Michel Joseph Lawrance vs District Magistrate and District Collector, Tirunelveli and another

Thanikkachalam, J.—The petitioner is the cousin brother of the detenu. The habeas corpus petition was filed to set aside the order of

detention issued under the Tamil Nadu Act 14 of 1982, hereinafter called the Act, by the first respondent-District Magistrate and District Collector

of Nellai Kattabomman District in M.H.S. CONFDL. No. 60/95 dated 30-8-1995. The detenu Stalin son of Michel is an ex-serviceman. After

retirement he came to the village. The detenu is stated to be person, who takes up public cause and a devout Catholic. In the matter of selling

marine products he used to help the fishermen by having a middleman. Therefore, enemity was kept up between him and the other villagers.

On 16-8-1996 at 8 a.m. the detenu came to Idinthakarai Meenvadi with a country-made bomb in his right hand. At that time Louis, Elango and

Susai Anthony were standing in front of the house of Franklin. The detenu by looking at them and shouted at them by saying : (vernacular matter is

omitted). The people who were standing there tried to run inside the house of Franklin after seeing this incident. The detenu looking at Louis said

that he came there only to close him. By saying this he has thrown the country-made bomb against him. The country-made bomb fell on the ground

and exploded. By looking at this violent act on the part of the detenu the public scared and they ran into their houses and closed the doors. While

the people were running like this the detenu took another bomb and threw it by saying : (vernacular matter is omitted).

That means he may not leave without killing the people who opposed to him. But that bomb was not exploded. The public thinking that their lives

are in danger nobody has come out from their houses. Thereafter the detenu left that place. Louis came out of his house after one hour. On 16-8-

1995 at about 10 a.m. he gave a complaint to Koodankulam Police Station. The complaint was registered as Cr.No. 262/95 under S. 307, I.P.C.

and Ss. 4 and 5 of the Indian Explosives Act. The detenu was arrested on 16-8-1995 and at about 16.00 hours by the Koodankulam police and

brought to the Court. He was detained in Palayankottai Central Jail. The case is now under investigation. Therefore, since the detenu was indulging

in activities which are endangering to public life and public tranquility, he was kept under Preventive Detention under S. 2(b)(f) of the Act as a

goonda. The said Stalin is now under detention in Palayankottai Central Jail. On behalf of him in Cr.M.P. No. 2757/95 a bail application was

moved before the Sessions Judge, Tirunelveli Division, 25-8-1995. It is still pending. There is possibility of the detenu out of the detention on bail.

If he comes out on bail it would be endangering public peace and tranquility. Therefore, he was kept under preventive detention.

In the writ petition among various other grounds the petitioner submitted as under : According to the petitioner, the very relevant and factual

facts which would have affected the satisfaction have not been placed or considered by the Detaining Authority before making the order of

detention. The detenu''s wife sent a detailed representation enclosing various certificates and also memorandum from various persons in the locality

of Idinthakarai to show as to how the occurrence on 16-8-1995 did not take place and the area was peaceful. Learned counsel for the petitioner

submitted that this communication was sent by registered post to the District Collector, Tirunelveli-Nellai Kattaboman District. The receipt for

sending such registration were filed, the receipts Nos. being 4145 and 4146. The registration of this letter was made in Palayankottai Post Office

on 28-8-1995.

The submissions of learned counsel for the detenu are : the representation made in the letter dated 28-8-1995 along with the affidavits from the

persons in the said locality were even through received by the District Collector - the Detaining Authority as can be seen from the receipts Nos.

