K. Jayaraman v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.11.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1216 of 2007K. Jayaraman.. PetitionerVs1. State rep. by Commissioner of Police Trichy.2. The State of Tamil Nadu, rep. by the Secretary Public (Law and Order) Department Fort St. George, Secretariat Chennai 600009.3. The Secretary to Govt. of India Ministry of Home Affairs Department of Internal Security North Block, New Delhi-1... RespondentsPrayer in W.P.No.1216: Petitions filed under Article 226 of theconstitution of India for issue of writ of Habeas Corpus, to call for theentire records culminating in the passing of the order of detention of thepetitioner under section 3(2) of N.S.Act vide Detention Order MemoNo.CPO/TC/IS/NSA/D.O.No.15/2007 dated 30.6.2007 on the file of the firstrespondent and quash the same as illegal and consequently direct therespondents to produce the body and person of the petitioner by nameK.Jayaraman, Son of Kalimuthu from Central Prison, Trichy before thisHonourable Court and thereafgter set him at liberty. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.N.ChandrasekaranFor Respondents-1&2: Mr.N.R.Elango Additional Public ProsecutorFor Respondent-3: Mr.P.Kumaresan ACGSC O R D E R(Order of the Court was made by P.D.DINAKARAN,J.)Challenging the order of detention dated 30.6.2007 passed by thefirst respondent herein in CPO/TC/IS/NSA/D.O.No.15/2007, against oneJeyaraman, the petitioner-detenu herein, in exercise of the powersconferred under sub Section (2) of Section 3 of the National Security Act,1980 (Central Act 65 of 1980) read with orders issued by the Government inG.O.Ms.No.535 Public (Law and Order-F) Department dated 11.4.2007 undersub-section (3) of Section 3 of the Act, the petitioner seeks writ ofhabeas corpus, to call for the records in connection with the detentionorder dated 30.6.2007, quash the same and to direct the respondents toproduce the body of the detenu, now detained in Central Prison,Tiruchirapalli and set him at liberty.2.1. The ground case, on the basis of which the detaining authorityviz., the Commissioner of Police, Tiruchirappalli City, passed theimpugned detention order, is that one Arulseelan was found in a suspiciousmanner and a sum of Rs.10 lakh was recovered. He could not account forpossession of such amount, nor he could account for his presence at theplace in the early morning and also he failed to produce valid document.Thereafter, he was arrested and his confession statement was recorded. Inthe confession, he stated that one Ragulan @ Antony, a known LTTE Cadre,procuring and smuggling explosive materials and other essentialcommodities from the soil of India to Srilanka, had given him the moneywith an instruction to hand over the same to a person in Madurai forprocuring iron balls (for being used to make explosives and bombs). Thesaid Arulseelan further confessed that he had already given Rs.10 lakhs ona previous occasion to a person in Madurai as instructed by Ragulan @Antony, to procure iron balls for LTTE, though he was aware that theorganisation was banned in India. Later, it was known that the amount ofRs.10 lakh was brought by one of the accused Pradheepan @ Thillai @Dheepan, who received the amount from another accused Idayathullah ofChennai and handed over to Ragulan @ Antony at the house of Arulseelan. 2.2. A case was registered in Crime No.1 of 2007 under Section 102Cr.P.C., Section 120-B I.P.C., Sections 10 and 13(1)(2) of UnlawfulActivities (Prevention) Act, 1967, Section 14 of the Foreigners Act andSection 5 of the Explosive Substances Act. Thereafter, the accusedArulseelan, after being produced, was remanded by the Magistrate. Duringinvestigation, accused Regulan @ Antony was arrested on 7.3.2007 and https://hcservices.ecourts.gov.in/hcservices/ remanded to judicial custody. On the basis of his voluntary confessionstatement, police party proceeded to Perambalur and recovered 4.5 tonnesof iron balls meant for despatch to LTTE, a banned outfit in India, andarrested his associates Pradheepan @ Dheepan @ Thillai and Bakeerathan @Elavan on 7.3.2007 and Idayathullah and Seema Basheer @ Basheer Ahamad,who helped the LTTE in money transaction on 7.3.2007 and 20.3.2007respectively. One Raju, who arranged to smuggle the iron balls and othermaterials from Ramanathapuram sea-shore to Srilanka with other accused,was arrested on 8.3.2007. A cell phone which was given by Ragulan @Antony was recovered from him. One Sugu @ Sugumar, a mini lorry driver,was arrested on 19.3.2007 and a cell phone and mini lorry purchased fromthe funds offered by LTTE in the name of one Jeyaraman, the detenu herein,for transporting materials like iron balls, lathe etc., were recovered.The detenu was arrested on 5.6.2007 and 140 kg of iron balls wererecovered. 