Madras High Court
Theertham vs The Secretary on 4 July, 2013
Bench: S.Rajeswaran, T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.07.2013
CORAM
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
and
THE HONOURABLE MR.JUSTICE T.MATHIVANAN
H.C.P.(MD)Nos.1533 of 2012, 1543, 1544 of 2012 and
2, 3, 4, 5, 8, 9 and 36 of 2013
Theertham .. Petitioner in
H.C.P.(MD) No.1533 of 2012
Sivanammal .. Petitioner in
H.C.P.(MD) No.1543 of 2012
Pandiyammal .. Petitioner in
H.C.P.(MD) No.1544 of 2012
Chandrasekar .. Petitioner in
H.C.P.(MD) No.2 of 2013
C.Arasan .. Petitioner in
H.C.P.(MD) No.3 of 2013
Seethalakshmi .. Petitioner in
H.C.P.(MD) No.4 of 2013
Mohanraj .. Petitioner in
H.C.P.(MD) No.5 of 2013
Muthusamy .. Petitioner in
H.C.P.(MD) No.8 of 2013
Natarajan .. Petitioner in
H.C.P.(MD) No.9 of 2013
B.Pechiammal .. Petitioner in
H.C.P.(MD) No.36 of 2013
Vs.
1.The Secretary, Government of India,
Ministry of Home Affairs,
Department of Internal Security,
North Block, New Delhi ? 110 001.
2.The State of Tamil Nadu,
Represented by its Secretary to Government,
Home, Prohibition & Excise (XVI) Department,
Government of Tamil Nadu,
Fort St. George, Chennai ? 9.
3.The District Collector and District Magistrate,
Madurai District, Madurai.
4.The Superintendent of Prison,
Bostal School,
Pudukkottai District, Pudukkottai.
5.The Inspector of Police,
Avaniyapuram Police Station,
Madurai. .. Respondents in
H.C.P.(MD) Nos.1533,
1543 and 1544 of 2012
1.State of Tamil Nadu,
Rep. by its Secretary,
Department of Public (law & Order ? F),
Fort St. George, Chennai ? 9.
2.The District Collector & District Magistrate,
Madurai District, Madurai.
3.The Government of India,
Rep. by its Secretary,
Ministry of Home Affairs,
Department of Internal Security,
North Block, New Delhi ? 1. .. Respondents in
H.C.P.(MD) Nos.2, 3, 4, 5,
8, 9 of 2013
1.The Secretary to the Government of India,
Ministry of Home Affairs,
Departmental of Internal Security,
North Taluk, New Delhi ? 110 001.
2.The Secretary to the Government,
Public (Law and Order ? F) Department,
Secretariat, St. Fort George, Chennai ? 9.
3.The District Collector and District Magistrate,
Madurai District, Madurai. .. Respondents in
H.C.P.(MD) No.36 of 2013
Common Prayer: Petitions filed under Article 226 of the Constitution of
India, praying to issue a Writ of Habeas Corpus to call for the entire
records from the District Collector and District Magistrate, Madurai District
Madurai in N.S.A.D.O.No.08, 09, 07 and 10/2012 dated 03.12.2012 and in
N.S.A.D.O.No.06, 01, 03, 05, 04, 02/2012 dated 30.11.2012, 29.11.2012,
29.11.2012, 30.11.2012, 29.11.2012 and to quash the same and to direct
respondents to produce the detenues Sonaia S/o. Rajangam, Nagaraj @ Soppu
S/o. Pandi, Chandra Sekar @ Moolakkarai S/o. Chinna Durai and Muthukaruppan
@ Vellakurathan, aged about 20 years now confined at Pudukkottai Borstal
School, Pudukkottai and detenues Karthick @ Kili Karthick, aged about 25
years, Ramar @ Ramakrishnan S/o. Arasa Maharaja, Vicky @ Vignesh
S/o.Thirugnanam aged 22 about years, Manikandan @ Bunk Mani, aged 26 years,
Muthuviji @ Oomai S/o.Muthusamy, aged about 22 years, Mohan S/o. Natarajan,
aged about 27 years respectively, now confined at Central Prison, Salem
before this Hon'ble Court and set them at liberty forthwith.