4145 and 4146 were not placed before the Detaining Authority as provided under S. 3(3) of the Act. Having received the said letters and the

affidavits the Detaining Authority should have sent it to the Government before confirmation of the order. Therefore, according to learned counsel

appearing for the petitioner, the representation sent by the detenu''s wife and the affidavits filed along with the same were neither produced before

the confirmation nor before passing the order of confirmation. According to learned counsel for the petitioner, a duty is cast upon the Detaining

Authority to place these materials before the Advisory Board. It was also not done in the present case. Had the Detaining Authority placed all

these materials either before confirmation or after confirmation, that would have influenced the mind of the Detaining Authority or the Government

in not passing the order of detention. Since these materials were not placed before the authority, there is non-application of mind both in passing

the order of detention and the confirmation order. Such an action on the part of the Detaining Authority violates Article 22(5) of the Constitution of

India and thereby vitiates the order of detention. In support of his contention learned counsel appearing for the detenu drew our attentions to

Section 3(3) of the Act. Section 3(3) states :

When any order is made under this section by an officer mentioned in sub-sec. (2), he shall forthwith report the fact to the State Government

together with the ground on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such

order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State

Government.

In 1986 Cri LJ 954, in the case of Vikram Pratap Singh v. State of U.P., while considering the provisions of the National Security Act (65 of

1980), Ss. 3(4), 12(1) - detention under S. 3, a Division Bench of the Allahabad High Court held as under (at p. 956 of Cri LJ) :

Since this question has been discussed in detail in the cases cited above, it suffices to state that in this case also the non-communication of either

the identification memo itself or the result of identification of the petitioner at the test parade has afforded a legitimate ground to the petitioner to

question the approval of his detention by the State Government under S. 3(4) of the Act and confirmation thereof under S. 12(1) of the Act. The

petitioner can question the validity of the approval of the detention as well as the confirmation thereof by the State Government on the same

principle on which the order of detention itself is questioned. The principle of law laid down in this regard in Nanha Singh v. Superintendent,

District Jail, Kanpur, 1984 All LJ 898, will also apply in such a case. The approval of the petitioners'' detention accorded by the State Government

under S. 3(4) of the Act and its subsequent confirmation under S. 12(1) of the Act were consequently made mechanically. Therefore, the

continued detention of the petitioner cannot be upheld.

So also in Mannsing Babusing Thakore Vs. Commissioner of Police and Others, , while considering the provisions of S. 3(3) of the Act 16 of

1985, a Division Bench of the Gujarat High Court held (at pp. 1575 and 1576 of Cri LJ) :-

It may be mentioned that sending the copies of the grounds and other particulars, which, in the opinion of the Detaining Authority, have hearing on

the matter is not a matter of idle formality, it is a basic material on the basis of which the detention order is passed by the Detaining Authority and

the State Government has to consider the said materials before approving the order. In that view of the matter, mere intimation of the fact of the

detention order to the State Government in absence of copies of grounds and other particulars having bearing on the matter, cannot be said to be

due compliance of sub-sec. (3) of S. 3 of the Act. In that view of the matter, we are constrained to hold that in this case, the Detaining Authority

has failed to forthwith send the report along with the grounds and other materials to the State Government as required under S. 3(3) of the Act. No

explanation has been given on the point as to why they have not sent the papers before 16th and whether the delay was unavoidable. We may take

judicial notice of the fact that 13th was a closed Saturday and 14th was Sunday and, therefore, they could have prepared the papers on 15th and

dispatched the same by post or otherwise to the State Government on 15th or 16th. But, as stated above, no such case is made out by the State

Government or the Detaining Authority in the counter-affidavit nor any such case is canvassed before us by the learned Additional Public

Prosecutor with the result that there is unexplained delay which has resulted in non-compliance of the statutory mandate under S. 3(3) of the Act.

Hence the continued detention is bad and illegal.

A similar question came up for consideration before a Division Bench of this Court in 1984 Cri LJ 68, in the case of A. Vellanai v. Collector and

District Magistrate, Tirunelveli. While considering S. 11 of the Act 14 of 1982 and Art. 22(5) of the Constitution of India held (at pp. 73 and 74 of

Cri LJ) :

If the submission of the learned Public Prosecutor that the Detaining Authority is not at all obliged to forward any statement of information that

came to right subsequent to the passing of the detention order is to be accepted, then, even in a case where an order of detention was passed

based on certain materials which are subsequent to the passing of the order, found to be untrue due to the receipt of some information or

documents, the Detaining Authority would not at all be obliged to communicate the said information or documents having a bearing on the matter in

issue to the Government. In other words, the action of the Detaining Authority in withholding of subsequent information tending to falsify or belie

the earlier materials on which the earlier detention order was based, would stand unchallenged. In that case, there is the danger of the Detaining

