S.Sasikala Sampath.. v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.04.2009CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE C.S.KARNANH.C.P.No.400 of 2009S.Sasikala Sampath.. Petitioner-Vs-1. State of Tamil Nadu rep.by its Secretary to Government Public (Law and Order-F) Government of Tamil Nadu Secretariat, Fort St.George Chennai 600 0092. The District Magistrate and District Collector Tirupur District, Cotton Market Buildings Palladam Road, Tirupur, Tirupur District..Respondents Petition under Article 226 of the Constitution of India, prayingfor the issue of a Writ of Habeas Corpus, calling for the recordsrelating to the proceedings of the second respondent made inCr.M.P.No.01/NSA/2009 dated 14.03.2009 and quash the same and directthe respondents to produce the corpus of the detenu Naanchil Sampathson of M.Baskaran, now detained at the Central Prison, Coimbatorebefore this Hon'ble Court and set him at liberty.For Petitioner:: Mr.Vaiko forM/s G.DevadossG.NanmaranR.PriyakumarFor Respondents:: Mr.S.Ramasamy Additional Advocate General-IIassisted byMr.M.Babu Muthu MeeranAdditional Public Prosecutor andMr.Hasan Mohammed Jinnah Government Adcocate (Crl.Side) ORDER (Order of the Court was delivered by D.MURUGESAN, J.)The petitioner Tmt.S.Sasikala Sampath is the wife of the detenuThiru Naanchil Sampath, who has been detained under Section 3(2) ofthe National Security Act, 1980 by the detention order dated https://hcservices.ecourts.gov.in/hcservices/

14.3.2009 passed by the District Magistrate and District Collector,Tirupur District. 2. The detention order came to be passed under the followingcircumstances. The Liberation Tigers of Tamil Eelam (LTTE) is anunlawful association under the Unlawful Activities (Prevention) Act,1976 and banned by the Government of India and republished in theTamil Nadu Government Gazette Extraordinary ordered videG.O.Ms.No.606, Public (SC) Department dated 16.05.2008. The saidLTTE continues to remain a strong terrorist movement and stimulatethe secessionist sentiments to enhance the support base of the LTTEin Tamil Nadu as long as Srilanka continues to remain in a state ofethnic strife born by the demand for Tamil Eelam which finds a strongecho in Tamil Nadu due to the linguistic, cultural, ethnic andhistorical affinity between the Srilankan Tamils and the IndianTamils.3. On 1.3.2009, at about 2.00 p.m., the detenu delivered aspeech at Harvey Kumarasamy Kalyana Mandapam in Tirupur North PoliceStation limits in a meeting organized by the Students Federation inrespect of the prevailing conditions of Tamil population in Srilanka.He uttered the following words:"tpLjiy g[ypfs; ,af;fj;jpw;Fk;. mjd; jiyth; gpughfuDf;Fk;ek;khy; Md cjtpfis bra;a ntz;Lk;/jdp jkpH;ehL mila td;Kiw nghuhl;lj;ij ehk; ifapy;vLf;f ntz;Lk;. jdpj; jkpH;ehL cUthf;f ntz;Lk;. jkpH;ehl;ow;F J}jufk; bly;ypapy; mika ntz;Lk;. mjw;F khzth;fs; nghuhlntz;Lk;/////////xU ,yl;rk; jkpHh;fs; ,y';ifapy; bfhy;yg;gLfpwhh;fs;. ,njepiy bjhlh;e;jhy; bly;ypapy; jkpHfj;jpd; J}jufk; mika ntz;oaepiy tUk;/"A complaint was given by one Thiru K.Ganesh on 6.3.2009 which wasregistered in Tirupur North Police Station Crime No.1127 of 2009under Section 153(B)(1)(a) IPC r/w 13(1)(b) of Unlawful Activities(Prevention) Act, 1967. He was arrested at about 8.00 p.m., on7.3.2009 and was produced before the Judicial Magistrate, Avinashi,holding additional charge, on 8.3.2009 and was remanded to judicialcustody on the same day till 20.3.2009. He was confined in theCentral Prison, Coimbatore as a remand prisoner. When the detenu wasproduced before the Magistrate, he himself filed a bail applicationand thereafter the learned Magistrate directed the detenu to beproduced before the Court on 11.3.2009 and 12.3.2009. However, hewas not produced in person, but the remand was extended through videoconference. Later he was produced before the Magistrate on 14.3.2009and on which date he was granted bail subject to certain conditions. 4. In the meantime, the Inspector of Police (L&O), Tirupur NorthPolice Station sent his affidavit dated 12.3.2009 together with theconnected materials to the detaining authority recommending actionunder Section 3(2) of the National Security Act. While thosematerials were under consideration, the bail order dated 14.3.2009 https://hcservices.ecourts.gov.in/hcservices/ was placed before the detaining authority and on consideration of thematerials including the bail order, the detaining authority came tothe conclusion that there was an imminent possibility of the detenucoming out on bail and the speech delivered by him was prejudicial tothe maintenance of public order and in order to effectively preventthe detenu from indulging in such activities, he should be detainedunder the National Security Act. Accordingly, the detaining authoritypassed the detention order. 5. The said detention order is assailed before this Court.Mr.Vaiko, learned counsel for the petitioner advanced his argumentsprimarily on the following three grounds:(i) The material papers running 212 pages were placed before thedetaining authority on 14.3.2009, the day on which the detentionorder was passed. It is humanly impossible for the detainingauthority to apply his mind to arrive at the subjective satisfactionthat the detenu must be detained. Application of mind by thedetaining authority is not a mere formality and it must be real andmust be such that it should satisfy the Court as to the applicationof mind. A mere awareness as to the materials by the detainingauthority is not sufficient, as the satisfaction based on thosematerials by proper application of mind is relevant.