S. Renuka v. The State of Tamil Nadu

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.891 of 2007S. Renuka.. PetitionerVs1. The State of Tamil Nadu rep. by its Chief Secretary Government of Tamil Nadu Public (L&O) Department Fort St. George Chennai 600 009.2. The Commissioner of Police Tiruchirapalli City Tiruchy District.3. The Union of India rep. by its Secretary to Govt. of India Ministry of Home Affairs Department of Internal Security North Block, New Delhi-1... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus to call for the records relating toimpugned order in CPO/TC/IS/NSA/DO/No.14/2007 dated 4.5.2007 on thefile of the Second Respondent herein and quash the same as illegaland direct the respondents to produce the detenu Sukumar, Son ofDhamodaran aged about 38 years now confined at Central Jail, Trichybefore this Court and set him at liberty.For Petitioner : Mr.R.SankarasubbuFor Respondent-3: Mr.Y.Bhuvanesh Kumar, SCGSCFor Respondents-1&2 : 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 4.5.2007 passed by the secondrespondent herein in CPO/TC/IS/NSA/DO/No.14/2007 against one Sugumar,son of Dhamotharan, in exercise of the powers conferred under subSection (2) of Section 3 of the National Security Act, 1980 (CentralAct 65 of 1980) read with orders issued by the Government inG.O.Ms.No.535 Public (Law and Order-F) Department dated 11.4.2007under sub-section (3) of Section 3 of the Act, is being challenged inthis petition by the wife of the said Sugumar, seeking for theissuance of a writ of habeas corpus to call for the records inconnection with the detention order made inCPO/TC/IS/NSA/DO/No.14/2007 dated 4.5.2007, quash the same and todirect the respondents to produce the detenu Sugumar, now detained inCentral 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 was foundin a suspicious manner and a sum of Rs.10 lakh was recovered. Hecould not account for possession of such amount, nor he could accountfor his presence at the place in the early morning and also he failedto produce valid document. Thereafter, he was arrested and hisconfession statement was recorded. In the confession, he stated thatone Ragulan @ Antony, a known LTTE Cadre, procuring and smugglingexplosive materials and other essential commodities from the soil ofIndia to Srilanka, had given him the money with an instruction tohand over the same to a person in Madurai for procuring iron balls(for being used to make explosives and bombs). The said Arulseelanfurther confessed that he had already given Rs.10 lakhs on a previousoccasion to a person in Madurai as instructed by Ragulan @ Antony, toprocure iron balls for LTTE, though he was aware that theorganisation was banned in India. Later, it was known that theamount of Rs.10 lakh was brought by one of the accused Pradheepan @Thillai @ Dheepan, who received the amount from another accusedIdayathullah of Chennai and handed over to Ragulan @ Antony at thehouse of Arulseelan. 2.2. A case was registered in Crime No.1 of 2007 under Section102 Cr.P.C., Section 120-B I.P.C., Sections 10 and 13(1)(2) ofUnlawful 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. Onthe basis of his voluntary confession statement, police partyproceeded to Perambalur and recovered 4.5 tonnes of iron balls meantfor despatch to LTTE, a banned outfit in India, and arrested his https://hcservices.ecourts.gov.in/hcservices/ associates Pradheepan @ Dheepan @ Thillai and Bakeerathan, both ofthem are LTTE cadres and Idayathullah of Chennai on 7.3.2007. 2.3. Enquiry revealed that the accused Sathish procured lathemachine and iron balls and hoarded them in a go-down at Chennai withthe help of one Sugumar, the detenu herein. During investigation,the Inspector of Police arrested the detenu on 29.3.2007, recordedhis confession statement and remanded him to judicial custody. 2.4. The other recitals in the grounds of detention indicate theprocurement of iron balls, stocking of such materials in some placesand sending those materials to Sri Lanka. On the basis of theabovesaid facts, the detaining authority has concluded:"9. Hence, I am satisfied from the materialsplaced before me in the above case that the accusedSugumar has knowingly helped the LTTE, a bannedorganisation in India, for smuggling the procuredmaterials to Srilanka clandestinely and thereby heacted in a manner prejudicial to the security of theState, the relations of India with foreign country andmaintenance of public order.10. 