THANGAVADIVEL Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) THESE two Writ Petitions are disposed of together by a common order since the detenus concerned are stated to be involved in the same transaction and the contentions raised are identical. The detenus in these writ petitions are stated to be brothers. The prayer in these writ petitions is for the issue of a habeas corpus for the production of the respective detenus before this court to be set at liberty, after quashing the impugned orders of detention dated 10th August, 1991 passed by the second respondent in exercise of the powers conferred by S. 3(3) of the National Security Act read with the relevant Government Order under S.3(2) of the Act, with a view to prevent the detenus from acting hi any manner prejudicial to the maintenance of public order.

(2.) BRIEF facts which led to the passing of the impugned orders of detention may have to be stated. On 23.7.1991 at 2 p.m. on reliable information that the detenus were engaged in smuggling out essential commodities like diesel, petrol, Engine oil, cloth, chillies and other materials clandestinely to Sri Lanka, the residential premises of both the detenus were searched. In W.P. No. 12322 of 1991, the detenus is R.M.S. Meiyappan. The writ petitioner Thangavadivel is the son of the detenu. In Writ Petition 12567 of 1991, the detenu is R.M.S.Gowthaman, the writ petitioner being his brother. From the residence of the detenu Meiyappan a 9 mm pistol of Czechoslovakia make, two magazines and 15 bullets were recovered from the steel bureau kept in the center room of the house. Meiyappan did not possess any licence to keep arms and ammunition. He was arrested and his confessional statement was recorded. In his confession he admitted that he was in the habit of committing smuggling of essential commodities to Sri Lanka along with his younger brother Gowthaman. He added that both of them were having close contacts with Liberation Tigers of Tamil Ealem. As there was shortage of Diesel and Petrol in Srilanka, they were aiding the LTTE, to smuggle Diesel and petrol, clandestinely from India. Towards that end, they were in the habit of engaging local people. The pistol and ammunition were provided for his protection by the LTTE. The other detenu Gowthaman attempted to escape when Meiyappan was giving out his confession. Gowthaman was arrested and he also volunteered a similar confession, as Meiyappan. He further stated that he was in possession of an unlicensed Pistol with necessary bullets and magazines, to help his brother in smuggling activities. Search of the residence of Gowthaman yielded in seizure of a 9 mm. Pistol 2 magazines and 24 bullets. Further Gowthaman produced 2 cans containing 35 litres of diesel each, one can containing. 10 litres of petrol and 5 empty 35 litre Cans smelling diesel. A case in Crime No.436/91 under Ss. 25(1) read with 3 of Indian Arms Act; 3(6A) and 7 of the Essential Commodities Act and S.285 Indian Penal Code was registered by the Muthupetaii police station. Both the detenus were remanded. On a plea by the investigating agency police custody of both the detenus was ordered. Statements under S.27 of the Indian Evidence Act by the detenus, led to the recovery of 10 empty thirty five litre cans from a concealed spot in Korayar Naduthittu, at Pettai. Further investigation revealed that due to smuggling activity indulged in by the detenus, there was dissatisfaction in and inconvenience to the local public. It is under these circumstances, that the impugned orders of detention were clamped.

(3.) ON these contentions we have heard Mr. B. Sriramulu, learned Public Prosecutor. He submitted, that there was nothing wrong in the detaining authority having arrived at his subjective satisfaction, on the presumption that the society at large was likely to revolt due to shortage of essential commodities and that may lead to disturbance of public order. He argued that power of preventive detention was qualitatively different from punitive detention since the former was a precautionary power exercised reasonably in anticipation and may or may not relate to an offence. In other words, preventive detention cannot be considered to be a parallel proceeding. Though other grounds have been raised by the learned Counsel, they need no scrutiny, since the detenus, are bound to succeed on this ground.