Ravi and etc. vs The Government of Tamil Nadu and other

Venkataswami, J.—In these two writ petitions, the petitioners who have been detained under Tamil Nadu Act 14 of 1982 as bootleggers,

have challanged their detentions, and they pray for quashing the orders of detention and consequentially for their release.

Though number of points were raised in the affidavit as well as advanced before us, ultimately it was found that one common question of law

survives for our detailed consideration.

The admitted facts are, the Detaining Authority, who is the same in both the cases, has stated in the grounds of detention that the individual to be

detained in each case (petitioners herein) was on remand. This statement of fact finds a place in the paragraph of the detention order in which the

Detaining Authority has arrived at the subjective satisfaction as regards the compelling necessity to clamp orders of detention on the said

individuals. It is again common ground that except the remand application, on order of remand as such passed by a Judicial Magistrate was placed

before the Detaining Authority. The Paragraph 4 of the grounds of detention in W.P. No. 9240 of 1992 reads as follows :-

I am aware that Thiru Ravi is on remand and there is imminent possibility that he may come out of court bail, for the offence u/s 4(1)(i) & 4(1-A)

(ii) T.N.P. Act r/w 328, I.P.C. If he comes out on bail, he would indulge in further activities which would be prejudicial to maintenance of public

order. Further, the recourse to normal criminal law would not have the desired effect of preventing him from indulging in prejudicial activities.

Therefore, I am of the view that there is compelling necessity to detain him with a view to preventing him from acting in any manner prejudicial to

the maintenance of public order and I am satisfied that Thiru Ravi warrant his detention under the Tamil Nadu Act 14, 1982.

Similarly, in W.P. No. 9346 of 1992, paragraph 5 in the grounds of detention reads as follows :-

I am aware that Thiru Abdul Majeed is on remand and he has imminent possibility to come out on bail for the offences u/s 4(1)(i) r/w 4(1-A)(ii)

Tamil Nadu Prohibition Act and 328, I.P.C. If he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance

of public order. Further, the course to normal criminal law would not have the desired effect of effectively preventing him from indulging in activities

prejudicial to the maintenance of public order and therefore, I am of the view that there is a compelling necessity to detain him with a view to

preventing him from acting in any manner prejudicial to the maintenance of public order. However, I am satisfied that the activities of Thiru Abdul

Majeed warrant his detention under the Tamil Nadu Act 14 of 1982.

The Common question of law that has been raised by the learned counsel appearing for the petitioners in both the cases is, that for arriving at a

subjective satisfaction as regards the compelling necessity to clamp orders of detention under Tamil Nadu Act 14 of 1982, judicial orders passed

on remand applications or atleast substance of the same should have been placed before the Detaining Authority, and the failure to do so vitiates

the detention order. Learned counsel for the petitioners cited number of Authorities on the aspect of and consequence of non-placing of vital

documents before the Detaining Authority.

Mr. I Subramaniam, learned Additional Public Prosecutor, in answering the above contention, submitted that it is not necessary that the judicial

order of remand should be placed before the Detaining Authority to enable him to arrive at subjective satisfaction on the question of compelling

necessity. He further submitted after perusing ............ the records that an affidavit of Sponsiring Authority containing the fact of remand was

available before the Detaining Authority and that is sufficient material to support the statement of Detaining Authority regarding the fact of remand.

He also submitted that it is not necessary for the respondents to supply all the documents to the detenu. In this connection, he placed heavy

reliance on a recent judgment of the Supreme Court in Smt. Hawabi Sayed Arif Sayed Hanif Vs. L. Hmingliana and others, . He also placed

reliance on a Division Bench judgment of this Court in Writ Petn. Nos. 7092 and 7093 of 1991 (Michael v. State of Tamil Nadu order dated 11-

10-1991) in which the Division Bench has followed two earlier judgments of the Supreme Court, namely, Abdul Sattar Abdul Kadar Shaikh v.

Union of India reported in 1990 SCC (Cri) 242 and Kamarunnissa and Others Vs. Union of India and another, .

We have considered the rival submissions.

