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Judgment
The brother of the detenu is the petitioner herein. Under the impugned order of detention dated 26.5.1999 passed by the second respondent
herein - the District Collector and the District Magistrate, Villupuram District, Villupuram, the detenu Thiru Panneer (a) Panneer Selvam was
detained as a Goonda as contemplated under the Tamil Nadu Act 14 of 1982.
The detenu is having four adverse cases. The ground case, pursuant to which the impugned order of detention was passed, took place on
18.5.1999. On 18.5.1999, the Sub-Inspector of Police, Villupuram Town Police Station, was on special duty alongwith his party to secure the
detenu Thiru Panneer (a) Panneer Selvam - the absconding accused in Crime No.435 of 1999 on the file of the same Police Station. The said
Crime No.435 of 1999 was registered against the detenu for the offences under Sections 427, 294(b), 506(ii) and 307 of the Indian Penal Code.
At about 9.15 AM, the said Sub- Inspector received information about the detenu, and went to East Pondy Road, Panampattu Pattai junction
where the police party saw the detenu and immediately, the detenu was surrounded. On seeing the police party, the detenu took out a knife and
threatened the police officials and terrorised them. He also attempted to assault the Sub-Inspector with a knife uttering the following words :
The detenu also threatened the public by showing a knife and picked up the soda bottles from a nearby bunk shop and hurled the same on the
road. The bottles fell on the road, broken into pieces and scattered all over the road. Due to act of the detenu, the buses plying on the road were
stopped and the entire traffic was dislocated. On seeing the atrocious activities of the detenu, the nearby shop keepers became panic and closed
down their shops. The general public, who are at the spot, ran for shelter out of fear and danger. However, the detenu was arrested on 18.5.1999
at 3.30 p.m. at Keelperumbakkam near Throwpathy Amman temple. In fact, before his arrest, a case was registered against the detenu in Crime
No.441 of 1999 for the offences u/s 353, 366, 427, 506(ii) and 307 of the Indian Penal Code. After the arrest, the detenu was remanded to
judicial custody and lodged in Sub-Jail, Villupuram and later transferred to Central Prison, Cuddalore.
On the basis of the above facts, the second respondent herein has passed the impugned order of detention detaining the detenu as a Goonda as
contemplated u/s 2(f) of the Tamil Nadu Act 14 of 1982. The case was listed before the Bench consists of S.Jagadeesan. J and A.Raman. J on
7.1.2000. Learned counsel for the detenu contended that the intimation sent to the family members mentions the period of detention i.e. one year
and as such, the impugned order of detention is liable to be set aside on the ground of non application of mind, as the detaining authority has no
power or authority to specify the period of detention. He relied upon the judgment of the Division Bench consists of T.Jayarama Chouta, J and
V.Bakthavatsalu, J in H.C.P.No.869 of 1997 wherein the learned Judges considered the identical question and held that because of the mentioning
of the period of detention in the intimation to the family members, the impugned order of detention is vitiated on the ground of non application of
mind. The same view was expressed by another Division Bench consists of T.Jayarama Chouta, J and A.Raman, J in H.C.P.No.1275 of 1998
dated 12.11.1998 wherein the learned Judges had followed the earlier judgment in Rajappa''s case, H.C.P.No.869 of 1997. The learned
Additional Public Prosecutor relied upon the judgment of another Division Bench consists of N.K.Jain.J and M.Karpagavinayagam, J in N.Kumari
v. State of Tamil Nadu, H.C.P.No.128 of 1998 dated 9.11.1998 wherein the learned Judges have also considered the identical question.
However, after referring to some of the Supreme Court judgments, the Division Bench consists of N.K.Jain, J and M.Karpagavinayagam, J
disagreed with the judgment of the other Division Bench in Rajappa''s case, H.C.P.No.869 of 1997. In fact, the judgment in N.Kumari''s case,
H.C.P.No.128 of 1998 had been referred by the Division Bench in Palaniammal''s case, H.C.P.No.1275 of 1998 and however, the learned
Judges have held that the decision in Rajappa''s case, H.C.P.No.869 of 1997 has not been over-ruled and the view expressed by the Division
Bench in Palaniammal''s case was in respect of the said case having regard to the facts and circumstances. After considering the above referred to
three judgments of the various Division Benches, which are almost on identical question and considering the conflicting views in H.C.P.No.1275 of
1998, which is wrongly mentioned as H.C.P.No.4276 of 1998 in the order of reference and H.C.P.No.128 of 1998 expressed by the Division
Benches in two of the cases, the Division Bench consists of S.Jagadeesan, J and A.Raman, J directed the Registry to place the papers before the
Honourable The Chief Justice requesting the Honourable The Chief Justice to refer the matter to the Full Bench in order to have consistency. On
the direction of the Honourable The Chief Justice, the registry has placed this petition before this Full Bench.
