P. Kaliyammal v. The Government of India

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.858 of 2007P. Kaliyammal.. PetitionerVs1. The Government of India rep. by its Secretary Ministry of Home Affairs Department of Internal Security North Block, New Delhi-1.2. The Government of Tamil Nadu rep. by its Secretary Public (L&O) Department Fort St. George, Chennai.3. The Commissioner of Police Office of the Commissioner Tiruchirappalli City Tiruchirappalli.4. The Superintendent of Central Prison Tiruchirappalli... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner : Mr.P.VijendranFor Respondent-1: Mr.Y.Bhuvanesh Kumar, SCGSCFor Respondents-2to4: Mr.N.R.Elango Additional Public Prosecutor ----- 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 19.4.2007 passed by the third respondentherein in CPO/TC/IS/NSA/D.O.No.11/2007 against one Sugu @ Sugumar, son ofParamasivam, in exercise of the powers conferred under sub Section (2) ofSection 3 of the National Security Act, 1980 (Central Act 65 of 1980) readwith orders issued by the Government in G.O.Ms.No.73 Public (Law andOrder-F) Department dated 11.1.2007 under sub-section (3) of Section 3 ofthe Act, is being challenged in this petition by the mother of the saidSugu @ Sugumaran, seeking to issue writ of habeas corpus calling for therecords in connection with the detention order made inCPO/TC/IS/NSA/D.O.No.11/2007 dated 19.4.2007, quash the same and to directthe respondents to produce the detenu Sugu @ Sugumaran, now detained inCentral 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 andremanded 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,both of them are LTTE cadres and Idayathullah of Chennai on 7.3.2007. https://hcservices.ecourts.gov.in/hcservices/ Enquiry revealed that the accused Sathish procured iron balls and hoardedthem at Perambalur in the house of Ramesh of Pudukkottai. FromPerambalur, with the help of Sugu @ Sugumar, the detenu herein, iron ballswere transported to the seashore in Ramanathapuram district in a minilorry, bought by Sathish in the name of Jayaraman of Sivagangai districtwith the help of Siva @ Sivakumar of Coimbatore, for smuggling to LTTE inSri Lanka. During investigation, the Inspector of Police arrested thedetenu on 19.3.2007, recorded his confession statement, recovered the saidmini van and a cellphone and remanded to judicial custody. 2.3. The other recitals in the grounds of detention indicate theprocurement of iron balls, stocking of such materials in some places andsending those materials to Sri Lanka. On the basis of these facts, thedetaining authority has concluded:"10. Hence, I am satisfied from the materials placedbefore me in the above case that the accused Sugu @ Sugumarhas knowingly helped the LTTE, a banned organisation inIndia, for procuring materials and smuggling them toSrilanka clandestinely and thereby acted in a mannerprejudicial to the security of the State, the relations ofIndia with foreign country and maintenance of public order.11. 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.2.4. The detaining authority, the third respondent herein, takingnote of the above ground case and having satisfied that the activities ofthe said Sugu @ Sugumar are prejudicial to the security of the State, therelations 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) (hereinafterreferred to as 'the Act') in order to prevent him from indulging in suchfurther activities in future which are prejudicial to the security of theState, the relations of India with foreign country and maintenance ofpublic 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 detenu https://hcservices.ecourts.gov.in/hcservices/ from 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 relevent 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 Commissionerof 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 State https://hcservices.ecourts.gov.in/hcservices/ Government 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).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 19.4.2007 isset aside and the habeas corpus petition is allowed. The detenu, Sugu @ https://hcservices.ecourts.gov.in/hcservices/ Sugumar, is directed to be released forthwith unless his presence isrequired in connection with any other case.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarATRTo1. The Secretary Government of India Ministry of Home Affairs Department of Internal Security North Block, New Delhi-1.2. The Secretary Government of Tamil Nadu Public (L&O) Department Fort St. George, Chennai.3. The Commissioner of Police Office of the Commissioner Tiruchirappalli City Tiruchirappalli.4. The Superintendent of Central Prison Tiruchirappalli.5. The Public Prosecutor High Court, Madras.+ one cc to Mr. P. Vijendran, Advocate, SR.68551.+ one cc to Mr. Y. Bhuvanesh kumar, SCGSC, SR. 68767.BVR(CO)RP 20.12.2007.H.C.P.No.858 of 2007