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Judgment
Judgement pronounced by A.C. Agarwal, C J.
An order of detention issued u/s 3(2) of the National Security Act is impugned in the present petitions. The order of detention has been issued
by the Deputy Inspector General of Police, Tirunelveli, the 2nd Respondent herein. The 2nd respondent has issued identical orders of detention
directing the detention of the petitioner in H.C.P. No. 1784 of 98 as well as the petitioner in H.C.P. No.1785 of 1998. Since the points involved in
both the petition are common, the same have been heard together and are disposed of by this common order.
The impugned order of detention was issued in both the cases on 22.8.1998. The same is based on an incident which has taken place on the
2nd August, 1998 wherein both the petitioners have been charge sheeted vide Crime No. 210 of 1998 of Perumalpuram police station for the
alleged offence u/s 7(l)(a) of Criminal Law Amendment Act and Sections 4 and 5 of the Explosive Substances Act.
The facts leading to the lodging of the aforesaid charge sheet and passing of the order of detention are as follows - In the F.I.R. it is stated that
on the date of the alleged incident i.e. on 2.8.1998 at about 18:00 hours when the Inspector of Police and his party were conducting a prohibition
raid near Elanthakulam and after conducting the raid when they were proceeding to the station at about 19:15 hours near Railway Feeder Road,
they saw one Yamaha motor bike without a number plate and they attempted to search that bike. At that time near Elanthakulam Railway gate 300
feet away from the railway track, two persons viz., the petitioners herein were seen in suspicious manner and hence the Inspector of Police as also
the other policemen rounded them and on their search seized four gelatin sticks, two detonators and 25 feet safety fuse wire and one battery from
them. On enquiry they stated that they were sympathisers of Alumma organisation and one Kichan @ Buhari who was recently arrested by the
Tamil Nadu Police and in order to show their protest for the arrest of the said Kichan @ Buhari they attempted to sabotage the railway track in
order to derail Tirunelveli-Tiruchendur Passenger train. The Inspector of Police Melapalayam P.S. registered a case in Crime No. 210 of 1998
and took up investigation and arrested the petitioners and later produced them before the learned Judicial Magistrate, Tirunelveli on 3.8.1998 and
obtained orders of remand against them. Based on the aforesaid incident, the 2nd respondent herein has proceeded to issue an order of detention
on 22.8.1998.
Though the defence of the petitioners (detenus) is not relevant for determining the validity or otherwise of the order of detention, the same is
being reproduced merely in order to understand the contention advanced on their behalf viz., that vital material which was relevant for arriving at
subjective satisfaction as to whether the order of detention should or should not be passed has not been placed before the relevant authorities and
hence the detention stands vitiated both on the ground of non-application of mind as also on the ground that the petitioners have been denied their
valuable right to make an effective representation, thereby contravening the solitary provisions contained under Article 22(5) of the Constitution.
It is the case of the petitioners that they were taken to custody by the Inspector of Police, Melapalayam police station, respondent No. 6 herein,
from their houses on 25.7.1998 and 31.7.1998 respectively on the pretext of interrogation. As far as the petitioner in H.C.P. No. 1784 of 1998 is
concerned, since he did not return home, the family members met the Inspector of Police, the respondent No.6 herein and since there was no
positive response from respondent No. 6, the mother of the petitioner sent a telegram to the Deputy Inspector General of Police, the 2nd
respondent herein as well as to the Director General of Police, Tamil Nadu alleging that the petitioner had been confined illegally by the respondent
No.6 and prayed for the release of the petitioner. So also the father of the petitioner in H.C.P. No. 1795 of 1998 also sent a telegram to the
Deputy Inspector General of Police, the 2nd respondent therein and also to the Director General of Police, Tamil Nadu stating that the petitioner in
H.C.P. No. 1785 of 1998 had been confined illegally by 6th respondent and prayed for the release of the petitioner. When this process was going
On, the petitioners were suddenly shown as accused in the aforesaid Crime No. 210 of 1998 and both the petitioners were remanded to judicial
custody. On learning about the same, a representation dated 8.8.1998 was made by the mother of the petitioner in H.C.P. No. 1784 of 1998
addressed to the 2nd respondent as well as to the District Collector alleging that the petitioner had been falsely implicated. So also a representation
was made by the father of the petitioner in H.C.P. No. 1785 of 1998. As far as the said representation is concerned, the 2nd respondent made an
endorsement on 11.8.1998 directing the same to be filed. He made a further endorsement on 18.8.1998 directing that the representation be
closed. Then the 2nd respondent proceeded to issue an order of detention on 22.8.1998.
