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Judgment
V.S. Sirpurkar, J.—This judgment shall dispose of three Habeas Corpus Petitions, they being H.C.P. Nos.1495, 1496 and 1497 of 1999.
KC.P. No. 1495 of 1999 has been filed to challenge the order of detention passed, on 30-4-1999, by the Commissioner of Police, Chennai, in
respect of one Zahir Hussain @ Scientist. The order is passed under the provisions of Section 3(2) of the National Security Act with a view to
prevent the said Zahir Hussain @ Scientist from acting prejudicial to the public order. H.C.P. No. 1496 of 1999 is in respect of one Sheik
Mohideen and the order has been passed on the same day and by the same authority, i.e. The Commissioner of Police, Chennai. H.C.P. No.
1497 of 1999 is in respect of one Mohammed Kamil, in whose case also the order of detention has been passed by the same authority on the
same date. Since the facts pertaining to all the three detenus are common and since the learned counsel has also chosen to address common
arguments, we are disposing of the three petitions by this common judgment.
In support of the order, in the grounds it is commonly stated that on or about 14-2-1998, were series of bomb blasts at Coimbatore, where Mr.
L.K. Advani, the then President of Bharathiya Janata Party, was to address a public meeting and that in that bomb blasts, several persons lost their
lives and several others were injured grievously and that the investigation revealed that the Muslim hardcore fundamentalists, with the active
assistance of an Organisation called ""UL UMMA"", were responsible for the bomb blasts. It was suggested that the- said organisation was also
encouraging and aiding its followers to promote hatred, disharmony and enmity on the religious grounds in between Hindu and Muslim communities
and that the said organisation had done several acts of criminal nature, including murders, causing injuries, etc. out of ill-will that felt against the
Hindu community. It is then pointed out that in respect of this incident extensive investigation was taken up in the other parts of Tamil Nadu and
more particularly in major cities like Chennai, Madurai, etc. It is pointed out that the said organisation is declared as an unlawful organisation under
the Criminal law Amendment Act, by G.O. dated 14.2.1998. It is then pointed out that number of sympathizers of ""UL UMMA"" and its active
members were arrested and large quantity of explosives were seized from them- Thereafter, three incidents have been relied upon, they being
dated 30-5-199 and 31-5-1999. The first among them is a bomb blast, which took place near a hostel compound, within the jurisdiction of D-1
Triplicane Police Station. It is suggested that Crime No.695 of 1999 was registered for offences u/s 3 of the Explosive Substances Act and
Section 436 IPC and taken up for investigation. It is then suggested that on the same day, a Police Constable called Natarajan lodged a complaint
in F-2 Egmore Police Station, Chennai about planting of bombs near the telephone box junction kept in front of the Office of the Commissioner of
Police, Egmore, Chennai. It is stated that Crime No. 1018 of 1999, under Sections 286, 307 IPC and Sections 4 and 5 of the Explosives
Substances Act, 1980 was registered thereupon. It is then stated that on 31-5-1999, one Dayalan lodged a complaint about a live bomb having
been kept at the backyard of a building situated at Anna Salai. That case was registered as Crime No. 1253 of 1999 for offences under Sections
286 and 307 IPC and Section 4 of the Explosive Substances Act in F-1 Chintadripet Police Station. It is then pointed out that such live bombs
were planted at the big cities like Trichy and Coimbatore also and were recovered on the same day. The narration of the grounds further suggested
mat because of all these, the investigation of the cases of these nature was transferred to CB-CID and more particularly to Thiru R. Sushilkumar,
Inspector of Police, Crime Branch, C.I.D. Metro Chennai. It is then pointed out that one Sadakkathullah was arrested by the Inspect of Police,
Crime Branch, C.I.D. Madurai, on 5- 6-1999, in Crime No. 1163 of 1999, registered by B-l, Bazaar Police Station, Coimbatore and on his
interrogation, he confessed mat some important ""UL UMMA"" activists had visited his house and he has also further stated that out of diem one
Zahir Hussain of Coimbatore (not the concerned detenu) and TADA Moosa came to his house with two bags containing six boxes full of bombs
and ten numbers of pipe bombs and mere were some activists like Sulthan, Ummar Farrok, Ammani and Kallell. who had jointed memo in the
house. From this statement, it was also apparent mat said Zahir Hussain had sent one Sulthan with a bomb in a bag to Trichy. The confession also
revealed that the bombs were meant for planting in Chennai and mat they were going to meet one Kamil of Jihad Committee. It is then pointed out
that the three cases, dated 30-5-1999 and 31-5-1999, were connected with the bombs only and, therefore, it was felt from the statement of
Sadakkathullah mat there could be a possibility of me other members of the ""AL UMMA"" meeting Kamil in Chennai for the purposes of planting