!For petitioners in H.C.P.(MD) No.
1533, 1543 and 1544/2012 : Mr.S.M.A.Jinnah
For petitioners in H.C.P.(MD) No.
2, 3, 4, 5, 8 and 9/2013 : Mr.T.Senthil Kumaran
For 1st respondent in H.C.P.
No. 1533/2012 : Mr.S.R.Neelakantan
Central Government Standing Counsel
^For 1st respondent in H.C.P.
No. 1543/2012 :Mr.S.R.A.Ramachandran
Central Government Standing Counsel
For 1st respondent in H.C.P.
No. 1544/2012 : Mr.N.S.Ponniah
Central Government Senior Standing Counsel
For 1st respondent in H.C.P.
No.36/2013 : Mr.S.Arun Kumar
Central Government Standing Counsel
For respondents 2 to 5 in
H.C.P.(MD) Nos.1533, 1543 and 1544/2012
and respondents 1 and 2 in
H.C.P.(MD) Nos.2, 3, 4, 5, 8 and 9/2013
and respondents 2 and 3 in
H.C.P.(MD) No.36 of 2013 : Mr.S.Shanmuga Velayutham
Public Prosecutor
for Mr.A.Ramar, APP
For 3rd respondent : Mr.P.Krishnasamy
in H.C.P.No. 2/2013 Central Government Senior Panel Counsel
For 3rd respondent : Mr.Fernandas Rathina Raja
in H.C.P. No.3/2013 Central Government Standing Counsel
For 3rd respondent : Mr.V.N.R.Neethirajaram
in H.C.P. No.4/2013 Central Government Standing Counsel
For 3rd respondent : : Mr.K.Ayyanar
in H.C.P. No.5/2013 Central Government Standing Counsel
For 3rd respondent : Mr.A.Akbar Basha
in H.C.P. No.8/2013 Central Government Standing Counsel
For 3rd respondent : Mr.V.Durai Pandian
in H.C.P. No. 9/2013 Central Government Standing Counsel
:COMMON ORDER
(Order of the Court was made by S.RAJESWARAN, J.) Since the issues involved in all these cases are similar and the orders of detention have been passed under National Security Act, 1980, a common order is being passed to dispose of all these Habeas Corpus Petitions.
2. Challenge is made in all these petitions to the orders of detention passed by the District Collector and District Magistrate, Madurai District, Madurai vide Proceedings N.S.A.D.O.Nos.08, 09, 07 and 10/2012 dated 03.12.2012 and N.S.A.D.O.No.06, 01, 03, 05, 04, 02/2012 dated 30.11.2012, 29.11.2012, 29.11.2012, 30.11.2012, 29.11.2012, whereby Sonaia S/o. Rajangam, Nagaraj @ Soppu S/o. Pandi, Chandra Sekar @ Moolakkarai S/o. Chinna Durai and Muthukaruppan @ Vellakurathan, all aged about 20 years, Karthick @ Kili Karthick, aged about 25 years, Ramar @ Ramakrishnan S/o. Arasa Maharaja, Vicky @ Vignesh S/o.Thirugnanam aged 22 about years, Manikandan @ Bunk Mani, aged 26 years, Muthuviji @ Oomai S/o.Muthusamy, aged about 22 years, Mohan S/o. Natarajan, aged about 27 years respectively were ordered to be detained under the provisions of the National Security Act, 1980 (Central Act 65 of 1980).
