P.V. Bakthavatchalam vs Govt. of India and others

Arunachalam, J.—All these writ petitions are disposed of together by a common order since the petitioner is the same, though the detenus

are different, and the point raised is identical. Further all the detenus are stated to be involved in the same transaction, which led to the passing of

the various impugned orders of detention, sought to be quashed in these writ petitions.

All these writ petitions have been filed for the issue of ''habeas'' for the production of the detenus Arumugam, Selvam, P. V. Ramanujam, Thanu,

Dhandapani and Ramu alias Ramamoorthy, before this Court to be set free, after quashing the impugned orders of detention passed against each

one of them u/S. 3(2) of the National Security Act (Central Act 65/1980) by the third respondent, on 17-9-1991, with a view to preventing them

from acting in any manner prejudicial to the maintenance of public order.

The brief facts which led to the passing of the impugned orders of detention will have to be stated. The detenus are staunch supporters of the

Revolutionary Youth Front (R.Y.F.), a wing of the Tamil Nadu Organising Committee of CPI-ML (TNOC-CPI-ML). This organisation used to

propagate the ideals of armed revolution and it had no faith in democratic way of life. This organisation used to conduct indoor meetings and

propagate the ideals of armed revolution. Thanu, the detenu in W.P. No. 14296 of 1991 was the organiser for the Revolutionary Youth Front. The

other detenus were staunch sympathisers of this front. The detenus attended various meeting of the Revolutionary Youth Front and had spoken

about the ideologies and factors which would be ''conducive'' for the unity of the country.

In that back ground, on 7-9-1991, in the evening, with the help of Thanu (detenu in W.P. No. 14296 of 1991), the other detenus organised a

meeting under the auspices of Revolutionary Youth Front, Madurai. All the detenus spoke at this meeting justifying the murder of late Rajiv Gandhi,

former Prime Minister of India. The detenus further induced the public who attended the meeting to support the armed revolution and to fight

unitedly against the democratic Government to achieve armed revolution. They further said that armed revolution was the only way for the removal

of the democratically elected Government and none can stop armed revolution in Tamil Nadu. They also added that none can move in Tamil Nadu

now without arms because of armed revolution. On 10-9-1991 at or about 8-00 p.m. on the complaint of one Ramani who attended the said

meeting, Crime No. 974 of 1991, u/S. 124A, I.P.C. read with S. 7(1)(a) of the Criminal Law Amendment Act, was registered against Thanu

(detenu in W.P. No. 14296 of 1991), Selvan (detenu in W.P. No. 14294 of 1991), Jeevan (not a detenu) and 25 others. The detenus were

arrested two days thereafter and remanded to judicial custody. None of the detenus made any confessional statement. On the basis of the above

material, the impugned orders of detention were clamped.

Mr. P. V. Bakthavatchalam, Advocate appearing as party in person in all these writ petitions, though had raised several grounds, chose to

restrict his submissions to one single ground. That ground had been taken as ground No. 6 in the affidavits filed by him in support of these writ

petitions. The said paragraph reads as hereunder :

Copies of several facts and materials taken into consideration by the detaining authority for subjective satisfaction were not furnished to the

detenu. For example that the detenu is a ''staunch supporter of Revolutionary Youth Front (RYF)'', ''that RYF is a wing of the Tamilnadu

Organising Committee of CPI-ML (TNOC-CPI-ML)'' and the said ''Organisation used to propagate the ideals of armed revolution and it has no

faith in democratic way of life. The allegation that the detenu came into notice for his objectionable speeches which were against the Government

and inducing the public to fight against the Indian Military etc. Further that the detenu had ''attended various meetings of RYF and spoke about the

ideologies and factors which would be ''conducive'' for the unity of the country'' etc. Further even the copy of the complaint of Mr. Ramani on

which the FIR was registered was not furnished to the detenu. All the above said materials are from the assumption and presumption of the

detaining authority and not supported by any of the documents furnished to the detenu. Hence the detention is not valid as per Article 22(5) of the

Constitution.

In short, the contention was, that the grounds of detention were not supported by any material and it was apparent, that the detaining authority had

relied upon extraneous material, which had not been furnished to the detenus, to facilitate effective representations being made by them, against the

impugned orders of detention.

This ground has been met by the third respondent in paragraph 9 of his counter, which reads as follows :

As regards the averment made in ground VI of the affidavit, I submit that in the statement of witness Ramani itself it is clearly stated that the

detenus are supporters of Revolutionary Youth Front and that the detenus in their speeches have induced public to fight against the Indian Military.