bombs. It is then pointed out mat Mohammed Kamil and Zahir Hussain were arrested on 9- 6-1999 in front of Central Railway Station, when they
were about to leave for Bombay. They were also interrogated and they gave their confessions and, in pursuance of the same, copies of the
pamphlets in the room of Mohammed Kamil and me motorcycle, which they used for transporting and planting the bombs hidden at Avalia Sahib
Street, were also seized. It was apparent from the said confessions mat it was Mohammed Kamil, who has masterminded the explosion of bombs
in Chennai along with Zahir Hussain (a), Scientist and some others. The grounds further suggest that it was apparent during interrogation that ""AL
UMMA"" activists were not at all happy with the action taken against them by the police and the Government and they had planned to plant bombs
in major cities to cause damage to the buildings of police and prison authorities and to cause threat to the prison, police and Government
authorities. The grounds also suggest about the activities of Zahir Hussain and his having hatched a criminal conspiracy to plant live bombs in major
cities in Tamil Nadu to struck terror and panic in the minds of Police, Prison and Government authorities and thus to disturb the public peace. The
grounds separately suggest that the concerned detenus were on remand and a further satisfaction is recorded in me grounds mat the detention of
the said three detenus was essential for maintaining the public order as their activities were prejudicial to the maintenance of public order. Of
course, in the three cases, similar satisfaction is recorded against each of the detenu.
Learned counsel Mr. Xavier Felix, first urged that all the three orders have been passed without application of mind and are pure result of non-
application of mind. He also points out that some important documents were suppressed by the sponsoring authority and were not put before the
detaining authority, which has resulted in the whole exercise being rendered illegal. He also argues further that the detaining authority was not in
possession of the necessary documents and has acted without considering some very material facts. He also suggested that the representations
which were sent by the detenus to the Central Government has been perfunctorily dealt with unhealthy haste and that there is no real consideration
of the representations sent by the detenus on the part of the Central Government. He also points out that through some documents were sought for
by the detenus, they were not supplied. He further points out that the basis of the detention was the statement, in the nature of confession, given by
Sadakkathullah and, in fact, Sadakkathullah himself had been released and his detention had been revoked later on and that factor should be taken
into consideration by the State Government. He also points out that the apprehension by the detaining authority that the detenus were likely to be
bailed out was a mere ipse dixit and there could not be any real satisfaction on the part of the detaining authority. He also pointed out that some
documents were supplied to the detenus on 3-8-1989, which documents had no relevance whatsoever and as such had resulted in confusing the
detenus so as to affect their rights of making effective representation.
The learned counsel drew our attention to page No. 155 of the booklet supplied to the detenus, which is a common booklet. He pointed out
that while Zakir Hussain and Mohammed Kamil were arrested on 9-6-1999, Mohideen was in fact arrested on 17-6-1999. The learned counsel
was at pains to point out that though Zakir Hussain and Mohammed Kamil were produced before the concerned Judicial Magistrate on 10-6-
1999 and their further remand was sought in the three crime numbers, they being Cr.Nos.1018 of 1999 by F-2 Egmore Police Station, 1253 of
1999 by F-l Chintadripet Police Station and 695 of 1999 by D-l Triplicane Police Station, the remand was granted only in respect of the first two
crime numbers. He pointed out that in respect of these two persons, viz., Zakir Hussain and Mohammed Kamil the remand was extended upto 24-
6-1999. He men pointed out that though some remand orders were supplied, it is is not clear from the documents as to how the further remands
were granted and as to how the detaining authority came to the conclusion that the detenus were under the judicial custody on the basis of the
remand orders. According to the learned counsel, it was imperative on the part of the authorities to supply all the remand orders so as to explain as
to how the remand orders were granted from time to time and how long did they continue. The learned counsel argues very fervently mat it was
essential that the detenus should have been under legal remand orders. He points out mat though mere are remand orders to suggest mat the two
detenus, viz. Zakir Hussain and Mohammed Kamil were further remanded from 24-6- 1999 to 8-7-1999, there was no order on the record to
suggest as to how me remand was further extended and particularly whether on 30-7- 1999 these persons were under a valid remand.
