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Judgment
Kanakaraj, J.—All the four writ petitions are for the issue of a writs of Habeas Corpus to produce the detenus in each of the cases before
this Court and set aside the orders of detention passed against each of the detenus and set them at liberty. W.P. No. 5538 of 1990 has been filed
by the father of the detenu one Sevalayan alias Subbarayan. W.P. No. 5539 of 1990 has been filed by the wife of the detenu Sundaramoorthy.
W.P. No. 5647 of 1990 has been filed by the father-in-law of the detenu Pakkiri. W.P. No. 5648 of 1990 has been filed by the brother-in-law of
the detenu Veerappan. The detention orders in all the cases are dated 15-3-1990 and relate to the same incident. All the detenus have been
detained as bootleggers under Tamil Nadu Act 14 of 1982. W.P. Nos. 5647 and 5648 of 1990 have been argued by Sri. N. T. Vanamamalai,
learned senior counsel and W.P. Nos. 5538 and 5539 of 1990 have been argued by Sri. R. Subramaniam.
We will first narrate the facts leading to the detention orders as set out in the order of detention itself. The detenu in W.P. No. 5539 of 1990
Sundaramoorthy is said to be a municipal councillor of Panrutti Municipality. His sister is one Mala alias Nirmala. Sevalayan, detenu in W.P. No.
5538 of 1990 is the husband of the said Mala. The detenu Sundaramoorthy who was originally a licensee to sell toddy in retail had to stop his
business because of the introduction of prohibition in Tamil Nadu. It is stated that the said Sundaramoorthy entered into a conspiracy with the other
detenus in buying, possessing and selling illicit arrack in a clandestine manner. They are said to have procured illicit arrack from Pondicherry,
transported the same to Panrutti and stored the contraband in a deep pit dug up for that purpose and concealed the same by placing sticks and
shrubs on the top of the pit, near the house of the said Mala. Sevalayan alias Subbarayan, detenu in W.P. No. 5538 of 1990 and certain others are
said to have procured the illicit liquor from the arrack shop No. 1, Karayamputhur in Pondicherry State. The said arrack shop is said to have been
run by Pakkiri, the petitioner in W.P. No. 5647 of 1990. Veerappan, the detenu in W.P. No. 5648 of 1990 is the brother of the said Pakkiri. Not
content with the sale of arrack supplied by the Government of Pondicherry and with a view to amass wealth, Pakkiri and Veerappan detenus in
W.P. Nos. 5647 and 5648 of 1990 procured rectified spirit in a clandestine manner. They had sold and delivered the contraband in a clandestine
manner to Sundaramoorthy, detenu in W.P. No. 5539 of 1990. Sundaramoorthy and Sevalayan, detenus in W.P. Nos. 5539 and 5538 of 1990
along with others purchased the illicit liquor from Pakkiri and others, transported the same by bicycles to Panrutti, kept the contraband in their
possession and sold the same to innocent public in Thattanchavadi, Panruti. On 10-2-1990, 13-2-1990 and 17-2-1990, Sundaramoorthy is said
to have procured 16 cans each containing 30 litres of spurious liquor containing methyl alcohol poison as one of its ingredients from Pakkiri and
others in Karayamputhur. The contraband was kept in the usual place near Mala''s house. It is stated that on 18-2-1990 Sundaramoorthy and
Sevalayan, detenus in W.P. Nos. 5538 and 5539 of 1990 sold the illicit liquor on the western side of Kokkupalayam road. The consumption of
the said liquor resulted in the death of as many as 36 persons and the incident was given wide publicity in the Newspapers and it was called ""killer
brew"" tragedy. On 19-2-1990 at about 03.00 hours, the Sub-Inspector of Police (Law and Order), Panruti Police Station rushed to the house of
one Ramasamy, the first victim in the case and recorded a statement from his wife Rani. She also disclosed the fact of several others were in
serious condition. The case was registered on 19-2-1990 at about 04.00 hours as Crime No. 136 of 1990 u/S. 4(1-A) read with 4(1)(i) of the
Tamil Nadu Prohibition Act. On the same day, Mala alias Nirmala and one Murugan were arrested at Kalathumettu Eri, Pudu Nagar, Panruti.