Learned counsel for the petitioner contended that two Division Benches of this Court have held that the order of detention is vitiated, if the
communication to the family members mentions the period of detention. When the detaining authority has no power or jurisdiction to specify the
period of detention, the communication sent to the family members also should not contain the period of detention. If the communication contains
such period of detention, it will amount to non-application of mind by the detaining authority and hence, the impugned order of detention is liable to
be set aside. The mentioning of the period in the communication to the family members would also reveal that the detaining authority had
predetermined the issue regarding the period of detention and hence, the order of detention cannot be sustained. The other Division Bench consists
of N.K.Jain.J and M. Karpagavinayagam, J in their judgment in H.C.P.No.128 of 1998 has not properly considered the judgment of the another
Division Bench consists of T.Jayarama Chouta, J and V.Bakthavatsalu, J in H.C.P.No.869 of 1997 and in all probabilities, the judgments in
H.C.P.Nos.869 of 1997 and 1275 of 1998 have to be accepted.
On the contrary, the learned Public Prosecutor contended that the impugned order of detention does not mention the period of detention. Only
the communication sent to the family members mentions the period of detention. When the detaining authority is aware that he cannot specify the
period of detention in the order of detention and carefully passed the order of detention without specifying the same, it cannot be said that the mere
mention of the period of detention in the communication to the family members would vitiate the order, of detention. The communication to the
family members is only for the purpose of informing them about the detention of the detenu and the place of his detention to enable them to meet
the detenu and to make necessary arrangements to send the representation, if any. The communication to the family members, in any sense, cannot
be the basis for the order of detention and as such, mentioning of the period in the communication to the family members will not vitiate the order of
detention on the ground of non application of mind. The Apex Court has held that neither the mentioning of the period of detention by the detaining
authority nor the non mentioning of the same in the order of detention would vitiate the order of detention. When that be so, it cannot be said that
the mentioning of the period of detention in the communication to the family members would vitiate the order of detention.
In view of the only technical plea raised by the learned counsel for the petitioner, it is unnecessary for us to elaborately discuss the facts. For
considering the issue raised by the learned counsel for petitioner, it is necessary to refer to certain relevant provisions of the Act 14 of 1982. viz.
Sections 3(3), 10, 11, 12, 13 and 14 of the said Act read thus:
i. Section 3(3) of the said Act:
When any order is made under this section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the State Government
together with the grounds 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.
ii. Section 10 of the said Act:
In every case where a detention, order has been made under this Act, the State Government shall, within three weeks from the date of detention
of a person under the order, place before the Advisory Board constituted by them u/s 9, the grounds on which the order has been made and the
representation, if any, made by the person affected by the order, and in the case where the order has been made by an Officer, also the report by
such officer under Sub-section (3) of Section 3.
For appropriate appreciation of the question involved in this case, it is worthwhile to refer to the principles laid down by the Supreme Court.
In the decisions reported in the case of Fagu Shaw Vs. State of West Bengal, AIR 1974 SC 6131 and in the case of Fendan Naha Vs. State
of West Bengal, , the Supreme Court has held that, the order of detention can mention the period of detention and that will not vitiate the order of
detention. Similarly, in the decision reported in the case of Devaki v. Govt of Tamil Nadu and others, 1990 SCC (Crl.) 348. the Apex Court has
taken the view that: The non mentioning of the period in the order of detention is not fatal to the said order of detention and the order cannot be set
aside in the following terms:
Provisions of the aforesaid sections are inbuilt safeguards against the delay that may be caused in considering the representation. If the time frame,
as prescribed in the aforesaid provisions is not adhered to, the detention order is liable to be struck down and the detenu is entitled to freedom.
Once the order of detention is confirmed by the State Government, maximum period for which a detenu shall be detained cannot exceed 12
months from the date of detention. The Act nowhere requires the detaining authority to specify the period for which the detenu is required to be
detained. The expression ""the State Government are satisfied that it is necessary so to do, they may, by order in writing direct that during such
period as may be specified in the order"" occurring in Sub-section (2) of Section 3 relates to the period for which the order of delegation issued by
the State Government is to remain in force and it has no relevance to the period of detention. The legislature has taken care to entrust the power of
detention to the State Government, as the detention without trial is a serious encroachment on the fundamental right of a citizen, it had taken further
care to avoid a blanket delegation of power, to subordinate authorities for an indefinite period by providing that the delegation in the initial instance
will not exceed a period of three months and it shall be specified in the order of delegation. But if the State Government on consideration of the
situation finds it necessary, it may again delegate the power of detention to the aforesaid authorities from time to time but at no time the delegation
shall be for a period of more than three months. The period as mentioned in Section 3(2) of the Act refers to the period of delegation and it has no
relevance at all to the period for which a person may be detained. Since the Act does not require the detaining authority to specify the period for
which a detenu is required, order of detention is not rendered invalid or illegal in the absence of such specification.