A copy of the statement has been furnished to the detenus. The complaint of Ramani is embodied in the FIR and a copy of the same has already

been furnished to the detenus. Therefore, the contention that the materials are based upon assumption and presumption of the detaining authority

and they were not supported by any documents furnished to the detenus, is not correct.

Mr. B. Sriramulu, learned Public Prosecutor, while seeking to support the ""sustainability"" of these orders of detention, contended that though a

part of the grounds of detention did not have documentary support, it was a matter of inference, that the detenus by their participation in the

meeting held on 7-9-1991 had acted in a manner prejudicial to the maintenance of public order. He then contended, that even on a solitary

instance, preventive detention was feasible. He argued that the attempt to arouse the passions of the audience addressed by the detenus, cannot be

said to be unconnected with the maintenance of public order. We have carefully considered the divergent submissions made by the party in person

and the learned Public Prosecutor.

To appreciate the solitary contention advanced, it will be necessary to extract certain portions of the grounds of detention. Paragraph 2 of the

grounds reads as follows :-

Thiru Arumugham, male, aged 32/91 s/o Palaniappan Mudali now residing at 104, Perichipalayam Colony, Tiruppur. He is staunch of the

Revolutionary Youth Front (R.Y.F.) a wing of the Tamil Nadu organising Committee of CPI-ML (TNOC-CPI-ML). This organisation used to

propagate the ideals of armed revolution and it has no faith in democratic way of life. This organisation used to conduct meeting in the name of

indoor meetings and propagate the ideals of armed revolution. Thiru Arumugham had contact with Thiru Thanu, organiser of Revolutionary Youth

Front and is strong sympathiser of this Front. He had attended various meetings of Revolutionary Youth Front and spoke about the ideologies and

factors which would be ''conducive'' for the unity of the country.'' Paragraph 4 refers to the registration of the crime against all the detenus and 25

others. Paragraph 3 refers to the meeting addressed by the detenus on 7-9-1991. Paragraphs 7 and 8 read as hereunder :

By committing the aforesaid act of speech Thiru Arumugham had created a terror and panic among the public. The act of Thiru Arumugham

and his associates had created alarm, panic and a sense of insecurity in the minds of the general public and Thiru Arumugham had thus acted in a

manner prejudicial to the maintenance of public order.

From the abovesaid materials, I am satisfied that Thiru Arumugham in indulging in activities prejudicial to the maintenance of public order. I am

aware that Thiru Arumugham is in remand in the Central Prison, Madurai now and that he would be proceeded with under the normal Law. I am

satisfied that there is compelling necessity warranting the detention of Thiru Arumugham under the National Security Act, 1980 for his callous and

illegal activities with oblique motive. If he is allowed to remain at large, it will not be possible to prevent him from indulging in such activities

prejudicial to the maintenance of public order. I am satisfied that his callous and illegal activities warrant his detention under the National Security

Act, 1980.

Paragraph 2 extracted above clearly shows that the detaining authority, has categorically stated some conclusions of facts. The learned Public

Prosecutor fairly stated, that there was no material in the grounds supplied to the detenus to substantiate these conclusions of facts, but would add

that the said conclusions could be inferred on the statement of Ramani and a few others, who were in the audience, on the evening of 7-9-1991.

He also pointed out a poster exhibited at Madurai. A look at the poster only shows that at 6-00 p.m. on 7-9-1991 at the Travellers'' Bungalow

Hall, a seminar was to be held. In the end of the poster it is stated as follows :

The poster does not show that the detenus were either members of staunch supporters of R.Y.F., Madurai or were expected to address in the

seminar, on that particular evening. The statements of Ramani and a few others in the audience indicate that they have seen the posters and went

over to the venue to hear the speeches. The detenus were called upon to speak and in the said speeches, it is stated, that the detenus induced the

audience of support armed revolution. None of the statements, even remotely indicate that the detenus were staunch supporters of the

Revolutionary Youth Front which was a wing of Tamil Nadu Organising Committee of CPI-ML and that the object of the organisation was to

propagate the ideals of armed revolution, since it had no faith in democratic way of life. These statements do not show that this organisation used to

conduct indoor meetings and propagate the ideals of armed revolution. These statements are silent about the detenus having contact with Thanu,

one of the detenus, or that Thanu was the organiser of the Revolutionary Youth Front. Further, there is total absence of material of the detenu

having attended the various meetings of the Revolutionary Youth Front and having spoken about the ideologies and factors which would be

''conducive'' for the unity of the country.