They were interrogated and statements were recorded from them. In pursuance of their confession statements, six empty plastic cans with some
remnants of spurious liquor were seized under a cover of a mahazar in the presence of independent witnesses. The sample was sent to the Regional
Forensic Laboratory, Thanjavur. Similarly, one Kaliaperumal was arrested on 20-2-1990 at Karayamputhur at the arrack shop No. 1 already
referred to and his statement was duly recorded. Five more cans, plastic bags, incriminating diary and records were seized from Kaliyaperumal
and the samples of illicit liquor were sent for analysis. One Mani was arrested at Karayamputhur and on his statement 74 cans were seized and 74
samples were taken in independent bottles and sent for analysis. Veerappan, detenu in W.P. No. 5648 of 1990 and one Narayanan were arrested
at 11-00 a.m. on 20th February, 1990. 13 iron barrels each containing 200 litres of illicit liquor along with 10 cans containing 90 litres of illicit
liquors were recovered from them. On 21-2-1990 at about 02.30 hours Sundaramoorthy, detenu in W.P. No. 5539 of 1990 was arrested at
Gorimedu, at Pondicherry. On his information, 7 cans each containing 30 litres of illicit liquors were seized. On 28-2-1990 at about 23.00 hours,
Sevalayan alias Subbarayan detenu in W.P. No. 5538 of 1990 was arrested at Muthiraipalayam at Pondicherry State. A statement was recorded
from Sevalayan alias Subbarayan also. On 6-3-1990 at about 22.00 hours Pakkiri, detenu in W.P. No. 5647 of 1990 was arrested at Chittoor. In
pursuance of his statement, incriminating documents were seized from the said Pakkiri. The chemical examination reports disclosed the presence of
methyl alcohol poison in all the samples taken from the said persons or recovered on their information. The Assistant Medical Officer has opined
that the rectified spirit contains 90% to 95% of Ethyl alcohol and taken as such it will cause death. The Doctors who treated the victims and who
conducted the autopsy over the dead bodies have given opinion that the deceased and the injured were victims only due to the consumption of
illicit liquor mixed with mythyl alcohol poison.
It is under these circumstances that the detaining authority came to the conclusion that all the above detenus were bootleggers and had actively
assisted one another in procuring rectified spirit containing methyl alcohol, a poisonous substance as one of the ingredients from Karayamputhur in
a clandestine manner, illegally transported the same to Panruti and kept the contraband in pits near the house of Mala. They are stated to have
mixed rectified spirits and water in the ratio of 1 : 2 1/2 to make it fit for consumption. Their activities have caused the death of 36 persons and
resulted in deformities to several others. In all the cases, the detaining authority says that the detenus are under remand and recourse to ordinary
law will not have the desired effect of preventing them from indulging in activities prejudicial to the maintenance of the public order. The detaining
authority gives reasons as to how the detenus may come out on bail and indulge in activities prejudicial to the maintenance of public order. We will
deal with the case of each detenu on the basis of the arguments advanced before us.
Sri N. T. Vanamamalai raised the following five points : (1) There is a clear reference of seizure of incriminating documents in the orders of
detention. But in spite of a request, copies of such documents were not furnished to the detenus. (2) Bail Applications filed by the detenus had
been dismissed by the authorities and these bail applications were not placed before the detaining authority. (3) There was no compelling necessity
justifying the orders of detention in spite of the fact that the detenus were already under remand. In other words there was no application of mind
by the detaining authority. (4) On the date of the detention order, the detenus were under remand in the Sub-Jail, Panruti. Still the residential
address alone is given in the order of detention. This again shows non-application of mind. (5) The detenus asked for copies of the Bail Petition
and the orders passed thereon, but they were not furnished. Mr. R. Subramaniam, learned counsel adds the following points : (1) All the orders of
detention have been passed on the same date viz., 15-3-1990 whereas charge sheet was filed only on 22-3-1990. It is therefore clear that the
detaining authority could not have had all the materials before him on the date of the passing of the detention order. (2) The documents mentioned
in the mahazar dated 20-2-1990 like the account books, the hand bills and the diary were not furnished to the detenus (3). The toxicological report
was also not furnished to the detenus.