As an answer in reply to this argument, the learned Additional Public Prosecutor candidly admitted that the remand orders were not supplied to
the detenus. The reason for this being that the remand orders were not relied upon documents. The learned Additional Public Prosecutor drew our
attention to the detention orders and pointed out that though me crime numbers were given in the grounds, while recording his satisfaction, the
detaining authority has merely stated that the detaining authority was aware mat the detenus were in remand. He points out therefore that the
various remand orders were neither referred to nor relied upon by the detaining authority and all that the detaining authority wanted to convey was
that he was aware that the detenus were under remand. He invited our attention to the Special Report, which commences at page 239 of the
booklet. He drew our attention to page 241 of the booklet and pointed out that there the sponsoring authority had specifically pointed out that the
concerned persons were under judicial remand upto 10-8-1999. From this, the learned Additional Public Prosecutor suggested that mere were
enough and sufficient materials to suggest and to justify the satisfaction on the part of the detaining authority and his awareness that the concerned
detenus were under the judicial custody on remand on the date when the detention was ordered, i.e. on 30-7-199. There is no doubt that in the
grounds of all the three orders, the detaining authority has nowhere referred to the various dates on which the remands were ordered. There is
undoubtedly a reference to the first production of the detenus and it is an admitted position that documents pertaining to their first production and
the first remand were supplied along with the other documents. Therefore, it cannot be said that the remand documents, which were relied upon,
were not supplied, to the detenus. To that extent, the arguments must be rejected. The other argument is that the detaining authority was expected
to supply all the remand orders to the detenus. For both reasons that argument must be rejected as the detaining authority has initially referred to
the facts of those remands and has merely remained content by stating that he was aware that the detenus were under the judicial custody on the
basis of the remand, which was extended upto 10th August, 1999. There is no doubt that the last remand order has not been filed but, for that
purpose the special report would come to the rescue of the detaining authority, from which the detaining authority could legitimately record his
satisfaction. The first contention raised by the learned counsel therefore must be rejected.
It is men suggested mat at pages 223 and 224 of the booklet, there is a requisition to extend the remand from 16-7-1999 to 30-7-1999. The
learned counsel points out from this, mat as to what order passed by the learned Magistrate on mat remand extension application is not known as
that order is not supplied to the detenus. He therefore suggests that there is no material to hold that me detenus on 30-7-1999 were in me judicial
custody on the basis of remand. Again, me answer to this challenge is to be found in me special report to which we have already referred, which
suggests mat me detenus were in the judicial custody on me basis of me remands passed by me courts upto 10-8-1999. The second contention
also must be rejected.
Thirdly, the learned counsel pointed out that it is mentioned in mat special report that the two detenus, viz. Zakir Hussain and Mohammed Kamil
were put in the police custody on 24m June, 1999 and were in police custody upto 25m June, 1999. He points out mat there is nothing on record
to suggest as to what happened to these two accused persons, who were given in police custody in respect of Crime No.695 of 1999 by D-l
Triplicane Police Station. Learned counsel had already pointed out mat on 10-6-1999 when me remand was sought in respect of the three crime
numbers, the remand was not granted in respect of Crime No.695 of 1999 by D-l Triplicane Police Station. The learned counsel, therefore, argues
mat a great confusion is caused as to what has happened after the police custody and as to whether the concerned accused persons were
produced before the concerned Magistrate at all and whether they were in judicial custody on the basis of lawful remand orders. We are afraid,
the contention, though very attractive, lacks merit in view of the specific contents in the special report. In the special report, the sponsoring
authority has specifically reiterated the all the three detenus were ordered to be in judicial custody upto 10-8-1999. Besides this, it is specifically
stated in the special report mat the two accused persons, viz. Zakir Hussain and Mohammed Kamil were then produced at the end of me police
custody before the concerned Judicial Magistrate. In view of the subsequent statement that their judicial remand was ordered upto 10-8-1999, the
argument that there was a confusion must be rejected. There was no scope for confusion inasmuch as in the special report, the sponsoring authority
has specifically mentioned that all the detenus were ordered to be injudicial custody upto 10-8-1999, meaning thereby that they would be injudicial
custody on 30-7-1999 when the detention order was actually passed against each of them. This contention of the learned counsel also therefore
must be rejected.
The learned counsel then pointed out that there is absolutely no reference to any bail orders or the bail applications made on behalf of the
detenus. He points out mat the bail applications were not only filed but all the detenus had very specifically retracted the confessional statements in
their bail applications. He points out that the said retractions were of extreme importance particularly, when the said confessions of each detenu
were relied upon by the detaining authority. Learned counsel is at pains to point out that all these bail applications were made before the passing of
the detention orders and, therefore, the sponsoring authority was duty bound to place these bail applications and the subsequent orders rejecting
the bail applications before the detaining authority and in suppressing the same, the detention orders passed by the detaining authority are vitiated.