In fact, the Division Bench consists of N.K. Jain, J and M.Karpagavinayagam, J. in their order in H.C.P.No.128 of 1998 had referred to the
judgment in Devaki v. Govt of Tamil Nadu and others, 1990 SCC Crl. 348 and also two other judgments arising out of the Maintenance of
Internal Security Act and COFEPOSA matter. Even though the Apex Court has considered the question of mentioning or non mentioning of the
period of detention in the order of detention, the principles laid down therein can be taken for assistance to decide the issue involved in this case.
So far as the case on hand is concerned, this Court is not considering the merits of the order of detention on the basis that there is some
infirmity in the said order or detention itself. The order of detention is being challenged on the ground that the communication sent to the family
members about the detention of the detenu mentions the period of detention and as such, the order of detention is liable to be set aside on the
ground of non application of mind. The question for consideration is as to how far this contention of the learned counsel for the petitioner can be
accepted.
Sufficient safeguards had been made by the statute itself for the detenu as discussed by the Apex Court in Devaki v. Govt of Tamil Nadu and
others, 1990 SCC Crl.348 . Admittedly, the order of detention does not specify the period of detention and hence, the order of detention cannot
be said to have been passed by the detaining authority without application of mind to the relevant and available materials on record, As rightly
contended by the learned ''Public Prosecutor, the purpose of sending the communication to the relatives of the detenu is to inform them about the
order of detention against the detenu and the place of his confinement so that they can meet the detenu and make necessary arrangements for
sending the representation to the authorities. In fact, the communication to the relatives with regard to the order of detention is essential only to the
relatives, who were not aware about the order of detention. If the relatives were aware about the order of detention against the detenu, then there
is no obligation on the part of the detaining authority to send any communication to the relatives about the order of detention. This is very clear,
from the judgment of the Supreme Court reported in the case of Union of India v. Vasanbharthi, 1990 SCC Crl 317 where the learned Judges
have held as follows;
The object and purpose of the above observation, in our view, seem to be that the family members of the detenu should not be kept in darkness
by withholding the information about the passing of the order of detention and the place of detention thereby, preventing them from having any
access and from rendering any help or assistance to the detenu and similarly the detenu should not be deprived of the privilege of meeting their
relations and getting any- help or assistance.
Coming to the present case, we are satisfied that the family members had sufficient knowledge about the detention of the detenu by virtue of the
mittimus issued as well as the place of detention. Therefore, no legitimate grievance can be made that there is a contravention to the observation in
A.K.Roy case.
When the purpose of sending the communication to the family members is only to inform them about the detention and the place of detention of
the detenu, the other contents in the said communication would not confer any right on the relatives or take away their right. The relatives are
entitled to know the whereabouts of the detenu in order to give him a proper assistance to make the representation against the order of detention.
When the purpose of intimation is only to inform the relatives about the detention and the place of detention of the detenu, the other materials
specified or mentioned in the order of detention are of no consequence or relevance so far as the relatives are concerned. In fact, only on this
principle, the Division Bench of this Court consists of N.K. Jain, J and M.Karpagavinayagam, J. in H.C.P.No.128 of 1998 has held that the
mentioning of the period of detention in the communication to the family members will not vitiate the order of detention, as the same has no
relevance to the validity and legality of the order of detention.
The mentioning of the period of detention in the communication to the family members at the best can be a mistake committed by the detaining
authority. The mistake cannot be said to be fatal to invalidate the order of detention itself. Admittedly, the order of detention do not contain the
period of detention and as such, the same is quite valid and is in accordance with Subsection (2) of Section 3 of the Tamil Nadu Act 14 of 1982.
Thereafter, the procedure to be followed had been prescribed by the statute by providing necessary safeguards. In order to invalidate the order of
detention, it is to be established that the procedure prescribed under the statute had not been duly complied with. In the case on hand, there is no
such complaint. When the communication to the family members is essential only when they were not aware about the detention of the detenu, the
necessity as per the statute is only to inform the family members about the detention of the detenu and the place of detention. Even if such
communication mentions the period of detention, it is of no consequence, as the detaining authority has no such power, to specify the period of
detention. Only the Government has got the power to specify the period of detention subject to the maximum period as per Section 13 of the Tamil
Nadu Act 14 of 1982. When the procedure prescribed under the statute had been followed and the rights of the detenu guaranteed under Article
22 (1) and (5) of the Constitution had not been violated, the order of detention cannot be challenged. The non-application of mind has to be
attributed while passing the order of detention. Hence, the sending of communication to family members is only a consequential act of the detention
order and the mistake therein cannot vitiate the order of detention unless such mistake violates any of the rights of the detenu guaranteed under the
statute or the Constitution of India.
16.Considering the above principles. We respectfully agree with the view expressed by the Bench consists of N.K. Jain, J and M-
Karpagavinayagam, J in H.C.P.No.128 of 1998 and hold that the same is in accordance with the principles laid down by the Supreme Court.
Consequently, we answer the question as follows:
The mentioning of the period of detention in the communication to the family members of the detenu or even in the order of detention of the
detaining authority will not vitiate the order of detention''.
The Registry is directed to post this petition before the Division Bench to deal with other questions, if any.