SEETHA Vs. GOVT OF T N

JUDGEMENT

(1.) This petition has been filed by the wife of the detenu, Duraiswamy Mudaliar, praying for the issue of a writ of habeas corpus directing the respondents to produce the detenu and set him at liberty forthwith.

(2.) By an order dt. 7-12-1983 the husband of the petitioner one Duraiswamy Mudaliar was directed to be detained and kept in custody at the Central Prison by the District Magistrate, Chingalpattu in exercise of his powers under S.3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (for short the Act) on the ground that it was necessary to prevent him from acting in any manner prejudicial to the maintenance of public order. The detenu was charged for an offence under S.4(1)(a) of the Tamil Nadu Prohibition Act in Crime No.1894 of 1982 on the ground that he was found to be in possession on 13-10-1982 of chloral hydrate and has been selling the same to toddy shop owners. Again, he was charged in Crime No.446 of 1983 for a similar offence under S.4(1)(a) and 4(1)(i) of the Tamil Nadu Prohibition Act on the ground that he was in possession of 15 packets of chloral hydrate and was manufacturing and selling intoxicating liquid called Kalvari which is an illicit liquor within the meaning of the Prohibition Act. These two charges under the Prohibition Act and the activities are mentioned as the grounds on which the detention order was made. It is seen from the grounds of detention and the counter-affidavit now filed in this case that the confessional statement of the detenu admitting the possession of chloral hydrate and preparing the intoxicating liquid called Kalvari and selling the same, had been relied on by the District Magistrate while he made the detention order. The main point raised by the learned counsel for the petitioner is that such reliance on the confessional statement of the detenu while making the order of detention vitiates the entire order. There is no dispute that an order made under S.3(1) of the Act is not open to objective test as it is one made on the subjective satisfaction of the authority concerned. Therefore, even if the other evidence on record would justify an order of detention, if the confessional statement made by the detenu could not have been relied on, the order is liable to be set aside as it may not be possible to determine what influence his confessional statement had on the mind of the authority in satisfying himself as to the need for making an order under S.3(1) of the Act. Therefore, if the confessional statement could not have been taken into account by the detaining authority the whole order will become vitiated. The learned counsel for the petitioner contended that under S.25 of the Evidence Act, such confessional statements are inadmissible in evidence and that therefore could not have been taken into account by the detaining authority. On the other hand, the learned Public Prosecutor contended that confessions made to a police officer is not admissible in evidence only "as against a person accused of any offence" and that it could be used in any proceedings other than the offence in respect of which that confession was properly made. According to the learned Public Prosecutor in proceedings taken under the Act for preventive detention, the detenu is not accused of any offence, he is not put on any trial and chat it is only a preventive action taken by the detaining authority in order to prevent him in acting in any manner prejudicial to the maintenance of public order. In that sense, it is not a punitive provision and all the evidence collected are in the nature of information furnished to the detaining authority in order to enable him to come to a proper conclusion especially when the matter is one of subjective satisfaction. In this connection, the learned Public Prosecutor also relied on certain decisions which we may note immediately. The first of the decisions is Kailash v. State of U.P., 1983 Cri LJ 452 : (AIR 1983 SC 317). That was a case in which a person was detained under the provisions of National Security Act pursuant to an order made by the District Magistrate. The detention was challenged in proceedings under Art.32 of the Constitution on various grounds. One of the grounds was that a confessional statement made by the detenu which is referred to in the grounds of detention had not been supplied to the detenu. It was contended that it was not necessary to supply copies of such confessional statement. The Supreme Court held that unless such copies were served on the petitioner, it will amount to a denial of opportunity to make proper representations. This is not an authority for the proposition that confessional statement could be relied on in proceedings for preventive detention.

(3.) In Khatri v. State of Bihar, AIR 1981 SC 1068 : (Cri LJ 597) the Supreme Court considered whether statement recorded by a police officer in the course of investigation under Chapter XII Cr.P.C. could not be used in proceedings under Article 32 or 226 of the Constitution. It was the contention of the State in that case that S.162 of the Cr.P.C. bars the use of such statements. The Supreme Court pointed out that by the express terms of S.162, Cr.P.C. the bar is applicable only where such statement is sought to be used "at any enquiry or trial in respect of an offence under investigation at the time when such statement was made". But this protection "is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example in a civil proceedings or in a proceeding under Art.32 or 226 of the Constitution, and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Evidence Act." The Supreme Court came to this conclusion on the ground that S.162, Cr.P.C. has been enacted for the benefit of the accused and to protect him against over jealous police officers and untruthful witnesses and that this protection was however unnecessary in any proceedings other than an inquiry or trial in respect of an offence under investigation and hence the bar created by the section is a limited bar. If we apply the same logical reasoning, we have no doubt that the confessional statement made by a detenu could not be relied on by the detaining authority for the purpose of preventive detention also. S.24 of the Evidence Act states that a confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused "by any inducement, threat or promise of having reference to the charge against the accused person etc. etc." Section 25 is enacted to guard against confessional statements being extracted by the police and to prevent obtaining statement by oppression, torture, undue influence and any other malpractices. Section 25 presumes a confessional statement given to a police officer could have been obtained under circumstances mentioned in S.24 itself. If that is the scope and purport of S.25 of the Evidence Act, we think, that even if S.25 in terms is not applicable to proceedings taken under the Act, the rule of that provision by analogy would be equally applicable to such proceedings as otherwise the very mischief sought to be prevented by the provisions of S.25 will be very much in the proceedings under the Act. We are of the view that the protection given to an accused person by S.25 of the Evidence Act, shall be equally applied to a person detained under the provisions of the Act as well. In fact the Supreme Court has invoked the principles of the provisions of the Evidence Act and other provisions in other enactments though they are not specifically applicable to writ proceedings. For instance the principles of res judicata provided under S.11 of the Civil P.C. though in terms are not made applicable to Art.226 has been applied by the Supreme Court by analogy. That was on the ground that the very basis of S.11 C.P.C. is to prevent multiplicity of proceedings and that principle is equally applicable to the proceedings under Art.226 of the Constitution. We are therefore of the view that the principles of S.25 of the Evidence Act by analogy will have to be applied even in respect of preventive detention under the Act.