Authority in every case withholding all materials even if they have got a vital bearing on the matter in issue in order to see that his order of detention

is sustained. This would definitely lead to a situation where the personal right and liberty of a person would be at stake at the hands of the executive

and the safeguard provided by the Constitution for the protection thereof would be impaired. Section 14 of the Act reads that without prejudice to

the provisions of S. 15 of the Tamil Nadu General Clauses Act, 1891, (Tamil Nadu Act 1 of 1891), a detention order may at any time be revoked

or modified by the State Government notwithstanding that the order has been made by an officer mentioned in sub-sec. (2) of S. 3. The revocation

or modification of an order to be passed by the Government would necessarily depend on various factors such as the order being tainted by some

illegality or the receipt of any fresh material relating to the order of detention subsequently obtained. Therefore, if the Detaining Authority withholds

any subsequent material which the said authority could have forwarded to the Government before the passing of the order of confirmation by the

Government or even thereafter, does not the detaining authority, by withholding such materials prevent the Government from effectively exercising

its statutory functions of revoking or modifying the order of detention and thereby defeat the very object of Ss. 11 and 14 of the Act ?

Likewise this court in 1989 Cri LJ 637, in the case of K. V. Jesudasan v. State of Tamil Nadu, while considering the provisions of S. 3(1)(iii), (iv)

and S. 8 of the Act 52 of 1974 held as follows (at p. 639 of Cri LJ) :-

In law, the responsibility of the Advisory Board in the scheme of preventive detention is extremely important. It is a body, independent from the

Detaining Authority, whose duty is to go into the facts in order to appreciate whether it is proper or not to keep the person concerned under

detention. The Detaining Authority has to abide by the opinion of the Advisory Board in case the Advisory Board opines that it is not necessary to

detain the person concerned. Therefore, the Detaining Authority cannot vest on himself any discretion regarding the opportunity of forwarding or

not forwarding to the Advisory Board any material which may have some relevance on the detention. The relevance is to be ascertained having

regard to the nature of document and not to its content in respect of which one may be lead to form a subjective opinion. In this case, the order of

detention clearly indicates some connection between Jhaganghir and the detenu in matter of dealing in smuggled goods and therefore whatever

reply Jhaganghir gives to the show cause notice issued to him by the Customs Department is palpably a relevant document. The failure to place it

before the Advisory Board vitiates certainly the detention order.

Thus, according to the facts arising in the present case, the wife of the detenu sent a letter by registered post with acknowledgment due to the

District Collector and District Magistrate, Tirunelveli District stating various grounds especially a statement to the effect that no instance took place

as on the date of occurrence as alleged by the respondents-police and on that date the village was peaceful. In order to support this version,

affidavits from various villagers were obtained and sent along with the letter by registered post. In order to substantiate this contention receipts

Nos. 4145 and 4146 were produced. These receipts would go to show that on 28-8-1995 the letter and affidavits were sent through

Palayankottai Post Office to the Detaining Authority via, the District Collector or the District Magistrate. The above facts would show that these

documents which are vital according to the petitioner were not placed either before passing the order of detention or before confirming the same

by the Government. If that is the fact, definitely the non-production of the documents sent by the wife of the detenu would go to show that there is

non-application of mind of the Detaining Authority in both passing the order of detention as well as the confirmation of the same by the

Government. As per the decisions cited supra, if vital documents obtained either before confirmation or after confirmation, but, those information

were not placed either before passing the order of detention or confirmation that would vitiate the order of detention. In view of the foregoing legal

position we hold that the order of detention passed on 30-8-1995 by the first respondent in MHS. CONFDL. No. 60/95 under the Act stands

vitiated and therefore, the detention order is set aside.

In the result, the writ petition is allowed, the impugned order of detention is set aside and the detenu is directed to be set at liberty forthwith if he

is not required for any other cause.

Petition allowed.