JAYALAKSHMI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) W.P. No. 5003 of 1992 is filed by one Jayalakshmi, mother of the detenu Vasudevan alias Vasu, challenging the order of detention dated 21/10/1991 passed by the third respondent/District Magistrate/District Collector, Tiruchirapalli, against the detenu Vasudevan alias Vasu, under Article 226 of the Constitution of India and for setting him at liberty. W.P. No. 5004 of 1992 is filed by one Rajarathinam, the detenu himself, challenging the impugned order of detention dated 21/10/1991 passed by the third respondent and praying to set him at liberty. W.P. No. 5005 of 1992 is filed by one Kaliaperumal, father of the detenu Murugesan alias Murugan, challenging the order of detention dated 21/10/199 1 passed by the second respondent and set him at liberty. W.P. No. 5006 of 1992 is filed by the father of the detenu Johni alias John Prabhakaran challenging the order of detention dated 21/10/1991 passed by the third respondent and set him at liberty. W.P. No. 5007 of 1992 is filed by one Amaravathi, wife of the detenu Dr. V. Gopalakrishnan, challenging the order of detention dated 21.10.1991 passed by the third respondent and set him at liberty.

(2.) The impugned orders in all these cases were passed by the District Magistrate and District Collector, Tiruchirappalli in exercise of the powers conferred by section 3(2) of the National Security Act, 1980, with a view to preventing the respective detenus from acting in any manner prejudicial to the maintenance of public order. The brief facts which led to the passing of these orders can be stated as follows: On 4.8.1991 at about 22.45 hours when the Inspector of Police, Jeeyapuram Circle was attending to his work with his staff, he received a phone call stating that in the building bearing door No. W5/45 presently used as Priya Nursing Home, Murungapettai explosive substances are kept for transporting them to the Sirlankan militants. Accordingly, the Inspector of Police and his party rushed to Murungapettai village and at about 00.30 hours on 5.8. 1991 they searched the Priya Nursing Home in the presence of the Village Administrative Officer and another witness and also in the presence of Dr. Gopalakrishnan, and as a result of the search, he has found two empty magazines for the 9 mm pistol, 25 cartridges, one box full of 10,000 detonators, red phosphorus of 5 kg tin one, 6 negative print film of LTTE, calendars 1 0 in number and Sanyo trans receiver set one. All the above explosive substance/articles were seized under a cover of search list mahazar. A confession statement from Dr. Gopalakrishnan was recorded. The said Dr. Gopalakrishnan is the husband of the petitioner and detenu in W.P. No. 5007 of 1992. During the investigation, it came to light that a case in Jeeyapuram Police Station Crime No. 258 of 1991 under sections 120B, 153A, I.P.C. and sections 3, 4 and 5 of Terrorist and Disruptive Activities (Prevention) Act and section 25 of the Arms Act and sections 5 and 6 of the Explosive Substances Act was registered and the case was investigated. After the follow up action, the impugned order was passed against the said Dr. Gopalakrishnan. In pursuance of the confessional statement given by Dr. Gopalakrishnan, the detenu Vasudevan alias Vasu (concerned in W.P. No. 5003 of 1992) was arrested at 20;00 hours on 9.8.1991. He gave a voluntary confession and produced gun cotton (explosive material), LTTE magazines and literatures and some of the account note books maintained by Dr. Gopalakrishnan. Those properties were seized under mahazar. During investigation it came to light that a case in Jeeyapuram Police Station Crime No. 258 of 1991 was pending investigation. After follow-up action, the impugned order was passed. It is also stated that Dr. Gopalakrishnan has confessed that Rajarathinam (Petitioner in W.P. No. 5004 of 1992) is also assisting the Srilankan militants in supplying explosive substances. In pursuance of the said confessional statement, the Inspector of Police arrested the said Rajarathinam in his house at Analai village at about 06.00 hours on 5.8.1991 and seized explosive substance/articles and other incriminating articles. During investigation it came to light that a case in Jeeyapuram Police Station Crime No. 2580f 1991 was pending. After follow-up action, the impugned order against Rajarathinam was passed. On the basis of the confession given by Dr. Gopalakrishnan, the detenu Murugan alias Murugesan, detenu in W.P. No. 5005 of 1992 was arrested on 10.8.1991 at 11.30 hours and he gave a voluntary confession admitting that he was transporting the medicines, explosive substance etc. He is also arrayed as an accused in the said Crime No. 258 of 1991, and after follow up action, the detenu was detained. The detenu Johni alias John Prabakaran, the detenu in W.P. No. 5006 of 1992, was also traced in pursuance of the confessional statement given by Dr. Gopalakrishnan and he was arrested on 18.8.199 1 at 17.30 hours at Nachiarkoil bus stop at Woriyur. He also gave a voluntary statement stating that he was assisting Dr. Gopalakrishnan in purchasing medicines and explosive substances. He was also arrayed as an accused in the said crime number and after follow up action, he was detained.

