (Improvised Explosive Devices) in theory as well as in practical field in India and then to go to Sri Lanka, prepare and blast IEDs (Improvised Explosive Devices) in Sri Lanka. They decided to undergo training in the blasting of IEDs (Improvised Explosive Devices) through electronic circuits. They took a house on rent at No.13/7, 7th Cross Lane, 7th Street, Anna Nagar, Pammal, Chennai and were used to learn and train themselves in the preparation of electronic circuits, devices, etc. through internet and also through their knowledge gained during their training in LTTE."
11. In the light of the above, I do not know why the petitioner's husband should still be retained in the Special Camp. The entire allegation revolves around the alleged preparations made by the petitioner's husband and others, to launch an attack in Sri Lanka. The respondent has come to this conclusion, on the basis of electronic materials, such as laptop, GPRS Modem, Micro chips, Micro chip demo board, Electronic testing device, USB cable, etc. as seen from paragraph 8 of the counter affidavit. All these items will be found in any normal household today. I do not know how the presence of these items would indicate a mindset, culpable of committing the offence alleged.
12. Therefore, the writ petition is disposed of, directing the respondent to re-consider the matter as to whether the continued retention of the petitioner's husband in the Special Camp is necessary at all, especially when the petitioner wants to go back to Sri Lanka to settle affairs, in response to the call made by the Government of Sri Lanka. The respondent shall re-consider the matter and pass orders within a period of two weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.1 of 2013 is closed.
Index : Yes/No 15.12.2014. Internet : Yes/No kpl To The Secretary Public Department (SC) Government of Tamil Nadu Fort St. George Chennai 600 009. V.RAMASUBRAMANIAN,J. kpl W.P.No.34921 of 2013. 15.12.2014. Writ Petition No.34921 of 2013 V.RAMASUBRAMANIAN,J.
The writ petition was disposed of by an order dated 15.12.2014, directing the respondent to re-consider the matter as to whether the continued retention of the petitioner's husband in the Special Camp is necessary at all. This order was passed under the impression that the petitioner wanted to go back to Sri Lanka.
2. However, pointing out that the intention of the petitioner was not to go back to Sri Lanka, the learned counsel for the petitioner made a mention and brought the case for being mentioned.
3. Heard Mr.T.Kalaimani, learned counsel for the petitioner and Mr.P.H.Arvindh Pandian, learned Additional Advocate General.
4. The petitioner's husband has filed an affidavit. It is stated in the affidavit that he came to India with a valid Sri Lankan Passport and a visa issued by the Indian Consulate. He also registered himself with the Neelankarai Police in No.275/2009 dated 11.12.2009 and subsequently, at Shankar Nagar Police Station, within whose jurisdiction his residence is located. Thereafter, the petitioner's husband sought refugee status at UNHCR in Malaysia. Since it did not come through, the petitioner's husband came back to India.
5. The petitioner's husband was arrested in connection with Crime No.3 of 2012 and a charge sheet was also filed. He has spent about 2 years in Special Camp and 111 days in Puzhal Prison.
6. According to the petitioner's husband, his father-in-law is living as a refugee in U.K. But, his mother-in-law wants to go back to Sri Lanka to claim their properties. Since the petitioner's husband claimed refugee status, he cannot now go back to Sri Lanka. If his mother-in-law, who is staying with the petitioner, goes back to Sri Lanka, the petitioner will be left alone and therefore, the petitioner sought the release of her husband from Special Camp. In such circumstances, the order passed by me under the impression that the petitioner may go back to Sri Lanka requires modification.
7. In paragraph 6 of the affidavit filed now, the petitioner's husband has claimed that his life will be in danger if he returns to Sri Lanka. Therefore, it is not safe to send the petitioner's husband back to Sri Lanka.
8. In paragraph 7 of the affidavit, the petitioner's husband has stated as follows:
"I declare that in the event of my release form the Special Camp I would stay at my present Chennai address or at a new one which would be duly informed to authorities whenever happens and be available for the trial, if any, in respect of the pending case in Cr.No.3/2012 on the file of Judicial Magistrate, Tambaram."
9. The petitioner's husband has also undertaken not to indulge in any activities prejudicial to the sovereignty and integrity of India.
10. Therefore, the order dated 15.12.2014 is modified to the effect that the last portion of paragraph 9 as though the petitioner wants to go to Sri Lanka shall stand deleted. Even in the operative portion of the order at paragraph 12, the portion which contains a reference to the petitioner willing to go back to Sri Lanka shall stand deleted.
11. However, the final direction in paragraph 12 directing the respondent to re-consider the matter with reference to the continued retention of the petitioner's husband and to pass orders shall remain as such. The respondent may consider the matter on compassionate grounds and pass orders within two weeks from the date of receipt of a copy of this order.
19.01.2015.
kpl V.RAMASUBRAMANIAN,J.
kpl W.P.No.34921 of 2013.
19.01.2015.