The learned counsel very heavily relied on the Division Bench decision of this Court, reported in 1999 1 L.W.(Cri.) 60 (Sultan Birthowus v. The
State and others). He points out that in this case, the Division Bench has taken a view that where the confession, which the detaining authority''
replied upon for the purposes of detention, is retracted in the subsequent bail application, then such retraction must be placed before the detaining
authority along with the order passed thereupon and such non-placement and non-consideration would vitiate the detention. The learned counsel
has also invited our attention to one other Division Bench judgment of this Court, reported in 1992 L.W. (Cri.) 170 (Arun Kumar Soni v. Union of
India), where the Division Bench, consisting of T.S. Arunachalam and Pratap Singh, JJ. has taken the similar view. The learned counsel points out
mat in Arun Kumar Soni''s case a reference is made to a judgment of me Supreme Court in W.P. No. (Crl.) 602 of 1989 (Mohd. Taufeek Mohd.
Mulaffar v. The Addl. Secretary to Government of Tamil Nadu). The learned Additional Public Prosecutor, however suggests mat the decision in
Mohd Taufeek''s case would not be of a binding nature in view of the subsequent decision by the Supreme Court, reported in 1992 (1) SCC Crl.
1(Abdul Sathar Ibrahim v. Union of India and others). Learned Additional Public Prosecutor points out that the controversy in Abdul Sathar
Ibrahim Manik''s case, cited supra, was identical inasmuch as there also the subsequent bail applications and the rejection orders were not placed
before the detaining authority by the sponsoring authority and they were not later on supplied to the detenu. After considering a number of
decisions. the Apex Court has held as follows:-""Having regard to the various above cited decisions on the points often raised, we find under:
1)............
(2)...........
(3) If the detenus has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does
not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as
the detaining authority was aware of the fact that the detenu was in actual custody.
(4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu''s right of being
afforded a reasonable opportunity is clear that the authority has not relied or referred to the same.
(5).........
(6).........
The learned counsel, however, pointed out that the decision in Mohammed Taufeek ''s case, cited supra, was relied upon by the Division Bench of
this Court in Sutihan Birthowus case, cited supra, wherein the Division Bench has, relying on that case, held that the non-consideration of the
retraction statement in the bail application, which was ultimately refused, was fatal to the detention order. We have carefully gone through that
judgment. In the first place, me facts in Sulthan''s case were entirely different. That was a judgment regarding the detention order under the
COFEPOSA Act. The most differentiating factor is that in that judgment, detention depended practically solely upon the statement made before
the Customs authorities u/s 124 of the Customs Act and it was that statement which was retracted in the subsequent bail applications. The Division
Bench has observed as follows:-
This Court as well as the Apex Court would time and again quote that when the detaining authority considers ''confession"" as a main material,
holding it as voluntary, he shall, before passing an order, consider whether any retraction has been made prior to the passing of the order.
Admittedly, this has not been done.
From this it would be clear that in that case the confession statement was the main material relied upon by the detaining authority for clamping the
order of detention. This is not the case here. Besides the confession statements, there are other circumstances quoted in the order and the grounds
which have been relied upon by the detaining authority to order the detention under the National Security Act. Besides, this is apart from the fact
that subsequent decision to Taufeek''s case and Arun Kumar Soni''s case, i.e., the decision in Aldul Sathar Ibrahim Manik ''s case was not brought
to the notice of the learned Judges. Once it is held by the Apex Court that the non- consideration of the bail application, which has been rejected
by the courts subsequently, does not amount to non-application of mind, the ruling will have to be applied in this case also and in that view, the
contention raised by the petitioners that because of the non- consideration of the bail applications and the orders thereon, the order is vitiated on
account of non-application of mind has to be rejected. It will be seen that the accused persons in those bail applications have not succeeded and
admittedly those bail applications have been rejected.
Mr. Xavier Felix next contended that the bail applications and the bail orders, which the detenus had sought, should have been supplied to them
in order to enable them to make an effective representation. We have already pointed out that there would be no necessity to supply them those
documents on account of the observations made by the Apex Court in Abdul Sathar Ibrahim Manik''s case, cited supra, which observations we
have already quoted. The argument, therefore, must fail.