2.3. Enquiry revealed that the detenu herein had friendship withSathish, who is an LTTE cadre, and procured materials needed by LTTE andsmuggled to Srilanka along with other accused Siva @ Sivakumar,Ramachandran, Ramesh @ Rameshkumar and Sugu @ Sugumar. During October2006, the detenu and his associates conspired to smuggle iron balls,aluminium bars, lathe machine, acid canes and motors etc. to Srilanka formaking new kind of bombs. Accordingly, the detenu came to Madurai withSiva @ Sivakumar and transported lathe machine, aluminium bar, in a van toRamanathapuram. During January 2007, 150 bags of iron balls werepurchased by one of the co-accused and kept in a room at Perambalur.Ragulan sent Rs.10/- lakhs through Arulseelan which was received by thedetenu and handed over to Sathish at Madurai. When the detenu came toUdumalpet to take delivery of 140 kg of iron balls, he was arrested andremanded to judicial custody.2.4. On the basis of these facts, the detaining authority hasconcluded:"12. Hence, I am satisfied from the materials placedbefore me in the above case that the accused Jeyaraman hasknowingly helped the LTTE, a banned organisation in India,for procuring materials and smuggling them to Srilankaclandestinely and thereby acted in a manner prejudicial tothe security of the State, the relations of India withforeign country and maintenance of public order.13. Investigation reveals that the iron balls seizedfrom the accused in this case are used for making bombs bythe LTTE. Illicit transportation of such materials andpossession in the hands of such anti-national elements willreally pose threat to the security of the State and also themaintenance of the public order.2.5. The detaining authority, the first respondent herein, takingnote of the above ground case and having satisfied that the activities ofthe said Jeyaraman are prejudicial to the security of the State, the https://hcservices.ecourts.gov.in/hcservices/ relations of India with foreign country and maintenance of public orderand that there is compelling necessity to detain him under Section 3(2) ofthe National Security Act 1980 (Central Act 65 of 1980 in order to preventhim from indulging in such further activities in future which areprejudicial to the security of the State, the relations of India withforeign country and maintenance of public order, ordered his detention.3. The learned counsel appearing for the petitioner, inviting ourattention to the order of detention, which has been passed by theCommissioner of Police under Section 3(3) of the Act, contends that theimpugned order of detention was passed on the ground that the detenu hadacted in a manner prejudicial to the security of the State, the relationsof India with foreign country and maintenance of public order. The act ofprejudicial to the relations of India with foreign country attractsSection 3(1) of the Act, but not Section 3(2) or 3(3) of the Act. It isargued that as per Section 3 of the Act, the power to detain the detenufrom acting in a manner prejudicial to the relationship of India with aforeign country, under the Act, is vested only with the Central Governmentor the State Government under Section 3(1) and (2) of the Act, but notwith the detaining authority, viz., the Commissioner of Police, as theCommissioner of Police has not been delegated with such power to deal withmatters coming within the scope of Section 3(1) of the Act. 4. At this juncture, it would be relevant to refer Section 3 of theAct, which reads as under.