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.2.5. The detaining authority, the second respondent herein,taking note of the above ground case and having satisfied that theactivities of the said Sugumar are prejudicial to the security of theState, the relations of India with foreign country and maintenance ofpublic order and that there is compelling necessity to detain himunder Section 3(2) of the National Security Act 1980 (Central Act 65of 1980) (hereinafter referred to as 'the Act') 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 hisdetention.3. The learned counsel appearing for the petitioner, invitingour attention to the order of detention, which has been passed by theCommissioner of Police under Section 3(3) of the Act, contends thatthe impugned order of detention was passed on the ground that thedetenu had acted in a manner prejudicial to the security of theState, the relations of India with foreign country and maintenance ofpublic order. The act of prejudicial to the relations of India withforeign country attracts Section 3(1) of the Act, but not Section 3 https://hcservices.ecourts.gov.in/hcservices/ (2) or 3(3) of the Act. It is argued that as per Section 3 of theAct, the power to detain the detenu from acting in a mannerprejudicial to the relationship of India with a foreign country,under the Act, is vested only with the Central Government or theState Government under Section 3(1) and (2) of the Act, but not withthe detaining authority, viz., the Commissioner of Police, as theCommissioner of Police has not been delegated with such power to dealwith matters coming within the scope of Section 3(1) of the Act. 4. At this juncture, it would be apposite to refer Section 3 ofthe Act, which reads as under.3. Power to make orders detaining certain persons:-(1) The Central Government or the State Governmentmay:- (a) if satisfied with respect to any person thatwith a view to preventing him from acting in any mannerprejudicial to the defence of India, the relations ofIndia with foreign powers, of the security of India, or(b) if satisfied with respect to any foreigner thatwith a view to regulating his continued presence inIndia or with a view to making arrangements for hisexpulsion from India, it is necessary so to do, make an order directing thatsuch person be detained.2) The Central Government or the State Governmentmay, if satisfied with respect to any person that witha view to preventing him from acting in any mannerprejudicial to the security of the State or from actingin any manner prejudicial to the maintenance of publicorder or from acting in any manner prejudicial to themaintenance of supplies and services essential to thecommunity it is necessary so to do, make an orderdirecting that such person be detained....(3) If, having regard to the circumstancesprevailing or likely to prevail in any area within thelocal limits of the jurisdiction of a DistrictMagistrate or a Commissioner of Police, the StateGovernment is satisfied that it is necessary so to do,it may, by order in writing, direct, that during suchperiod as may be specified in the order, such DistrictMagistrate or Commissioner of Police may also, ifsatisfied as provided in sub-section (2), exercise thepowers conferred by the said section:Provided that the period specified in an order madeby the State Government under this sub-section shallnot, in the first instance, exceed three months, butthe State Government may, if satisfied as aforesaidthat it is necessary so to do, amend such order toextend such period from time to time by any period not https://hcservices.ecourts.gov.in/hcservices/ exceeding three months at any one time."5. On perusal of the entire materials placed before us, we findsome force in the contention raised by the learned counsel for thepetitioner. The materials relied on by the detaining authority wouldshow 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 the statute,the authorities cannot pass an order of detention, as otherwise, itwould offend Articles 21 and 22 of the Constitution of India. Weare, therefore, satisfied that the impugned order of detention dated4.4.2007 lacks jurisdiction.7. That apart, even with regard to the ground that the detenu hadacted in a manner prejudicial to the maintenance of the public orderfor having knowingly helped the LTTE, a banned organisation in India,for procuring materials and smuggling them to Srilanka clandestinely,in our considered opinion, such assistance by the detenu to the LTTE,a banned organisation, for illicit transportation of the iron ballsused for bombs, by itself, would not amount to an act prejudicial tothe maintenance of the public order, nor would amount to pose threatto the security of the State as long as they are not used in India.Therefore, both the grounds relied on by the detaining authority forpassing the impugned detention order 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.263of 2007, dated 14.9.2007 (Bhakeerathan @ Eelavan v. State of TamilNadu, 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 dated 4.5.2007is set aside and the habeas corpus petition is allowed. The detenu,Sugumar, is directed to be released forthwith unless his presence isrequired in connection with any other case. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ATRTo1. The Chief Secretary State of Tamil Nadu Public (L&O) Department Fort St. George Chennai 600 009.2. The Commissioner of Police Tiruchirapalli City Tiruchy District.3. The Secretary to Govt. of India Union 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.6. The Joint Secretary to Government, Public [Law and Order] Department, Fort St. George, Chennai 9. + 1 CC To Mr. Y.Bhuvanesh Kumar, Advocate SR NO.68766H.C.P.No.891 of 2007ku[co]gp/5.1.