3. The learned counsel appearing for the petitioners in H.C.P.(MD) Nos.2, 3, 4, 5, 8 and 9 of 2013 primarily contended that invoking the provisions of National Security Act, 1980 (hereinafter referred as Act 65 of 1980) and passing orders of detention against the petitioners under that Act is a clear violation of Section 17 of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) hereinafter referred to as Act 14 of 1982. National Security Act was promulgated in the year 1980, but the Act 14 of 1982 was promulgated in the year 1982. He particularly refers to Section 17 of the Act 14 of 1982 to reiterate that Act 14 of 1982 was brought in to pass detention order specifically on the ground of preventing any one from acting in any manner prejudicial to the maintenance of public order. After this enactment, i.e. Act 14 of 1982 passing an order under the National Security Act, promulgated in the year 1980 on the same ground that a person has been indulging in activities which are prejudicial to the maintenance of public peace and public order, can never be sustained at all. Therefore, according to him, Section 17 of Act 14 of 1982 is a clear bar to invoke the provisions of Section 3(2) of National Security Act. Further, according to him, the classes of people known as anti-social elements could very well be brought under the Act 14 of 1982, without resorting to the National Security Act, 1980. Therefore, he adds that after the promulgation of Act 14 of 1982, if a person is found to be indulging in activities which are prejudicial to the maintenance of public order, the only course open to the authority is to invoke Act 14 of 1982 and not the National Security Act, 1980.
4. The learned counsel further refers to the statement of objects and reasons of Act 14 of 1982, wherein in paragraph 5 it has been reiterated that in order to ensure that the maintenance of public order in this state is not adversely affected by the activities of these five classes of known anti- social elements and to provide for preventive detention of the persons indulging in the dangerous activities without resorting to the National Security Act, 1980, the Act 14 of 1982 was promulgated. Therefore, according to him, passing the orders of detention under the National Security Act, 1980 is totally in contravention to the statement of objects and reasons found in Tamil Nadu Act, 1982. Therefore, according to him on this ground the impugned order is liable to be set aside.
5. Secondly, he submitted that in paragraph 5 of the detention order passed the detaining authority, reference has been made to similar cases in which bails have been granted to an another accused in order to arrive at the subjective satisfaction that the detenues in these cases also would get bail and come out and indulge in such activities which are prejudicial to the maintenance of public order. But particulars of those similar cases have not been furnished to the detenu, thereby preventing the detenues from making an effective representation. This would vitiate the order of detention, he adds.
6.Thirdly, the learned counsel appearing for the petitioners would submit that the impugned order of detention is liable to be set aside on the ground of delay in considering the representation made by the detenues. According to him, the representations made have been received by the Government on 19.12.2012 and remarks have been called for from the detaining authority on the next day ie. on 20.12.2012. But, the same was received only on 18.01.2013, after a delay of twentynine days and this long delay remains unexplained. The unexplained long delay in considering the representation of the detenu vitiates the detention order. In support of this submission, the learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in Rajammal vs. State of Tamil Nadu, reported in (1999) 1 SCC 417.
7. The learned counsel appearing for the petitioners in the other Habeas Corpus Petitions, while adopting the above arguments put forth by the learned counsel appearing for petitioners in H.C.P.(MD) Nos.2, 3, 4, 5, 8 and 9 of 2013, would add that there is a delay in considering the representation sent in each of their cases which remains unexplained. Therefore those orders of detention are also vitiated warranting interference by this Court.
8. Thus, all the petitioners pray for setting aside the orders of detention passed against the respective detenues on the aforesaid grounds.
9. Per contra, the learned Public Prosecutor would submit that the reliance placed on by the learned counsel for the petitioners on the statement of objects and reasons of Tamil Nadu Act 14 of 1982 would not be helpful to the petitioners as they are only the guiding principles with no statutory value and therefore that would not prevail upon the provisions of the Act which are clear categorical and unambiguous. He refers to Section 17 of the Tamil Nadu Act, 1982, and submits that under Section 17 of Act 14 of 1982 categorization of the offenders has been clearly made therein and only against those category/classes of persons enumerated under Section 17 of Act 14 of 1982, detention order could be passed by the State Government or any of its officers. Therefore, as against these classes of persons speltout in Section 17 of the Act 14 of 1982, the State shall not invoke the provisions of National Security Act, 1980. In this case, the order has been passed against the persons who are indeed indulging in activities which are prejudicial to the maintenance of public order, but according to him, this type of category has not been included/categorised under Section 17 of the Tamil Nadu Act 14 of 1982. Therefore, the order of detention has been rightly passed against these persons/detenues herein under Sub Section (2) of Section (3) of the National Security Act, 1980. He refers to Section 3(2) of the National Security Act, 1982 and contends that the impugned order passed by the State Government is in order and cannot be found fault with and there is no illegality nor infirmity in the same warranting interference by this Court.