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 aview to preventing him from acting in any manner prejudicialto the defence of India, the relations of India with foreignpowers, of the security of India, or(b) if satisfied with respect to any foreigner thatwith a view to regulating his continued presence in India orwith a view to making arrangements for his expulsion fromIndia, it is necessary so to do, make an order directing that suchperson be detained.2) The Central Government or the State Government may,if satisfied with respect to any person that with a view topreventing him from acting in any manner prejudicial to thesecurity of the State or from acting in any mannerprejudicial to the maintenance of public order or fromacting in any manner prejudicial to the maintenance ofsupplies and services essential to the community it isnecessary so to do, make an order directing that such personbe detained....(3) If, having regard to the circumstances prevailingor likely to prevail in any area within the local limits ofthe jurisdiction of a District Magistrate or a Commissioner https://hcservices.ecourts.gov.in/hcservices/ of Police, the State Government is satisfied that it isnecessary so to do, it may, by order in writing, direct,that during such period as may be specified in the order,such District Magistrate or Commissioner of Police may also,if satisfied as provided in sub-section (2), exercise thepowers conferred by the said section:Provided that the period specified in an order made bythe State Government under this sub-section shall not, inthe first instance, exceed three months, but the StateGovernment may, if satisfied as aforesaid that it isnecessary so to do, amend such order to extend such periodfrom time to time by any period not exceeding three monthsat any one time."5. On perusal of the entire materials placed before us, we find someforce in the contention raised by the learned counsel for the petitioner.The materials relied on by the detaining authority would show that thedetenu had acted in a manner prejudicial to the security of the State, therelations of India with foreign country and maintenance of public order,which would attract only Section 3(1) of the Act, empowering the Centralor State Government to pass detention order in cases where the detenu actsin a manner prejudicial to the relations of India with the foreigncountries, inasmuch as the same is not governed under Section 3(2) and 3(3) of the Act.6. It is settled law that in the matter of passing detention orders,unless the power is specifically provided under the statute, theauthorities cannot pass an order of detention, as otherwise, it wouldoffend Articles 21 and 22 of the Constitution of India. We are,therefore, satisfied that the impugned order of detention dated 4.4.2007lacks jurisdiction.7. That apart, even with regard to the ground that the detenu hadacted in a manner prejudicial to the maintenance of the public order forhaving knowingly helped the LTTE, a banned organisation in India, forprocuring materials and smuggling them to Srilanka clandestinely, in ourconsidered opinion, such assistance by the detenu to the LTTE, a bannedorganisation, for illicit transportation of the iron balls used for bombs,by itself, would not amount to an act prejudicial to the maintenance ofthe public order, nor would amount to pose threat to the security of theState as long as they are not used in India. Therefore, both the groundsrelied on by the detaining authority for passing the impugned detentionorder fail.8. Our view is fortified with the decision of a Division Bench ofthis Court in Thangavadivel vs. Government of Tamil Nadu (1992 L.W. (Crl.)43). https://hcservices.ecourts.gov.in/hcservices/

9. The Madurai Bench of Madras High Court has also taken the sameview in respect of the similarly placed detenu in H.C.P. (MD) No.263 of2007, dated 14.9.2007 (Bhakeerathan @ Eelavan v. State of Tamil Nadu, rep.by its Secretary to Government, Public (Law & Order-F) Department,Chennai-9 and two others).10. In view of the above, the order of detention dated 30.6.2007 isset aside and the habeas corpus petition is allowed. The detenu,K.Jayaraman, is directed to be released forthwith unless his presence isrequired in connection with any other case. ATRSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Commissioner of Police Trichy.2. The Secretary State of Tamil Nadu Public (Law and Order) Department Fort St. George, Secretariat Chennai 600009.3. The Secretary to Govt. of India Ministry of Home Affairs Department of Internal Security North Block, New Delhi-1.4. The Superintendent of Central Prison Tiruchirappalli.5. The Public Prosecutor High Court, Madras.+1 cc to Mr.N.Chandrasekaran, Advocate Sr.No.68396.BVR(CO)DCP/18.12H.C.P.No.1216 of 2007