(ii) At the time the bail order was passed, the detenu filed awritten statement before the Court and the copy of the writtenstatement is not furnished to him. The contents of the writtenstatement are relevant and the failure on the part of the sponsoringauthority to place the said written statement before the detainingauthority and consequently the failure on the part of the detainingauthority in not considering the same and also to furnish such a copyto the detenu would vitiate the detention order. He would furthersubmit that considering the defence taken by the detenu, the learnedMagistrate had granted bail. The contents of the bail order arerelevant for the detaining authority to arrive at satisfactionregarding compelling necessity to pass the detention order. There isno application of mind by the detaining authority as to the contentsof the bail order except stating that there is an imminentpossibility of the detenu coming out on bail after coming to knowthat the bail has been already ordered. Had the detaining authorityapplied his mind to the contents of the bail order, he would not havearrived at the satisfaction to pass detention order, which exhibitstotal non-application of mind to the bail order.(iii) A single speech delivered by the detenu cannot be thebasis for the detention order and that too, the said speech wasdelivered due to the ordeals faced by Tamils in Srilanka and the saidspeech does not in any way intend to affect the national security.In any case, the speech was delivered within a closed premises,wherein only 350 participants including five women were present, andno materials were placed before the detaining authority to indicateany act prejudicial to the public order had occurred after thespeech. The intention to indulge in activities which are prejudicialto the maintenance of public order must be supported by materials, asthe mens rea is also a relevant factor. In the absence of thosematerials, particularly, no untoward incident prejudicial to the https://hcservices.ecourts.gov.in/hcservices/ maintenance of public order had occurred after the delivery of speechbetween 1.3.2009 and 7.3.2009 when the detenu was arrested and infact no occurrence prejudicial to the public order took place evenafter his arrest. Hence there is absolutely no materials to showthat the detenu had indulged in activities which are prejudicial tothe maintenance of public order and therefore the satisfaction of thedetaining authority to pass the detention order only to prevent thedetenu from indulging in such activities is unsupported by anymaterial and consequently the detention order is liable to be setaside.6. In opposing the petition, Mr.S.Ramasamy, learned AdditionalAdvocate General has submitted that insofar as the non-application ofmind on the part of the detaining authority is concerned, thesponsoring authority had forwarded the affidavit dated 12.3.2009along with the documents, which were received by the detainingauthority on the same day and the detaining authority had at leasttwo clear days for considering those materials. The only documentproduced before the detaining authority on 14.3.2009 is the bailorder. Hence it is not correct to say that all the materials wereplaced before the detaining authority on 14.3.2009. The learnedAdditional Advocate General has also submitted that insofar as thebail order is concerned, it was produced before the detainingauthority by the sponsoring authority on 14.3.2009, as could be seenfrom the counter affidavit. A mere failure to file an additionalaffidavit or a covering letter along with the copy of the bail orderbefore the detaining authority would not vitiate the satisfaction ofthe detaining authority arrived on the basis of the said bail order.The learned Additional Advocate General has further submitted thatthe speech, as published in the dailies, would indicate the intentionof the detenu to form a separate Tamil State which speech by itselfwould constitute an act prejudicial to the public order and againstthe national security. 7. We have carefully considered the rival contentions. Beforewe go into the respective contentions, we may usefully refer to thesettled law on preventive detention. Our country is governed by ruleof law and every citizen is guaranteed that he/she should not bepunished without there being a proper trial and without there being averdict by a competent Court of law. An order of detention is notpunitive nor curative nor reformative, but it is only a preventiveaction. It is also distinct from criminal proceedings, as the objectis not punitive but only preventive. The power vested in theauthorities to order preventive detention is only an exception and itcould be resorted by following scrupulously the procedures whichwould safeguard the fundamental right guaranteed under Articles 21 &22 of the Constitution of India. As against the preventive detentionorders, the fundamental right guaranteed for the citizens mustprevail. Such valuable rights can only be deprived in accordance tothe procedure established by law. Generally, imprisonment withouttrial is anathema in any country which observes rule of law, but withcertain exception like detention laws. While considering thechallenge to the detention order, the Court must apply its mind as towhether the detaining authority has scrupulously followed theprocedures and any infraction or procedural lapses which ultimatelyresult in violation of the fundamental right guaranteed. https://hcservices.ecourts.gov.in/hcservices/

