Noushad vs The State of Tamil Nadu

V.S. Sirpurkar, J.—This is a Habeas Corpus Petition challenging the order passed by the Commissioner of Police, Coimbatore dated

08.03.2003 under the provisions of Section 3 of the National Security Act, 1980 on the ground that it was necessary to prevent the detenu from

acting in any manner prejudicial to the maintenance of public order. Detailed grounds have been given in support of the orders, which grounds we

have been able to find only from the file produced by the learned Additional Public Prosecutor.

Very strangely, the detenu Noushad S/o. Thiru.Hassan had refused to accept the order of detention and also the grounds of detention, which

were pasted to his cell where he was lodged after being taken into custody. Needless to say that the original detention order and the grounds have

not been supplied by the learned counsel for the petitioner. It was, therefore, that we were required to go through the order on the basis of the file.

Mr.R.Sankarasubbu, learned counsel appearing for the petitioner, however, accepts that the papers relied on by the learned Additional Public

Prosecutor are at least genuine in the sense that it is the actual detention order and the grounds, which have been now supplied to us.

On that basis, learned counsel argues before us that there is total non-application of mind on the part of the detaining authority and a very valid

circumstance as of the blindness of the detenu has not been taken into consideration by the detaining authority. For that purpose, we went through

the whole grounds. The grounds suggest that the detenu Noshed, who is a native of Kerala, is a member of Peoples Democratic Party headed by

Abdul Nazar Maudani and was its Joint Secretary of Kozhikode District and he was very close to the family of said Abdul Nazar Maudani. It is,

then, pointed out that as many as four visitors had visited the said Abdul Nazar Maudani, who was lodged in Central Prison, Coimbatore, and

returned with bags in their hands and in all the bags, prohibited articles were found. In the bag of one Saleem, who was one of the persons, six

numbers of 3.6 Motorala Lithium batteries, which are being used in the cell phones, were found. There is a reference to an incident dated

26.12.2002 where Tmt.Soofia Maudani wife of Abdul Nazar Maudani tried to go inside the prison with cell phone to see her husband and when

objected by the police party, she pushed a woman Sub-Inspector of Police on duty and engaged in heated arguments with the officials, for which

an offence u/s 353 of the Indian Penal Code was registered against her. The grounds suggest that infuriated by these incidents, a conspiracy was

hatched by the said Abdul Nazar Maudani to cause damage to the Tamil Nadu State Transport Corporation buses plying in Kerala and to plant a

time-deviser bomb in Coimbatore City to terrorise the public of Coimbatore. Then there is a reference to the incident dated 30.12.2002, where on

an intimation over phone to the Office of Commissioner, a STD booth was searched wherein a black colour rexin bag was found, which was found

to contain 4 gelatine sticks, one electric detonator, one 9 volt battery connected with an improvised timer along with other items, and also

threatening messages in English given in the name of Al-Umma, Chennai and Ameer Al-Jihad, Bombay. On these basis, an offence was registered

at B-4, Race Course Police Station, Coimbatore City.

Then it is referred that one M.A.Shabir was arrested on 03.01.2003 and he gave a confession statement on 03.01.2003 where upon some

letters, papers, receipts, one ATM card, telephone directory etc. were seized from him and one Computer was also seized from Sona Travels. It

is, then, pointed out in the grounds that one Noushad, the detenu herein, came to be arrested by B-4, Race Course Police Station, Coimbatore on

06.01.2003 and his confession statement was recorded, on the basis of which a bag was seized from Kera Food Industries, Calicut containing two

covers each containing 20 numbers of print outs, similar to the one seized along with the explosive substances from the STD booth at Press Club,

Coimbatore and he was, therefore, remanded to judicial custody. It is, then, suggested in the grounds that the custody of Shabir was extended

from time to time and his confession was also recorded. A reference is then made to B-9, Saravanampatty Police Station having taken the police

custody of Noushad, the detenu herein and his confession statement was recorded on 09.01.2003 at B-4 Race Course Police Station,

Coimbatore. It is, then, suggested that the material in the said cloth bag seized from the STD booth was confirmed as gelatinous mass and being

explosive of class 3 Division 1 as defined under Schedule 1 of the Explosives Rule 1983. In paragraph 13 it is suggested that there was a

conspiracy hatched by Abdul Nazir Maudani with M.A.Shabir, Noushad and others to burn buses of Tamil Nadu State Transport Corporation

plying in Kerala by planting time deviser bomb, such as the one found at the Press Club at Avinashi Road, Coimbatore. It is suggested that this

news has created panic and the public life was disturbed because of that. It is, then, suggested that Noushad, the detenu, had accompanied

Tmt.Soofia Moudani on 26.12.2002 to meet Abdul Nazar Maudani for hatching conspiracy. All his activities are thereafter stated in paragraph 15.