10. Thus according to him, as per Section 17 of Act 14 of 1982, State Government or any or its officers under the said Act shall pass orders of detention under the National Security Act in respect of Bootlegger, Drug Offender, Forest Offender, Goonda, Immoral Traffic Offender, Sand Offender, Slum-grabber and Video Pirate. It has been made clear by him that only against these enumerated category of persons, provisions of Act 14 of 1982 can be invoked and certainly not the provisions of National Security Act, 1980. He adds that such of those persons who are not covered under this provision, i.e. Section 17 of the Act 14 of 1982 the provisions of National Security Act would certainly apply. Therefore, as the detenues/the petitioners herein do not come under the classes of persons categorised under Section 17 of the Act 14 of 1982, the State Government in their wisdom though fit to pass the orders of detention invoking the provisions of National Security Act, 1980. Hence, he adds that the contention of the learned counsel appearing for the petitioners that the order passed under National Security Act is liable to be set aside in view of the bar under Section 17 of the Tamil Nadu Act 14 of 1982 cannot hold water and it can never be sustained both in law and on fact.
11. In reply to the submission that similar case particulars have not been furnished to the detenues even though the same have been referred to in the orders of detention, could not assert that similar case particulars were furnished to the detenues, even though there was a mention in the order of detention. Even before this Court, the learned Public Prosecutor could not establish that similar case particulars were furnished to the detenues as required under law. If that be so, the contention that the detenu was deprived of making an effective representation is established.
12. So also, with regard to the reported delay in considering the representation, it is evident from the proforma produced on the side of the State Government that there is abnormal delay in considering the representation which remains unexplained and that would certainly be put against the State Government. The learned Public Prosecutor could not give any satisfactory explanation for the huge delay.
13. We have heard the learned counsel appearing for the petitioners, the learned Public Prosecutor for the State and the learned Central Government Standing Counsel for the Central Government. We have also gone through the materials available on record including the counters filed on the side of the State Government and the Central Government.
14. For better appreciation of fact and law, we would like to refer to Section 17 of the Act 14 of 1982, which reads as follows:
?17. Detention orders against any bootlegger, drug-offender, forest- offender, goonda, immoral traffic offender, or slum grabbers and video pirates to be made under this Act and no under National Security Act. - On and after the commencement of this Act, no order of detention under the National Security Act, 1980 (Central Act 65 of 1980) shall be made by the State Government or any of their officers under that Act in respect of any bootlegger, drug-offender, forest-offender, goonda, immoral traffic offender, slum-grabber and video pirates in the State of Tamil Nadu, on the ground of preventing him from acting in any manner prejudicial to the maintenance of public order, where an order of detention may be or can be made against such person, under this Act.
NOTES Before enactment of Tamil Nadu Act 14 of 1982, the State Government made preventive detention under the National Security Act, 1980. By virtue of section 17, the State authorities can make detention order against the bootlegger, drug-offender, forest-offender, goonda, immoral traffic offender, or slum-grabbers and video pirates only under this Act. The State Government can not invoke the provisions of National Security Act, 1980 against the above mentioned persons for the preventive detention.?
15.Further, in order to appreciate the contention put by the learned Public Prosecutor, we are inclined to extract Section 3 of National Security Act.
"3. Power to make orders detaining certain persons. - (1) The Central Government or the State Government may, -
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or
(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, (2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained."