8. Detention order could be passed on the basis of thesatisfaction of the detaining authority arrived at by applying themind to all the materials available on record. Such satisfactioncannot be piecemeal, which may result in pre-drawn conclusion. Inthe event all relevant materials are not placed at the same time andconsiderations are made piecemeal, such process may lead to findingreasons to support the preconceived formulations. The sponsoringauthority while forwarding the affidavit dated 12.3.2009 has alsosent the materials in support of the recommendations. Admittedly,the bail order dated 14.3.2009 could not have been forwarded to thedetaining authority, as the bail order was passed only on 14.3.2009.On the above admitted factual position, this Court should find as towhether the satisfaction arrived by the detaining authority couldstand the test and the scrutiny of law to justify the same.According to the available records, the materials placed before thedetaining authority along with the affidavit of sponsoring authoritycontain more than 200 pages. Even assuming that the detainingauthority had sufficient time to scrutinise those materials to formhis satisfaction, such satisfaction cannot be called to be final topass orders till the bail order was placed on 14.3.2009. Even whenan application for bail is pending, the detaining authority couldarrive at a satisfaction that there is a possibility of the detenu tocome out on bail, as he has already filed a bail application. But onthe given case, the detaining authority had referred to the bailorder dated 14.3.2009 which was placed before him on the date ofpassing the detention order. The bail order is a relied upon documentas could be seen from the detention order. In the detention order,the sponsoring authority has stated that though the detenu wasgranted bail on 14.3.2009, he was not released, as he did not producethe sureties. Firstly the bail order was placed before the detainingauthority just before the detention order was passed. The applicationof mind relating to whether the detenu had indulged in activitieswhich are prejudicial to the maintenance of public order and if he isnot detained, he would indulge in similar activities in futurethereby he should be prevented from indulging in similar activitiesshould be supported by materials. The consideration and satisfactionmust be simultaneous and cannot be piecemeal. Insofar as thesatisfaction of the authority as to the compelling necessity toprevent the detenu, if not, the detenu may come out on bail, thereare no materials for the detaining authority to satisfy himself thatthe detenu had not produced sureties and therefore he has not comeout on bail. There is absolutely no material placed before thedetaining authority as to the fact that the detenu had not producedsureties except the bail order. In the absence of such material, thesatisfaction of the detaining authority that the detenu who was incustody on the date of the detention order could not come out on bailfor his failure to produce sureties suffers from non-application ofmind.9. Insofar as the speech allegedly made by the detenu on1.3.2009, the sponsoring authority has filed the relevant materialsincluding the paper cuttings. There are materials for the detainingauthority to satisfy himself as to those materials to form an opinionthat the detenu had indulged in the act which is prejudicial to themaintenance of public order. However, the sponsoring authority has https://hcservices.ecourts.gov.in/hcservices/ stated that "Hence his speech was allegedly to incite the public tolose the faith and allegiance to the Constitution of India andimpeach the sovereignty and integrity of India and therebyprejudicial to the maintenance of public order." To support thesecond limb of the allegation that the speech would lead to thepublic disorder to incite the public to lose faith and allegiance tothe Constitution of India and impeach the sovereignty and integrityof India, no materials were placed before the detaining authority.The speech was delivered on 1.3.2009 in a closed premises where 350students attended. No materials were produced before the detainingauthority to show that the detenu had indulged in similar activitiestill he was arrested on 7.3.2009. In the absence of any material,the satisfaction arrived by the detaining authority that in order toprevent the detenu from indulging in similar activities in future andif not prevented he may indulge in such activity, would amount tonon-application of mind and consequently would vitiate the detentionorder.10. In the judgment in Gulab Mehra v. State of U.P., AIR 1987 SC2332, the Apex Court has held that "in order to bring the act whichwill affect the public order, such order must depend upon the effectof the act on the life of the community or in other words the reachand effect and potentiality of the act if so put as to disturb ordislocate the even tempo of life of the community." A similar viewwas taken in State of U.P. v. Sanjai Pratap Gupta, (2004) 8 SCC 591.(See also Kishori Mohan Bera v. State of W.B. (1972) 3 SCC 845;Pushkar Mukherjee v. State of W.B. (1969) 1 SCC 10; Arun Ghosh v.State of W.B. (1970) 1 SCC 98; Nagendra Nath Mondal v. State of W.B.(1972) 1 SCC 498; Babul Mitra v. State of W.B. (1973) 1 SCC 393 andMilan Banik v. State of W.B.