T. Pushpavathi v. The Commissioner of Police Greater Chennai Egmore

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 Nos.644 to 650 of 2007T. Pushpavathi.. Petitioner in H.C.P.No.644/2007Gandhi.. Petitioner in H.C.P.No.645/2007A. Sekar.. Petitioner in H.C.P.No.646/2007S. Sathyaseelan.. Petitioner in H.C.P.No.647/2007 Lidwin.. Petitioner in H.C.P.No.648/2007Yogeswaran.. Petitioner in H.C.P.No.649/2007Sivasubramanian.. Petitioner in H.C.P.No.650/2007Vs1. Union of India rep. through its Secretary to Govt. Home Affairs (Department of Internal Security) North Block, New Delhi-1.2. State of Tamilnadu rep. through its Secretary to Govt. (Public (L&O-F) Department Fort St. George, Chennai 600009. https://hcservices.ecourts.gov.in/hcservices/

The Commissioner of Police Greater Chennai Egmore, Chennai 600008... Respondents in all the petitionsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus, calling for the records pertaining tothe order of detention dated 28.2.2007 passed by the third respondentvide order Nos.3, 6, 8, 4, 7, 2 and 5 of 2007 as approved by the 2ndrespondent and quash the same and produce the body of the detenues, viz., Selvasendhan @ Sendhan, Bharathidasan @ Bharathi, Gridhar, Sathish @ Nithi, Veluchamy @ Prabhakaran, Sivakaran @ Siva and Karan @Yogaraj before this Court and set them at liberty forthwith from Central Prison, Puzhal, Chennai. For Petitioner : Mr.S.ManoharanFor Respondents-1: Mr.Y.Bhuvanesh Kumar SCGSC-R1For Respondents-2&3 : Mr.N.R.Elango Additional Public Prosecutor -----

O R D E R(Order of the Court was made by P.D.DINAKARAN,J.)All the Habeas Corpus Petitions filed on behalf of the detenuswere heard together and are being disposed of by this common order, asthe basic allegations are common. 2. The orders of preventive detention have been passed by thethird respondent herein vide order Nos.3, 6, 8, 4, 7, 2 and 5 of 2007dated 28.2.2007, in respect of each detenu, in exercise of the powersconferred under sub Section (2) of Section 3 of the National SecurityAct, 1980 (Central Act 65 of 1980) (hereinafter referred to as 'the Act') read with orders issued by the Government in G.O.Ms.No.41, Public(Law and Order-F) Department dated 11.1.2007 under sub-section (3) of Section 3 of the said Act. 3.1. The ground case, on the basis of which the detainingauthority viz., the Commissioner of Police, passed the impugneddetention orders, is that the Inspector of Police, 'Q' Branch CID,Chennai City, based on the reliable information that SrilankanNationals, namely, Sivakaran @ Siva, Selvasendhan @ Sendhan, Karan @Yogaraj, Sathish @ Nithi, Bharathidasan @ Bharathi and drivers Jayavel, Rasheed Ahammed and Mayilvahanan were loading explosive materials in a https://hcservices.ecourts.gov.in/hcservices/ mini lorry at M/s.Jahan Travels, situated at Naval Hospital Road, Periyamedu, Chennai, suspiciously registered a case in Crime No.1 of2007 under Section 120-B I.P.C., Sections 10 and 13(1)(2) of UnlawfulActivities (Prevention) Act, 1967, Section 5 of the ExplosiveSubstances Act and Section 14 of Foreigners Act.

The DeputySuperintendent of Police, 'Q' Branch CID, Chennai City, took up theinvestigation and proceeded to M/s.Jahan Travels, Naval Hospital Road, Periyamedu, Chennai along with police party. On the way, they noticeda mini lorry bearing Registration No.TN-45-S-7534 and a Tata Indica Carbearing Registration No.TN-45-AF-6852 at the junction of EVR Road and Naval Hospital Road. On suspicion, police intercepted the saidvehicles and they found the detenues in HCP.Nos.644, 645, 647, 649 and650 of 2007, viz., Selvasendhan @ Sendhan, Bharathidasan @ Bharathi, Sathish @ Nithi, Sivakaran @ Siva and Katran @ Yogaraj and theirassociates, 40 gunny bags containing iron balls, a sum of Rs.5 lakhscash and cell phones in three numbers in the said vehicles. The DeputySuperintendent of Police seized the abovesaid material objects under amahazar, arrested the detenus and their associates and remanded them tojudicial custody.

