Dhanalakshmi v. The Commissioner of Police Tiruchirappalli City Tiruchirappalli.2. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.618 of 2007Dhanalakshmi.. PetitionerVs1. The Commissioner of Police Tiruchirappalli City Tiruchirappalli.2. State, rep. by the Chief Secretary to Govt. of Tamilnadu Public (Law and Order) Department Fort St. George, Chennai 600009.3. The Secretary to Govt. of India Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi 110 001... RespondentsPetition filed under Article 226 of the Constitution of Indiafor issue of Writ of Habeas Corpus as stated therein.For Petitioner : Mr.VeerakathiravanFor Respondents-1&2 : Mr.N.R.Elango Additional Public Prosecutor Mr.Y.Bhuvanesh Kumar SCGSC-R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The order of detention dated 4.4.2007 passed by the firstrespondent herein in CPO/TC/IS/NSA/D.O.No.7/2007 against one Raju,son of Palani @ Palani Chettiyar, in exercise of the powersconferred under sub Section (2) of Section 3 of the NationalSecurity Act, 1980 (Central Act 65 of 1980) read with the ordersissued by the Government in G.O.Ms.No.73 Public (Law and Order-F)Department dated 11.1.2007 under sub-section (3) of Section 3 ofthe said Act, is being challenged in this petition by the wife ofthe said Raju, seeking to issue writ of habeas corpus calling forthe records in connection with the detention order made inCPO/TC/IS/NSA/D.O.No.7/2007 dated 4.4.2007 and to quash the sameand to direct the respondents to produce the detenu Raju, nowdetained in Central Prison, Tiruchirapalli and set him at liberty.2.1. The ground case, on the basis of which the detainingauthority viz., the Commissioner of Police, Tiruchirappalli City,passed the impugned detention order, is that one Arulseelan wasfound in a suspicious manner and a sum of Rs.10 lakh was recovered.He could not account for possession of such amount, nor he couldaccount for his presence at the place in the early morning and alsohe failed to produce valid document. Thereafter, he was arrestedand his confession statement was recorded. In the confession, hestated that one Ragulan @ Antony, a known LTTE Cadre, procuring andsmuggling explosive materials and other essential commodities fromthe soil of India to Srilanka, had given him the money with aninstruction to hand over the same to a person in Madurai forprocuring iron balls (for being used to make explosives and bombs).The said Arulseelan further confessed that he had already givenRs.10 lakhs on a previous occasion to a person in Madurai asinstructed by Ragulan @ Antony, to procure iron balls for LTTE,though he was aware that the organisation was banned in India.Later, it was known that the amount of Rs.10 lakh was brought byone of the accused Pradheepan @ Thillai @ Dheepan, who received theamount from another accused Idayathullah of Chennai and handed overto Ragulan @ Antony at the house of Arulseelan. 2.2. A case was registered in Crime No.1 of 2007 underSection 102 Cr.P.C., Section 120-B I.P.C., Sections 10 and 13(1)(2)of Unlawful Activities (Prevention) Act, 1967, Section 14 of theForeigners Act and Section 5 of the Explosive Substances Act.Thereafter, the accused Arulseelan, after being produced, wasremanded by the Magistrate. During investigation, accused Regulan@ Antony was arrested on 7.3.2007 and remanded to judicial custody.On the basis of his voluntary confession statement, police party https://hcservices.ecourts.gov.in/hcservices/ proceeded to Perambalur and recovered 4.5 tonnes of iron ballsmeant for despatch to LTTE, a banned outfit in India, and arrestedhis associates Pradheepan @ Dheepan @ Thillai and Bakeerathan, bothof them are LTTE cadres and Idayathullah of Chennai on 7.3.2007.In his confession, Ragulan @ Antony further confessed that heillegally ferried explosive materials to Srilanka in the year 2004with the help of one Raju. During investigation, the said Raju,the detenu herein, was arrested on 8.3.2007 and remanded tojudicial custody. 2.3. The other recitals in the grounds of detention indicatethe procurement of iron balls, stocking of such materials in someplaces and sending those materials to Sri Lanka. On the basis ofthese facts, the detaining authority has concluded:"10. Hence, I am satisfied from the materialsplaced before me in the above case that the accusedRaju has knowingly helped the LTTE, a bannedorganisation in India, for procuring materials andsmuggling them to Srilanka clandestinely and therebyacted in a manner prejudicial to the security of theState, the relations of India with foreign countryand maintenance of public order.11. Investigation reveals that the iron ballsseized from the accused in this case are used formaking bombs by the LTTE. Illicit transportation ofsuch materials and possession in the hands of suchanti-national elements will really pose threat to thesecurity of the State and also the maintenance of thepublic order.2.4. The detaining authority, the first respondent herein,taking note of the above ground case and having satisfied that theactivities of the said Raju are prejudicial to the security of theState, the relations of India with foreign country and maintenanceof public order and that there is compelling necessity to detainhim under Section 3(2) of the National Security Act 1980 (CentralAct 65 of 1980) (hereinafter referred to as 'the Act') in order toprevent him from indulging in such further activities in futurewhich are prejudicial to the security of the State, the relationsof India with foreign country and maintenance of public order,ordered his detention.3. The learned counsel appearing for the petitioner, invitingour attention to the order of detention, which has been passed bythe Commissioner of Police under Section 3(3) of the Act, contendsthat the impugned order of detention was passed on the ground thatthe detenu