(1974) 4 SCC 540.)11. In order to clip the wings of a person involved in a caserendering himself liable for criminal prosecution, the detainingauthority must not only satisfy himself but also establish that theact of such person had affected both the public order and thesecurity of the State. There are no materials whatsoever placedbefore the detaining authority for such satisfaction except thespeech delivered by the detenu. On this ground as well, it must beheld that the detaining authority had merely accepted therecommendation of the sponsoring authority without there being anysupportive materials rendering the detention order illegal on theground of non-application of mind.12. Coming to the next contention namely, the non-supply of thewritten statement would vitiate the detention order. We are notinclined to accept the submission of the learned counsel for thepetitioner as the said document was neither placed before thedetaining authority nor was it relied upon and not even referred toin the grounds of detention. The only document relied upon in thegrounds of detention is the bail order. Nevertheless, the detentionorder would be vitiated in the event the detaining authority did notapply his mind to the contents of the bail order. Admittedly, thedetenu had been granted bail by the learned Judicial Magistrateprimarily on two grounds viz., that except the copy of the FIR andthe complaint, no document was produced before the Magistrate whenthe bail application was taken up for hearing on 14.3.2009 and there https://hcservices.ecourts.gov.in/hcservices/ was no prima facie case made out by the prosecution. Of course, itis not compulsory for the investigating officer to produce therecords before the Court at the time when the bail application isconsidered in all cases except it is required by the Court. But forconsideration of the challenge to the detention order, theobservation of the Court is relevant. When the material papers werealready available with the sponsoring authority viz., theinvestigating officer, and without producing the same before theCourt on 14.3.2009 and in fact had made a statement before the Courtthat all the material papers have been sent to Chennai, thecontention of the sponsoring authority that the material papers werealready handed over to the detaining authority throws some suspicion.The non production of these materials before the Court is one of thegrounds for grant of bail. Secondly the learned Magistrate has alsoentertained certain doubt about the complaint. Though in preventivedetention matters this Court is not competent to go into the veracityof the complaint, but certainly it would not be outside the scope ofits jurisdiction to find out whether the observations which are infavour of the detenu were considered before the detention order waspassed or not. There is a possibility that in the event the reasonsfor grant of bail were considered, the detaining authority could haverefrained from passing such an order of detention. There is noindication in the detention order as to the consideration of thecontents of the bail application, except making a reference and thattoo with a further observation that the detenu had not produced thesureties unsupported by materials. The non consideration of thecontents of the bail order would also vitiate the order of detention.In this context, we may also refer to the judgment of the Apex Courtin Union of India v. Manoharlal Narang, (1987) 2 SCC 241, where ithas been held as follows:"Non consideration of interim order whichconstituted a relevant and important material wasfatal to the subsequent detention order on theground of non-application of mind. If thedetaining authority had considered that order, onecannot state with definiteness which way hissubjective satisfaction would have reacted and itcould have persuaded the detaining authority todesist from passing the order of detention."13. It has been settled in law that if the detention order isquestioned on more than one grounds and if the Court accepts oneground of challenge for quashing the detention order irrespective ofthe failure to satisfy the other grounds, the detention order couldbe quashed. In this context, we may refer to the judgment of theApex Court in Pushkar Mukherjee v. State of West Bengal (1969) 1 SCC10. 14. As we have found the above two grounds are acceptable and onthose grounds the detention order is liable to be quashed, we are notinclined to go into the other rival contentions. 15. For the above two reasons, we are of the considered viewthat the detention order suffers from infirmity, particularly as tothe non-application of mind on the part of the detaining authority. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the habeas corpus petition is allowed, the impugnedorder of detention dated 14.3.2009 passed by the District Magistrateand District Collector, Tirupur in Cr.M.P.No.01/NSA/2009 is quashedand the detenu is directed to be set at liberty forthwith, unless heis required in connection with any other case. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssTo1. The Secretary to Government of Tamil Nadu Public (Law and Order-F) Department Fort St.George Chennai 600 0092. The District Magistrate and District Collector Tirupur District, Cotton Market Buildings Palladam Road, Tirupur, Tirupur District3. The Superintendent, Central Prison, Coimbatore.4. The Joint Secretary to Government, Public (Law & Order) Department, Fort St.George, Chennai-9.5. The Public Prosecutor High Court, Madras+ 1 CC To Mr.G.Devadoss, Advocate SR NO.16486 H.C.P.No.400 of 2009CK {CO}TP/29.4.2009.