Elango vs State of Tamil Nadu and Another

Ramaswami, J.—These five writ petitions have been filed by one Elango, Secretary, Radical Students Union, Tamil Nadu Unit. It is stated in

the affidavit that the Union and its sister organisation Radical Youth League are wedded to the ideals of Marxism and Leninism and are fighting

against the exploitation of mankind. The writ petitions have been filed praying for a writ in the nature of Habeas Corpus directing the State of Tamil

Nadu and the Collector of Salem to produce the five persons who are detained under the provisions of S. 3(2) of the National Security Act 1980

(hereinafter called as the Act) and to set them at liberty. The orders of detention are dt. 7-6-1985.

In the grounds of detention, it is stated that on 20-4-1985 at about 16.30 hours the five detenus acting as a crew unauthorisedly with malicious

intention removed the inner side steel keys from the fourth sleeper between Lokur and Bommidi railway stations in the railway track between

Madras and Salem (down line) on the western side near joint 15. It is further stated that they were caught red-handed while they were removing

the steel keys by the local people. In the meantime, the Permanent Way Inspector, Grade II, Bommidi having jurisdiction over the said track, in the

course of his routine inspection, arrived at the scene of occurrence around 17 hours accompanied by his trolley men. One of the eye-witnesses had

told the Inspector about the unauthorised removal of the steel keys from the railway track and it is further stated that one of the detenus replied that

they wanted to commit sabotage in order to disturb the maintenances of supplies and services essential to the community. The Inspector

immediately with a view to avoid possible disruption of supplies and services and to safeguard the movement of trains in the said railway track, set

right the railway track. By such immediate action, the derailment of any train was averted. The Kovai Superfast Express passed on the track after

the track was set right around 17.05 hours. At 18 hours the Inspector took the detenus in his trolley and handed them over to the Inspector of

Railway Police, Jolarpet station. A case was registered in Salem Railway Police Station Cr. No. 84 of 1985 under S. 126 of the Indian Railways

Act, and it is pending trial. The accused were remanded by the Judicial Second Class Magistrate Salem and they were lodged in the Central Prison

Salem as remand prisoners.

Action seems to have been initiated against these five persons under the provisions of the National Security Act. The second respondent, the

District Magistrate and Collector of Salem, after having satisfied that the detenus were acting in manner prejudicial to the maintenance of supplies

and services essential to the community and being of the opinion that though they are in judicial remand and would be proceeded under the normal

law, held that their activities warranted a detention under the National Security Act. The detaining authority was also of the view that in order to

prevent them from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is also necessary to

detain them under the Act. Accordingly, by his order dt. 7-6-1985 he directed them to be detained in prison.

According to the petitioner, three of the detenus are minors below the age of 18 years and two of them are students who had just come out

from school. The detenus were radiologically examined for their age, and the radiological report is to effect that three of the detenus were

determined to be above 18 years and below 21 years of age, one above 21 years and below 23 years of age and the fifth above 21 years and

below 25 years of age. As already stated, all of them are stated to be students who had just come out of school, though they had not completed

their education. Be that as it may, suffice it to say that they had just come out of school. It is also not in dispute that they have not been involved in

any criminal activity earlier. It is true that they claim to belong to the Radical Students Union whose sister organisation is Radical Youth League

which are stated to be wedded to the ideals of Marxism and Leninism and their policy is to fight against the exploitation of mankind.

In the criminal case, filed against the detenus, they have denied their involvement in the crime and have pleased not guilty. The detenus have also

individually filed affidavits in this court in which they have denied their involvement in the crime and have stated that because of their political views,

they have been implicated in false case. They have also stated that they did not attempt to derail any train and that derailing the trains, demaging

public property, sabotage, killing of individuals or group of person or any such anti-social activities are not the policies of their movement. They

have further individually given an undertaking that they will not indulge in sabotage, derailing of trains, damage of public property, conspiracy to kill

an individual or group of persons or any other anti-social activities.

The learned counsel of the petitioner strenuously pleaded that we should accept their undertaking and in fact drew our attention to the Supreme

Court accepting an undertaking in the case of Kalaperumal and others, who were also Naxalites and releasing them on permanent parole after they

were found guilty of murder. The learned Public Prosecutor has filed a counter affidavit stating that even when the detenus were brought to the

Sessions Court for trial, they and a group of forty or fifty people were raising Naxalite slogans, that they refused even to take part in the trial on the

ground that the Judge had made some statements in court and they therefore the undertaking given by the detenus should not be accepted.

We have given our anxious consideration in this matter; we are of the view that the undertaking is acceptable. We do not have any

circumstances which will make us feel that the detenus will breach the undertaking. They are young students who had just come out of school.

They do not have any previous criminal activity on record. The policy of the organisation to which they belong itself is stated to have changed and

they are not now for individual or mass annihilation or damage to public property or sabotage or derailing of trains. The detenus are also facing

criminal trial and if they are proved to have committed the crime, the criminal law will take care of it. Further, the two bail applications filed by them

in the criminal case have been dismissed and they are actually in judicial remand. The only apprehension of the respondents in this case is that in the

event of the detenus getting bail from the Sessions Judge, their presence at large will be prejudicial to the maintenance of supplies and services to

community. But we are of the view that these types of hypothetical issues need not cloud our consideration, because as it is, the detenus are in

remand and there is therefore no possibility of their acting in any manner prejudicial to the maintenance of supplies and services to the community.

The provisions of S. 126 of the Indian Railways Act are also very severe and it can take care of the persons who have contravened the said

provisions. Merely because they have been raising Naxalite slogans whenever they are brought to court, it cannot be said that they will indulge in

any criminal activity contrary to their undertaking. In addition, as already stated, though they do not disown that they are Naxalites or belonging to

the Radical Youth League and the Radical Students Union, in this particular case, they have denied the commission of the crime and characterised

the prosecution as one falsely implicated. If, as contended by the learned Public Prosecutor, any bail application is filed on behalf of the detenus,

the State will have to only oppose the bail application if they consider that the presence at large of the detenus will be prejudicial to the

maintenance of supplies and services to the community. In the fact, the contention of the learned counsel for the petitioner is that the detenus are

prepared to face the trial in the criminal court, but they should not be characterised as having acted in any manner prejudicial to the maintenance of

supplies and services essential to the community and detained under the preventive detention provisions of the National Security Act.

In the foregoing circumstances, accepting the undertaking given by each of these detenus, we set aside the order of detention. However, we

make it clear that we are not interfering with the remand order of the accused and therefore we are not directing the release of the accused in the

criminal case which will have to be dealt with in accordance with law. In the above circumstances, we are not dealing with the other points raised

by the learned counsel for the petitioner in this case.

Petitions allowed.