16. As rightly pointed out by the learned Public Prosecutor we are unable to sustain the contention put forward by the learned counsel appearing for the petitioners that Act 14 of 1982 has been promulgated with a view to restrict passing of orders under National Security Act, 1980, The reading of the above provision would make it clear that Act 14 of 1982 was promulgated specifically to pass orders of detention against those persons, who have been categorized/classified under section 17 of the Tamil Nadu Act 14 of 1982. Further there were a few amendments under which some other category of people were also included. In fact, an amendment to Section 17 of Act 14 of 1982 was brought by Act 32 of 2004, to substitute for the expression "immoral traffic offender or slum - grabber" the expression "immoral traffic offender, slum- grabber or video pirate". So also, by way of another subsequent amendment, i.e. Act 16 of 2006, for the expression "slum-grabber", the expression "sand
- offender", "slum grabbers" was substituted. These amendments expand the definition of Slum Grabbers and Immoral Traffic Offender. Thus it would only establish and reiterate the fact, that the Act 14 of 1982 could be invoked only against such of those offenders who have been categorized under Section 17 and not to others. For others, who do not fall under this category, the provision of National Security Act will have to be invoked in order to maintain the public order.
17. Needless to add that the purpose of both the Acts is to prevent a person from indulging in any activities enumerated in the Act. Preventive detention is not a punitive one and it is also not an alternative to criminal trial under the law. Only in cases where it would be difficult to check the activities of the detenue, the order of detention is passed. The basic object of preventive detention is to prevent a person from indulging in such activities, which are prejudicial to the maintenance public order and it involves detaining a person without trial. In this case, the State Government in their wisdom found that the persons mentioned in these cases, were found indulging in activities which are prejudicial to maintenance of Public Peace and public order and at the same time, they could not be brought under the special category of persons enumerated under Section 17 of Act 14 of 1982. Hence, the authorities invoked Sub-Section (2) of Section 3 of the National Security Act, 1980 to pass the orders of detention against the detenues in these cases.
18. Admittedly, Section 3(1)(a) of the National Security Act, 1980 would not be applicable to the case on hand and only Sub Section (2) of Section 3 of the National Security Act, 1980 is directly applicable under Section 3(@) of National Security Act, 1980, three grounds have been mentioned for passing an order of detention by the Government. The first ground is preventing him from acting in any manner prejudicial to the security of the State. The second ground would be from acting in any manner prejudicial to the maintenance of public order and the third ground would be from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. Therefore, by the second category of this provision, the State Government is empowered to invoke the provisions of National Security Act, 1980, if they are satisfied that a person is indulging in activities prejudicial to the maintenance of public order. Accordingly, in the case in hand, orders of detention have been passed invoking the provisions of the National Security Act.
19. In the light of the above facts and law we find force in the submissions made by the learned Public Prosecutor that it was for the state to invoke the powers under Sub-Section (2) of Section 3 of the National Security Act 1980 against the persons who have not been classified/categorized under Section 17 of the Act 14 of 1982. A reading of the order of detention would also show that all these persons have been shown as persons indulging in activities which are prejudicial to the public peace and public order and therefore they are antisocial elements and but would not come under the category of Section 17 of Act 14 of 1982. Therefore, we are of the considered opinion that the orders of detention passed against these detenues herein are in order and there is no illegality nor infirmity in the orders passed invoking the provisions of the National Security Act, 1980.
17. However, we find some force in the contention of the learned counsel appearing for the petitioners that no similar cases particulars have been furnished in the orders of detention, while referring to the cases of accused in other cases where bail was granted by the Courts. Merely referring to the cases of other persons where bail were granted would not be sufficient. The other particulars of the cases should also be furnished to enable the detenues to examine them and make an effective representation. Admittedly, in this case no similar cases particulars have been furnished to the detenu, thereby causing prejudice to the detenues. Therefore, on this ground the impugned order is liable to be set aside.