It is common ground before us that the aforesaid representation dated 8.8.1998 sent by the mother of the petitioner in H.C.P. No. 1784 of
1998 and the representation dated 11.8.1998 sent by the father of the petitioner in H.C.P. No. 1785 of 1998 were not considered by the 2nd
respondent while issuing the order of detention. The same did not form part of the grounds of detention at the time of passing the order of
detention. As a consequence a copy of the same was also not served on the detenu along with the grounds of detention. Similar is the position in
regard to the telegram sent by the mother of the petitioner in H.C.P. No. 1784 of 1998 addressed to the Director General of Police calling upon
him to intervene and direct the release of the petitioner who had been detained illegally on 25.7.1998. Similar is the position in regard to the
petitioner in H.C.P. No. 1785 of 1998. Since the grounds of detention did not contain the aforesaid representation as also the aforesaid telegram,
the same have not been sent by 2nd respondent to the State Government along with the copy of the order of detention and the grounds of
detention as required u/s 3(4) of the Act.
The short question that has been canvassed before us is as to whether the non-consideration of the representation and telegram by the detaining
authority before arriving at the subjective satisfaction in regard to the passing of order of detention would vitiate the order of detention. Further
question which arises for our consideration is as to whether the non-furnishing of the said documents to the petitioners and thereby depriving the
right of the petitioners to make an effective representation as required under Article 22(5) of the Constitution would vitiate the order of detention
and further as to whether the non-forwarding of the aforesaid documents to the State Government as required u/s 3(4) of the Act will have the
effect of vitiating the order of detention.
The case which has been made out in the aforesaid representation and the telegram is the total denial of the incident on 2.8.1998 which has
culminated in the filing of the charge sheet under Crime No. 210 of 1998. According to the prosecuting agency, the incident in question had taken
place on 2.8.1998 and the petitioners were involved in the said incident. The case of the prosecution is that the petitioners were arrested only on
2.8.1998 in respect of the offence committed by them on that day. As against this, in the representation as also in the telegram sent on behalf of the
petitioners, which has been duly received in the office of the Director General of Police and form part of the records of the case, it has been alleged
that no incident as alleged had taken place on 2.8.1998 arid the petitioners had already been taken into custody on 25.7.1998 and 31.7.1998
respectively. The question that has to be decided is as to whether this is a relevant material to consider before arriving at subjective satisfaction
whether to or not to issue an order of detention. In our considered view, the aforesaid material is a crucial material which has to be taken into
consideration for deciding as to whether to pass or not to pass an order of detention. It may be that the detaining authority may after due
consideration of the aforesaid material still comes to a conclusion that this is a fit case for passing an order of detention after finding that the case
made out in the representation and the telegram as concocted and false. However, it cannot be said that the said documents are immaterial for
arriving at the aforesaid subjective satisfaction. It may be that the detaining authority might have been persuaded on consideration of the aforesaid
documents to hold that the presence of the petitioners at the time of the alleged offence on 2.8.1998 becomes doubtful and might have been
persuaded not to pass an order of detention. As a consequence we are constrained to hold that the order of detention issued by the 2nd
respondent suffers from vice of non-application of mind on account of the failure to consider the material piece of evidence and hence the same is
liable to be set aside on the ground.
Similarly the said material has not been furnished to the petitioners, thereby impairing their right to make proper and effective representation, the
right guaranteed under Article 22(5) of the Constitution"". Since the right of the petitioners to make an effective representation has been taken away,
the impugned order of detention is liable to be quashed and set aside on this ground also.
Similar is the position in regard to the non-forwarding of the aforesaid material to the State Government. The said representation though made
anterior in point of time to the passing of the impugned order of detention, the same in view of the decision of this court in the case of Mrs. Shanthi
v. State of Tamil Nadu and another in H.C.P. No. 656 of 1998 decided by T. Jayarama Chouta and V. Bakthavatsalu, JJ. on 17.9.1998 are
relevant material piece of evidence to be sent to the Government, for the Government to take a decision u/s 3(4) of the Act whether to confirm or
not to confirm the order of detention. For the above said reasons, the impugned orders of detention are liable to be quashed and set aside.
Accordingly both H.C.Ps are allowed. The impugned orders of detention are thus quashed and set aside. The petitioners (detenus) are directed to
be set at liberty forthwith unless they are required in some other case.