(3.) By consent of both parties, all these cases were clubbed together and a common order is passed as they were detained in pursuance of the same transaction. It is also seen that a case was registered against all of them in the same crime number and investigated. The impugned orders are challenged by the same counsel on a common question. Though the writ petitions were challenged on many grounds, the learned counsel Mr. T. Kalaimani challenged the orders on the only ground viz, the detaining authority failed to apply his mind on the arrest of the detenus for offences under sections 120B and 153A, sections 3, 4 and 5 of TADA Act 1987, section 25 of the Arms Act and sections 5 and 6 of the Explosive Substances Act, from which there would be no imminent possibility of their coming out on bail. In the absence of any compelling necessity, the detention orders are vitiated. He has taken this as a ground in all the cases. In the counter- affidavit filed by the detaining authority, it is contended that as stated in the grounds of detention the detenu was in remand and may come out on bail and if he is let to remain at large, he will indulge in such activities prejudicial to the maintenance of public order. It is open to the detenu who is in remand to file bail application before the appropriate court. In such cases bail might be granted after some time. Hence there is imminent possibility of their coming out on bail. The orders of detention were passed due to compelling necessity and their activities warranted their detention under the Act and to prevent them from so acting in future. As such the contention is not sustainable. The learned counsel for the petitioner drew the attention of this court to the grounds of detention in all the cases, wherein it is uniformly stated in all the cases that the detaining authority is aware that the detenus are in remand and are likely to be released on bail after some time. He is fully aware that there is an imminent possibility of their coming out on bail and if they come out on bail, they will go underground and continue their activities in some other part of the State in conspiracy with Srilankan militants in future. He was also aware that the detenus would be proceeded with under normal law. However, he is satisfied that the activities of the detenus warrant their detention under the National Security Act, 1980 in view of the compelling necessity to effectively prevent them from pursuing their activities in future. The learned counsel for the petitioners, Mr. T. Kalaimani submitted that the detenus were arrested long prior to the orders of detention and none of them moved for bail. Further, there is no possibility of their coming out on bail in view of the fact that they were charged under the provisions of the TADA Act and the detaining authority is also aware of this fact. The learned counsel drew the attention of this court to section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 wherein it is provided that no person accused of an offence punishable under the Act or any rule made thereunder shall be released on bail, if in custody, unless the Public Prosecutor had been afforded an opportunity to oppose the application and even if the Public Prosecutor opposed the application, the person accused of an offence under the Act shall not be released on bail, unless the Court was satisfied that there were reasonable grounds for believing, that he was not guilty of such offence and that he was not likely to commit any offence while on bail. According to the learned counsel, if that be so the detaining authority has exhibited total non- application of mind when he has stated in the grounds of detention that the detenus are in remand and they are likely to be released on bail after some time and that he is satisfied that the activities of the detenus warrant their detention under the National Security Act, 1980, in view of the compelling necessity to effectively prevent them from pursuing their activities in future. In this connection, the learned counsel for the petitioner drew the attention of this court to the decision rendered by a Division Bench of this court in B. Prabakaran v. The State of Tamil Nadu, upheld the said contention in similar circumstances that total non-application of mind of the detaining authority is patent not only from the grounds of detention but from the contents of the counter affidavit as well and that there was no compelling necessity to pass the impugned orders. According to the learned counsel for the petitioner, the very same detaining authority passed the impugned order in the above quoted writ petition and submitted that the ratio laid down in the said case is applicable in all fours to that of this case also. The learned counsel also drew the attention of this court to the decisions of the apex court on the question of compelling necessity. In Rameshwar Shaw v. District Magistrate, Burdwan, the Constitution Bench reiterated: 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 property 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 by released then these should have been made apparent. In N. Meera Rani v. Govt. of T.N., while reiterating the principle enunciated in the Constitution Bench decision in Rameshwar Shaw case, it was held, Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. Ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which arc proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. Where the detention order read with its annexure indicated the detaining authoritys awareness of the fact of detenus jail custody at the time of the making of the detention order, however, there was no indication therein that the detaining authority considered it likely that the detenu could be released on bail and in fact, the contents of the order showed the satisfaction of the detaining authority that there was ample material to prove the detenus complicity in the bank dacoity including sharing of the booty by the detenu, the order of detention was clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release. In Abdul Razak v. S.N. Sinha. Police Commr., Ahmedabad4 it was held: On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of detention. In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail. It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on 13th May, 1988. It is also not disputed that thereafter, no application for bail was made, for release of the detenu before the order of detention was served on him on 23rd May, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet there are full possibilities that you may be released on bail in this offence also. This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail is non-existent. This fact of non-awareness of the detaining authority, in our opinion, clearly establishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials. In Dharmendra Suganchand Chelawat v. Union of India, it was held: An order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression compelling reasonsT in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. In the instant case in the grounds of detention the detaining authority has only mentioned the fact that the detenu has been remanded to judicial custody till October 13, 1988. The grounds of detention do not show that the detaining authority apprehended that the further remand would not be granted by the Magistrate on October 13, 1988, and the detenu would be released from custody on October 13, 1988. Nor is there any material in the grounds of detention which may lend support to such an apprehension. On the other hand the bail applications moved by the detenu had been rejected by the Sessions Judge a few days prior to the passing of the order of detention on October 11, 1988. The grounds of detention disclose that the detenus were engaged in activities which are offences punishable with imprisonment under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. It cannot, therefore, be said that there was a reasonable prospect of the detenues not being further remanded to custody on October 13, 1988 and their being released from custody at the time when the order for preventive detention of that detenu was passed on October 11, 1988. In the circumstances, the order for detention of the detenu would be liable to be set aside. In Binod Singh v. Distt. Magistrate, Dhanbad, it was held: 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. The learned counsel for the petitioner also cited the decisions in Vijay Narain Singh v. State of Bihar, Alijan Mian v. District Magistrate, Ramakrishna v. District Magistrate, Jabalpur, Dulal Roy v. Dist. Magistratet and Ghetu Sheik v. State of WB., on the question of effect of compelling necessity. We do not want to mulct the catena of decisions in view of the fact that we have already summarised the latest decisions of the apex court on this question.