The learned counsel then points out that the confession of one Sadakkadiullali was referred to in the detention order and was also a relied upon
document. Though the learned counsel fairly admits that the said statement was supplied to the detenus, he points out that ultimately the detention
of Sadakkafhullah himself was revoked by the State Government, u/s 14 of the National Security Act, by its order dated 16-9-1999. He therefore
points out that the main basis for the detention has been lost to the detaining authority and the further detention has become baseless. We are
afraid, reading the whole order of detention along with the grounds, though a reference has been made to Sadakkathullah''s voluntary confessional
statement and though it has been relied upon, it cannot be stated that the confessional statement of Sadakkathullah was the basis or the main
consideration for the detention of these detenus. We have earlier deliberately given a resume of the grounds, which would point out that the
confessional statement by Sadakkathullah itself cannot be said to be the only link between the detenus and the subsequent order passed. Besides
these"" statements, there are weighty reasons given in the grounds and that is the involvement of these detenus in three criminal cases, registered by
the Egmore Police Station, Chintadripet Police Station and Triplicane Police Station for the incidents which took place on 30-5-1999 and 31-5-
1999. Besides the confessional statement of Sadakkathullah, the recovery of incriminating materials has also been mentioned in the grounds. Again
apart from the confessional statement of the concerned detenu, the confessional statements of the other detenus involved in the matter have also
been relied upon and there is a clear mention to the illegal activities contemplated or committed by the detenus. In that view, it cannot be said that
merely because the detention of Sadakkathullah was revoked by the State Government, the same result should have also followed in respect of the
above three detenus. The contention in that behalf therefore has to be rejected.
The further contention of the learned counsel is regarding the non-application of mind on the part of the detaining authority, which was apparent
from the same of the contents in paragraph 2 of the order. The learned counsel pointed out to us the following observations:
I am aware that Zahir Hussain (a) Scientist is in remand and there is imminent possibility that he may come out on bail by filling bail application in
the Court. If he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public order. I am also aware
that after a lapse of sometimes the Court will grant bail. Further the recourse to normal criminal law would not have the desired effect of effectively
preventing him from indulging in such activities which are prejudicial to the maintenance of public order.
To the similar effect are the observations in respect of other two detenus, viz. Mohammed Kamil and Sheik Mohideen. The learned counsel also
points out if the detenus were in remand, there was no necessity of clamping a detention order against them and that the detection by the detaining
authority that there was imminent possibility of the detenus coming out on bail was a mere ipse dixit on the part of the detaining authority as there
was nothing before the detaining authority to suggest that the bail applications made by the accused persons in those criminal cases would be
granted. The contention has no force because it is obvious that the detenus could ultimately file bail applications later on. The detenus in these cases
were arrested somewhere in the first or second week of June, 1999, while the detention order is passed after about fifty days. It is an admitted
position that the bail applications were in fact moved on 11-5-1999 and rejected on 18-6-1999. Therefore, one thing is certain that there was
nothing to prevent the detenus from filing subsequent bail applications merely because their earlier bail applications were rejected. That apart, the
observations of the detaining authority that after a lapse of some time, the courts would grant bail can also be seem to have direct nexus with the
provisions of Section 167 of Crl.P.C. under which, if the chargesheets were not filed during the time limit contemplated by that section, the bail of
the accused becomes as a matter of right. In mis view of the matter, we are not impressed by the contention of the learned counsel that the
statement that the detenus were likely to be released on bail can be said to be a mere ipse dixit on the part of the detaining authority. The
contention of the learned counsel therefore must be rejected.
Lastly, the learned counsel contended mat the representation of the detenus is dated 27-8-1999, which was posted on 3-9-1999 and was
received by the Central Government on 16-9-1999. According to the learned counsel, it was rejected on 21-9-1999, i.e. barely within six days
from the receipt, in which two days were holidays on account of they being Saturday and Sunday. The learned counsel, therefore, contends that it
was clear that the representation was disposed of with undue haste and without proper consideration thereof, which has resulted in breach of the
right of tire detenu under Article 22(5) of the Constitution of India. Unfortunately for the petitioners, in none of the petitions has this point been
raised nor has an opportunity been given to the Central Government to explain as to how it rejected the representation. That, apart, merely
because the representation has been disposed of within six days would by itself not suggest that the Central Government has acted with ""undue
haste"". In fact, we appreciate the alacrity with which the Central Government has acted in this matter in considering the representation within six
days and rejecting the same. The contention therefore has to be rejected. These are the only contentions raised by Mr. Xavier Felix before us, with
which we find ourselves unable to agree.
In the result, we hold that the petitions have no merit and they must be rejected. They are accordingly dismissed.