Before discussing the matter further, we would like to point out that the grounds of detention in Writ Petition No. 9346 of 1992, in particular

paragraph 5 (extracted above) would raise a reasonable doubt whether the Detaining authority had genuinenely applied his mind before passing the

order. If the portion underlined in paragraph 5 of the grounds of detention (extracted above) had been noticed by the Detaining Authority, he

would not have allowed that mistake to remain in the order. The same Officer, in W.P. 9240 of 1992, in paragraph 4 of the grounds of detention,

has expressed the same opinion by putting it correctly. Be that as it may. We proceed further.

In Smt. Hawabi Sayed Arif Sayed Hanif Vs. L. Hmingliana and others, , paragraph 33 reads as follows (para 31, at p. 180 of Cri LJ) :-

This contention relates to the non-placing of the full text of the remand order of Sayed Arif Sayed Hanif before the detaining authority. A similar

contention was raised before the High Court, but it was rejected. The remand application No. 981/90 dated 28-9-90 was made in respect of the

crew members. A copy of this remand application is annexed to the grounds of detention. At the foot of the remand application, there is an

endorsement to the effect that all the accused produced before the Court were remanded in judicial custody till 11-10-1990. Though the full text of

the remand order was not placed before the detaining authority, the substance of the same was placed. We are in complete agreement with the

High Court that the non-placing of the remand order before the detaining authority has in no way affected either the subjective satisfaction of the

authority or the detenu''s right to make a detailed representation.

This very same paragraph was relied on by the learned counsel for the petitioners as well to argue that in that particular case, the substance of the

remand order was placed before the Detaining Authority. But, in the cases on hand, even that was not placed before the Detaining Authority and,

therefore, there was no material at all to state that the individuals to be detained were on remand. A copy of the affidavit relied on by the learned

Additional Public Prosecutor had not been supplied to the detenu and, therefore, that cannot be relied upon. As a matter of fact, learned counsel

for the petitioners placed reliance on some unported judgments of this Court, to contend that the non-supply of such affidavits vitiates the detention

order vide Order in W.P. 12161 of 1986 (M. Krishnan v. The Government of Tamil Nadu - order dated 10-2-1987), Order in W.P. 9989 of

1986 (K. Kasi v. The State of Tamil Nadu - Order dated 23-2-1987) and W.P. No. 5593 of 1986 (C. Jayapal v. State of Tamil Nadu - Order

dated 23-10-1986).

We would like to decide the issue on the basis of the decisions cited by the learned Smt. Hawabi Sayed Arif Sayed Hanif Vs. L. Hmingliana

and others, is distinguishable on the ground that in that case, the substance of the remand order was placed before the Detaining Authority, which

was not done in the cases on hand.

As regards the affidavit, the learned Additional Public Prosecutor placed reliance on a Division Bench judgment of this Court in W.P. No. 1201

of 1983 (P. Mohammed Ismail v. The State of Tamil Nadu - order dated 30-3-1983), to contend that affidavit is to be construed only as a letter

of the Sponsoring Authority sent as an enclosure to the documents; and that therefore, the non-supply of that affidavit is not fatal. He also

submitted by placing reliance on the decision of this Court in W.P. Nos. 7092 and 7093 of 1991 (referred to supra), that it is not necessary to

supply all the documents to the detenu except those on which the Detaining Authority placed reliance, to sustain the grounds of detention. Let us

now see whether these two judgments help the respondents.

It is true, in W.P. 1201/83 (supra), S. Natarajan, J., as he then was, presiding over the Bench, has opined on the nature of an affidavit of the

Sponsoring Authority as follows :-

.......... we have been taking the view that generally an affidavit filed by a police officer before the detaining authority to take action under the

provisions of the Act for detaining illicit distillers, goodas, etc. can only constitute a covering letter for the materials sent to the detaining authority

for consideration and for deciding the question whether an order of detention against the bootlegger or goonda should be passed or not.

The same Division Bench, after citing an earlier decision in W.P. No. 39 of 1983 (Thangathai v. State of Tamil Nadu - order dated 2-3-1983),

held as follows :-

........... affidavits filed by the Police Inspectors can only constitute covering letters and they cannot be termed as ""materials"" which would have

influenced the mind of the detaining authority to pass an order of detention. It is needless to say that a detaining authority will pass an order of

detention only on the basis of the materials placed before him and will not allow his mind to be influenced by what is set out by the Inspector of

Police in an affidavit sent along with the materials against the bootlegger or goonda for being considered by the detaining authority ........