It cannot be stated, that these several factors, which form part of the grounds and also appear to be the basis for the conclusions arrived at, as

well to the arrival of the subjective satisfaction, could only be taken note of as material mentioned in passing, which had no bearing whatever, to the

clamping of the impugned orders of detention. This portion of the grounds of detention clearly show, that in all possibility, the detaining authority,

had relied upon certain extraneous material, which have not been supplied to the detenus, which in turn had prevented them from making a

purposeful and effective representation. It was represented by the learned Public Prosecutor, that there was no material, which had been placed

before the detaining authority, to state the aforementioned details in the grounds of detention. If that be so, it is not possible to comprehend, how

without any material, certain conclusions have been stated by the detaining authority in the grounds. In Naresh Chandra Ganguli Vs. The State of

West Bengal and Others, which was relied upon by the learned Public Prosecutor, for the purpose, that statements calling upon persons to build

up strong anti-democratic movement and rouse the passions of the audience cannot be said to be wholly unconnected with the maintenance of

public order, the Supreme Court has stated, that the grounds which have a rational connection with the objects mentioned in S. 3 of the Preventive

Detention Act, 1950, have to be supplied to fulfil the second condition of enabling the detenu, at the earliest opportunity, to make a representation

against the order and he has to be supplied with all information as will enable him to make an effective representation. If there was infringement

either of non-informing the grounds of or non furnishing of material to make effective representation, the detenu will be justified in pleading for the

issue of habeas corpus. The Supreme Court added, ""it will not be possible for us to hold that paragraph 2 of the impugned orders of detention will

have to be treated merely as a preamble and not as grounds.

The judgment of the Supreme Court in Dwarka Dass Bhatia Vs. The State of Jammu and Kashmir, will be relevant. It states : ""that if some of

the reasons on which the order of detention have been passed were found to be non-existent or irrelevant, the Court ought to quash the order,

because it was not in a position, to know which of the reasons or the grounds, had operated on the mind of the authorities concerned, when they

decided to pass the impugned order"". In the instant case, the whole of paragraph 2 of the grounds are not based on any material and therefore will

have to be held as non-existent.

There can be no doubt that orders of detention can be passed even on a solitary incident mentioned in the grounds of detention. But, it cannot

be overlooked that the order of preventive detention is founded on a reasonable prognosis of the future behaviour of a person, based on his past

conduct, judged in the light of the surrounding circumstances. As has been observed by the Supreme Court in Mohammad Jafar Vs. Union of India

(UOI), , such past conduct may consist of single or a series of acts. The past conduct set out in the grounds of detention which must have been

gone into for the arrival of subjective satisfaction must be capable of being supported by material which was available before the detaining

authority. That is exactly what had not been done in the instant cases.

The Supreme Court had occasion to consider the reverse position in Vashisht Narain Karwaria Vs. State of U.P. and another, . The Apex

Court has stated as follows :

In the grounds of detention it was mentioned that the detenu created panic and terror at the place of auction of liquor shops. Along with the

grounds some four documents were enclosed stating that the detenu was hardened criminal, he had a gang under his control often committing

heinous crimes and that many cases against the detenu were registered in various police stations. Copies of documents were supplied to detenu

also. These extraneous matters were not referred to in the grounds of detention .......... The averments which are extraneous touching the character

of the detenu though not referred to in the grounds of detention might have influenced the mind of the detaining authority to some extent one way or

other in reaching the subjective satisfaction of the detenu. Had these extraneous materials not been placed before the detaining authority, he might

or might not have passed this order. Therefore, it could be held that the detention order is suffering from the vice of consideration of extraneous

materials vitiating the validity of the order.

The principle laid down in the said decision, squarely attracts the facts in these writ petitions, though in the impugned grounds, conclusions about

the character and antecedents of the detenus have been stated, corresponding documents had not been supplied. These averments might have

influenced the mind of the detaining authority and sans these extraneous material, he might or might not have passed, the impugned orders.

Without hesitation, we are constrained to hold, that the detention orders suffer from the vice of consideration of extraneous material not

supplied to the detenus, thereby vitiating their validity. We are unable to agree with the learned Public Prosecutor, that though material was not

available to the detaining authority, inferences will have to be drawn, from the statements of the members present in the audience, on 7-9-1991. A

look at the first information report and the statement of Ramani, even with regard to the identity of one or more of the detenus, shows total non-

application of mind by the detaining authority, even to the material placed before him.

Looked at from any angle, the impugned orders of detention cannot be sustained. The order of detention, in each one of these writ petitions, is

set aside and the respective detenus are directed to be set at liberty forthwith, unless their detentions are otherwise required. These writ petitions

are allowed.

Petitions allowed.