18. In this connection, it is useful to refer to the decision of the Division Bench judgment of this Court reported in 2011 (5) CTC 744, S.Valarmathi Vs. The Union Secretary to Government of India, wherein it is held as follows:-
?6.The learned counsel for the petitioner has drawn the attention of this Court to paragraph 7 of the grounds of detention and submitted that the detenu, apart from the ground case, was also arrested in connection with two adverse cases and the bail applications filed by him in those cases were dismissed by the Court of Judicial Magistrate as well as by the District Sessions Court at Thanjavur and that it has been further stated in paragraph:7 of the grounds of detention that the Detaining Authority was also aware that there is a real possibility of the detenu coming out on bail by filing bail application for the above said case. It is the submission of the learned counsel for the petitioner that the Detaining Authority has also placed reliance upon bails being granted in similar cases and in respect of those similar cases, no material whatsoever has been furnished to the detenu and therefore, it caused prejudice to him and thereby preventing him from making an effective representation for the revocation of the detention order.
7.On the above said submission, the Court heard the submission of Mr.Maharaja, learned Additional Public Prosecutor appearing for the respondents 2 to 4 also.
8.A perusal of paragraph 7 of the grounds of detention would disclose that the Detaining Authority has placed reliance upon the bail orders being granted for similar cases. A perusal of the booklet would disclose that the materials in respect of similar cases have not been furnished to the detenu and consequently, the detenue has been put to prejudice and he is deprived of making an effective representation for revocation of the order of detention.
Hence, on the said ground, the order of detention is vitiated and liable to be quashed.?
19. As regards the third limb of the argument regarding the delay in considering the representation, as per the proforma submitted by the learned Public Prosecutor, on the representation of the detenu, which was received by the Government on 19.12.2012, remarks have been called for from the detaining authority and the same was received only on 18.01.2013 and thereafter the representation has been rejected on 04.02.2013. From the above, it is clear that in between 19.12.2012 and 18.01.2013, there is a delay of twenty nine days. Even if we give concession to the thirteen intervening holidays, still there is a huge delay of sixteen days, which remain unexplained.
20. It is trite law that the representation should be very expeditiously considered and disposed of with a sense of urgency and without avoidable delay. Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. From the records produced, we find that no acceptable explanation has been offered for the delay of sixteen days. Therefore, we have to hold that the delay has vitiated further detention of the detenues.
21. In the judgment of the Hon'ble Supreme Court in Rajammal's case (cited supra), it has been held as follows:
"It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be " in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest."
22. As per the dictum laid down by the Supreme Court in above cited Rajammal's case, number of days of delay is immaterial and what is to be considered is whether the delay caused has been properly explained by the authorities concerned. But, here sixteen days delay has not been properly explained at all.
23. Further, in a recent decision in Ummu Sabeena vs. State of Kerala
- 2011 STPL (Web) 999 SC, the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India clearly shows the concern of the makers of the Constitution that the representation, made on behalf of the detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.
24. Therefore, on this ground also, the impugned order of detention is vitiated and liable to be set aside.
25. In the light of the above narrated facts and the well settled principles of law, we have no hesitation in holding that the orders of detention, impugned herein, are liable to be set aside.
26. Accordingly, all these Habeas Corpus Petition are allowed and the impugned detention orders in N.S.A.D.O.Nos.1 to 10/2012 dated 29.11.2012, 30.11.2012 and 03.12.2012 passed by the District Collector and District Magistrate, Madurai District, Madurai are set aside. The detenues are directed to be released forthwith unless their presence is required in connection with any other case.
To
1.The Secretary, Ministry of Home Affairs, Government of India, Department of Internal Security, North Block, New Delhi ? 110 001.
2.The Secretary to Government, Government of Tamil Nadu, Home, Prohibition & Excise (XVI) Department, Government of Tamil Nadu, Fort St. George, Chennai ? 9.
3.The District Collector and District Magistrate, Madurai District, Madurai.
4.The Superintendent of Prison, Bostal School, Pudukkottai District, Pudukkottai.
5.The Inspector of Police, Avaniyapuram Police Station, Madurai.
6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..