It is clear from the later portion of the extract that the Division Bench was of the view that the affidavit was only a letter and that cannot be taken as

a ""material"" placed before the Detaining Authority. If that be so, there is no material in these cases before the Detaining Authority to indicate that

the individuals to be detained were on remand. There cannot be any two opinion on the necessity of application of mind on the question of

compelling necessity to claim orders of detention by invoking Act 14 of 1982. The Supreme Court, in Kamarunnissa and Others Vs. Union of

India and another, , observed as follows (para 13) :-

From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be

passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable

material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released, he would in all

probability indulge in prejudicial activity and (3) if it is felt essential to detain him from so doing. If the Authority passes an order after recording his

satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if

bail is granted notwithstanding such opposition to question it before a higher Court.

As per the above ratio laid down by the Supreme Court, in cases where the person was in custody, the Detaining Authority is expected to have

reason to believe on the basis of reliable materials placed before him that there is a real possibility of the individual to be detained being released on

bail, and that on being so released, he would, in all probability, indulge in prejudicial activity. Further, the Detaining Authority must feel that it is

essential to detain him to prevent him from so doing. To satisfy the above test, there must be material. In this case, if the affidavit is not to be taken

as a material as per the ratio in W.P. 1201/83 (supra), then there is no other material for the Detaining Authority to state that the individual to be

detained was actually in custody and to apply his mind further, as held by the Supreme Court in the above decision Kamarunnissa and Others Vs.

Union of India and another, . Further, if the affidavit is not to be treated as a material, then the non-supply of the same is of no consequence. On

the other hand, if the affidavit is to be treated as a material, then that material which is the basis for the Detaining Authority to proceed further to

find out whether there is compelling necessity to detain the individual notwithstanding the person being already in custody, cannot be considered as

a document not relevant. In any view of the matter, the reliance placed on the Division Bench judgment in W.P. Nos. 7092 and 7093 of 1991

(referred to supra) that all documents need not be given is of no avail to the learned Additional Public Prosecutor.

The learned Additional Public Prosecutor also brought to our notice the view taken by the Supreme Court in Smt. S. Gayathri Vs.

Commissioner of Police, Madras and Others, , to the effect that the affidavit of the Sponsoring Authority is only in the nature of a letter and,

therefore, a copy of the same need not be furnished to the detenu. We have already seen that a Division Bench of this Court, in W.P. 1201 of

1983 (referred to supra), has taken the same view, and the same Division Bench has held further that such an affidavit cannot be treated as a

material placed before the Detaining Authority while arriving at subjective satisfaction. Therefore, no assistance can be derived by merely

contending that the affidavit is only a letter and non-supply of the same will not vitiate the detention, particularly when the remand order or

substance of the same had not been placed before the Detaining Authority.

In the light of the above discussion and also in the light of the decision of the Division Bench of this Court in W.P. No. 1201 of 1983 (referred

to supra), we hold that there was no material before the Detaining Authority to state that the persons to be detained were on judicial custody. If the

statement that the persons to be detained were in judicial custody cannot be sustained for want of materials, the further discussion on the basis that

the persons to be detained were on judicial custody will fall to the ground. If these two vital statements are removed from the detention order for

reasons stated above, the subjective satisfaction arrived by the Detaining Authority to clamp the order of detention on the persons to be detained

being inextricably interconnected with the above statements, will also vanish in thin air for want of materials. The logical consequence of this will be,

the detention order cannot be supported.

In the result, the writ petitions are allowed. The detention orders are quashed. The respondents are directed to release the detenus forthwith

from custody unless they are liable to be detained in custody for some other cause.

Learned Additional Public Prosecutor, immediately after the pronouncement of the order in these writ petitions, orally sought leave to appeal to

Supreme Court, under Art. 134A of the Constitution of India.

We have decided in these cases that the non-placing of the remand order or substance of the same before the Detaining Authority vitiates the

detention order for reasons stated in our order. We have also held that the affidavit of the Sponsoring Authority giving the fact of the persons to be

detained being in judicial custody is only in the nature of a letter and, therefore, cannot be treated as a material placed before the Detaining

Authority. Further, we have held that the non-supply of such affidavit is of no consequence.

In our opinion, these questions are likely to recur frequently and they need a decision by the Supreme Court. Accordingly, we grant leave under

Art. 133(1)(b) of the Constitution of India.

Order accordingly.