had acted in a manner prejudicial to the security of theState, the relations of India with foreign country and maintenanceof public order. The act of prejudicial to the relations of India https://hcservices.ecourts.gov.in/hcservices/ with foreign country attracts Section 3(1) of the Act, but notSection 3(2) or 3(3) of the Act. It is argued that as per Section3 of the Act, the power to detain the detenu from acting in amanner prejudicial to the relationship of India with a foreigncountry, under the Act, is vested only with the Central Governmentor the State Government under Section 3(1) and (2) of the Act, butnot with the detaining authority, viz., the Commissioner of Police,as the Commissioner of Police has not been delegated with suchpower to deal with matters coming within the scope of Section 3(1)of the Act. 4. At this juncture, it would be apposite to refer Section 3of the Act, which reads as under.3. Power to make orders detaining certainpersons:- (1) The Central Government or the StateGovernment may:- (a) if satisfied with respect to any person thatwith a view to preventing him from acting in anymanner prejudicial to the defence of India, therelations of India with foreign powers, of thesecurity of India, or(b) if satisfied with respect to any foreignerthat with a view to regulating his continued presencein India or with a view to making arrangements forhis expulsion from India, it is necessary so to do, make an order directingthat such person be detained.2) The Central Government or the StateGovernment may, if satisfied with respect to anyperson that with a view to preventing him from actingin any manner prejudicial to the security of theState or from acting in any manner prejudicial to themaintenance of public order or from acting in anymanner prejudicial to the maintenance of supplies andservices essential to the community it is necessaryso to do, make an order directing that such person bedetained....(3) If, having regard to the circumstancesprevailing or likely to prevail in any area withinthe local limits of the jurisdiction of a DistrictMagistrate or a Commissioner of Police, the StateGovernment is satisfied that it is necessary so todo, it may, by order in writing, direct, that duringsuch period as may be specified in the order, suchDistrict Magistrate or Commissioner of Police mayalso, if satisfied as provided in sub-section (2),exercise the powers conferred by the said section: https://hcservices.ecourts.gov.in/hcservices/ Provided that the period specified in an ordermade by the State Government under this sub-sectionshall not, in the first instance, exceed threemonths, but the State Government may, if satisfied asaforesaid that it is necessary so to do, amend suchorder to extend such period from time to time by anyperiod not exceeding three months at any one time."5. On perusal of the entire materials placed before us, wefind some force in the contention raised by the learned counsel forthe petitioner. The materials relied on by the detaining authoritywould show that the detenu had acted in a manner prejudicial to thesecurity of the State, the relations of India with foreign countryand maintenance of public order, which would attract only Section 3(1) of the Act, empowering the Central or State Government to passdetention order in cases where the detenu acts in a mannerprejudicial to the relations of India with the foreign countries,inasmuch as the same is not governed under Section 3(2) and 3(3) ofthe Act.6. It is settled law that in the matter of passing detentionorders, unless the power is specifically provided under thestatute, the authorities cannot pass an order of detention, asotherwise, it would offend Articles 21 and 22 of the Constitutionof India. We are, therefore, satisfied that the impugned order ofdetention dated 4.4.2007 lacks jurisdiction.7. That apart, even with regard to the ground that the detenuhad acted in a manner prejudicial to the maintenance of the publicorder for having knowingly helped the LTTE, a banned organisationin India, for procuring materials and smuggling them to Srilankaclandestinely, in our considered opinion, such assistance by thedetenu to the LTTE, a banned organisation, for illicittransportation of the iron balls used for bombs, by itself, wouldnot amount to an act prejudicial to the maintenance of the publicorder, nor would amount to pose threat to the security of the Stateas long as they are not used in India. Therefore, both the groundsrelied on by the detaining authority for passing the impugneddetention order fail.8. Our view is fortified with the decision of a Division Benchof this Court in Thangavadivel vs. Government of Tamil Nadu (1992L.W. (Crl.) 43).9. The Madurai Bench of Madras High Court has also taken thesame view in respect of the similarly placed detenu in H.C.P. (MD)No.263 of 2007, dated 14.9.2007 (Bhakeerathan @ Eelavan v. State ofTamil Nadu, rep. by its Secretary to Government, Public (Law &Order-F) Department, Chennai-9 and two others). https://hcservices.ecourts.gov.in/hcservices/

10. In view of the above, the order of detention dated4.4.2007 is set aside and the habeas corpus petition is allowed.The detenu, Raju, is directed to be released forthwith unless hispresence is required in connection with any other case. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATRTo1. The Commissioner of Police Tiruchirappalli City Tiruchirappalli.2. The Chief Secretary to Govt. of Tamilnadu Public (Law and Order) Department Fort St. George, Chennai 600009.3. The Secretary to Govt. of India Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi 110 001.4. The Superintendent Central Prison Tiruchirappalli.5. The Public Prosecutor High Court, Madras.1 cc to Mr.Y. Bhuvanesh Kumar, SCGSC, Sr. 688051 cc to Mr. Veera Kathiravan, Advocate, Sr. 68130H.C.P.No.618 of 2007CU (CO)kk 17/12