In paragraph 16 a clear cut reference is made to Original Petition No.152 of 2003 filed before the High Court of Kerala by the detenu''s father

namely Hassan and a reference is also made to the counter affidavits filed on behalf of the Assistant Commissioner of Police and Inspector of

Police. It is, then, expressed that the said Noushad though in jail custody, and his application having been dismissed, he was likely to get bail after

efflux of time and therefore, there was a compelling necessity to pass orders to prevent him from acting in any manner prejudicial to the

maintenance of public order.

We have deliberately given the whole grounds, because there is one very striking factor in this detention case. At the outset, learned counsel

Mr.Sankarasubbu urged that the detenu is 80% blind, and in fact he has been given a telephone booth from the blind persons quota. He pointed

out and files a certificate before us that he is not in a position to see. Learned counsel, further, argues that the fact that the detenu was blind and

was not in a position to see is clear from the confessional statement made by him before the Police, in which itself he had claimed to be blind and

further claimed that blindness is also congenital in the sense that his father is also blind. Learned counsel, further, points out that even in the original

petition, to which a reference is made in the grounds and which document has also been relied upon by the detaining authority, there is a specific

claim that he is totally blind. Learned counsel therefore points out that in the wake of this blindness, the detaining authority was bound to consider

the fact of his blindness and therefore, is not being able to continue with his nefarious activities, if any. According to the learned counsel, this was a

very relevant fact.

As against this, learned Additional Public Prosecutor suggests that this person was working as an office boy and it could not be said that he was

a blind person. In the counter also, it is asserted that the said Noshed is not 80% blind, as claimed by him and that he was working in the Food

Industries as an office boy. Beyond this there is no assertion that he is not actually blind, excepting paragraph 6 where it is again reiterated that he

is not blind.

Now it is clearly a question of fact as to whether he is blind or not. However, there is a certificate issued to him by the Superintendent, Medical

College Hospital, Kozhikode about his being physically handicapped, wherein it is clearly suggested that his disability percentage is 80%, which is

described as severe disability. This certificate also goes on to suggest that there is total loss of vision. In the wake of the denial by the detaining

authority, it would indeed be a question of fact as to whether he is blind or not and therefore, we may not be in a position to appreciate that fact for

the reasons of his blindness alone.

However, the argument of the petitioner is undoubtedly correct when the petitioner suggested that this fact of blindness was bound to be at least

considered by the detaining authority. We have deliberately referred to the grounds in detail. In that, there is absolutely no reference to the

blindness of the detenu or the claim of his blindness also. The blindness was claimed in the original petition filed in Kerala High Court, which was

referred to in his own confession statement also and it is to be found in the remand report, because he had complained before the Judicial

Magistrate before whom he was produced that he was blind. Now in the wake of these, we are of the clear opinion that this fact or the fact of

blindness or at least his claim as blind was bound to be considered by the detaining authority and his imminent possibility of engaging himself in any

prejudicial activities endangering public order, should have been weighed against this fact of blindness or his claim of being a blind. There is nothing

in the whole order and therefore, we are constrained to say that the order is bad for non-application of mind. The claim of the petitioner was not

without any reasons. It surfaced at the very time when he was produced before the Magistrate. It also surfaced in his confession statement and

then it surfaced even in his original petition, which he had filed before the Kerala High Court. We are told at the Bar that the said petition has now

been disposed of, but the claim of blindness has not been rejected by the Kerala High court also. We have referred to that only to complete the

narration. However, the fact remains that the detaining authority has not taken into consideration either the blindness or his claim also and has not

weighed the possibility of his being able to disturb the public order with his activities vis-�-vis his blindness.

In that view the Habeas Corpus Petition is allowed. The order of detention dated 08.03.2003 is set aside. The detenu Noushad S/o. Hassan is

directed to be set at liberty forthwith, unless his detention is required in any other case.