3.2. During police custody, the Deputy Superintendent of Policerecorded the confession statements of the detenus in HCP.Nos.644, 649and 650 of 2007. Based on the confession statement of the detenu inHCP.No.649 of 2007, 50 bags of iron balls, a sum of Rs.17,125/- and twocell phones were recovered. Based on the confession statement of thedetenu in HCP.No.644 of 2007, two cell phones and four credit cardswere recovered. As per the confession statement of the detenu inHCP.No.650 of 2007, two cell phones were recovered. 3.3. Subsequently, the Inspector of Police arrested the detenu inHCP.No.648 of 2007 on 24.1.2007 and recorded his confession statement. Based on his confession statement, 60 bags of iron balls and a cellphone were recovered and one Giridhar, the detenu in HCP.No.646 of 2007was arrested. Based on the confession statement of the detenu inHCP.No.646 of 2007, a country made boat with 16 HP kirloskar dieselengine was recovered. 3.

Investigation reveals that the detenus in HCP. Nos. 644, 645,647, 649 and 650 are the members of the LTTE and as per the directionof leaders of LTTE, they conspired together and procured explosivematerials, steel balls, diesel, battery and other items from Tamil Naduand smuggled it to Srilanka for the past three years. Even duringDecember 2006, they procured 14.5 tonnes of iron balls from Mumbai andsmuggled the same to Srilanka.3.

The detenu in HCP.No.648 of 2007, who is an active worker inthe Tamilar Desiya Iyakkam, which is a banned organisation, knowingfully well helped in storing and transporting explosive materials forthe use of LTTE at Srilanka clandestinely. https://hcservices.ecourts.gov.in/hcservices/

3.

On the basis of these facts, the detaining authority hasconcluded: "20. Investigation reveals that the iron ballsseized from them were used as pellets in land mines andbombs by the LTTE for more impact. Illicittransportation of explosive materials and possession inthe hands of such anti national elements will reallypost threat to Security of the State and also themaintenance of public order.21. On perusal of confession statements of Tvl. Sivakaran @ Siva, Selvasendhan @ Sendhan, Karan @Yogaraj, Sathish @ Nithi and Bharathidasan @ Bharathi, Iam satisfied that they belong to LTTE group and procurediron balls from Mumbai and smuggled to LTTE in Srilankathrough Tuticorin and Ramanathapuram coastal area. Further, they knowing fully well that he with hisassociate procuring iron balls which are used as pelletsin land mines and bombs and supplying to the banned LTTEorganisation and thus they have acted in a mannerprejudicial to the security of the State and prejudicialto the maintenance of public order.22. Similarly, I am satisfied that Tr.Veluchamy @Prabhakaran who is an active member of the TamizharDesiya Iyakkam, which is a banned organisation, knowingfully well helped in storing and transporting explosivematerials i.e. iron balls, diesel, battery, charcoalpowders, CDs etc. for the use of LTTE at Srilankaclandestinely and Tr.Giridhar, who is a resident of Rameswaram, knowing fully well helped the LTTE intransporting explosive materials i.e. iron balls, diesel, battery, charcoal powder, CDs etc. for the useof LTTE at Srilanka clandestinely and thus they haveacted in a manner prejudicial to the Security of the State and maintenance of public order.3.

The detaining authority, the third respondent herein, takingnote of the above ground case and having satisfied that the activitiesof the detenus herein are prejudicial to the maintenance of publicorder and that there is compelling necessity to detain them under Section 3(2) of the National Security Act 1980 (Central Act 65 of 1980,in order to prevent them from indulging in such further activities infuture which are prejudicial to the security of the State andmaintenance of public order, ordered his detention.4. The learned counsel for the petitioner contends that evenassuming the detenus procured the materials and smuggled them to Srilanka clandestinely, the same cannot be termed as an act prejudicialto the security of the State and maintenance of the public order and https://hcservices.ecourts.gov.in/hcservices/ therefore, the impugned order of detention is vitiated. 5. We have heard the learned counsel for the petitioners and thelearned Additional Public Prosecutor for for respondents. We have alsoperused the entire materials placed before us.6. Admittedly, the detenus had procured iron balls used for bombsand smuggled them to Srilanka clandestinely in order to help the LTTE,a banned organisation in India. But, we are of the considered opinionthat such assistance rendered by the detenus to the LTTE, a bannedorganisation, for illicit transportation, by itself, would not amountto an act prejudicial to the maintenance of the public order, nor wouldamount to pose threat to the security of the State as long as they arenot used in India. 7. 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).

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).