The learned Public Prosecutor has argued the case for the respondents on the basis of the counter-affidavits and records. We will examine each
of the contentions with reference to the answer of the Public Prosecutor.
The contention regarding the non-supply of the alleged incriminating documents, the Bail petition, the orders thereon and the documents
mentioned in the mahazar can be grouped together and considered accordingly. The argument is that the order of detention refers to the documents
seized under the mahazar as ""incriminating documents."" Therefore, those documents ought to have been furnished to the detenus. It is no answer to
say that those documents were not relied on by the detaining authority. It is for the detenus to decide whether the documents are necessary and in
what way they will make use of them. There is a clear averment in the affidavit filed in support of the writ petitions that they asked for copies of the
incriminating documents and the same were not supplied to them. The answer of the respondents is that the documents seized and sent under form
No. 91 were neither referred to nor relied upon by the detaining authority. Therefore, the said documents were not furnished to the detenus.
Several decisions have been cited on behalf of the petitioners as well as by the learned Public Prosecutor. In fact some of the judgments may
appear to be conflicting and the views expressed may appear to be divergent with one another. But actually each decision is based on the facts of
the particular case. The basic principles on which all the subsequent decisions have been adumbrated are found in Khudiram Das Vs. The State of
West Bengal and Others, . That judgment was rendered by a Bench consisting of four Judges of the Supreme Court and arose under the
Maintenance of Internal Security Act, 1971. The grounds of detention in that case cited three incidents of theft on which the District Magistrate
placed reliance for the purpose of coming to a subjective satisfaction that it was necessary to detain the detenu in that case. The history sheet of the
detenu had also been placed before the District Magistrate. It was the case of the District Magistrate that beyond the three incidents mentioned in
the grounds of detention, he did not take an other material in the history sheet for the purpose of passing the order of detention. The argument in
that case was that it was impossible to say that the District Magistrate was not influenced by such other materials and since those materials were
not furnished to the petitioner, he had no effective opportunity to make representation. It was, therefore, contended that Art. 22(5) of the
constitution read with S. 8(1) of the Maintenance of Internal Security Act was violated. Another contention was that the history sheet was also
placed before the State Government when it approved the order of detention and the said action was also in violation of the constitutional mandate.
We have set out the grounds in detail because the argument in this case also is more or less similar. According to Sri N. T. Vanamamalai, the
incriminating documents which are referred to in the order of detention were not furnished to the detenus and the very fact that the word
''incriminating'' is used suggests that the detaining authority would have taken note of those documents before passing the order of detention. The
Supreme Court has first referred to the constitutional mandates in the form of safeguards to act as a cheek on arbitrary exercise of power. Those
two constitutional mandates referred to by the Supreme Court of India are as follows (at page 450 of 1975 Cri LJ) :-
(1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on
which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a
representation against the order of detention.
The Supreme Court then proceeds to say that the word ""grounds"" means all the basic facts and materials which have been taken into account by
the detaining authority in making the order of detention. The Supreme Court then proceeds to lay down the law on the subject as follows (at page
451 of 1975 Cri LJ) :-
It is, therefore, clear that nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention
must be communicated to the detenu. That is the plain requirement of the first safeguard in Art. 22(5). The second safeguard in Art. 22(5) requires
that the detenu shall be afforded the earlist opportunity of making a representation against the order of detention. No available delay, no short fall in
the materials communicated shall stand in the way of the detenu in making an early, yet comprehensive and effective, representation in regard to all
basic facts and materials which may have influenced the detaining authority in making the order of detention depriving him of his freedom. These
are the legal bulwarks enacted by the constitution makers against arbitrary or improper exercise of the vast powers of preventive detention which
may be vested in the executive by a law of preventive detention such as the Maintenance of Internal Security Act, 1971.
Dealing with the power of preventive detention, the Supreme Court observes as follows :-
It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every
preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is
reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof.
The Supreme Court, however, cautions that on the question whether the detaining authority had taken note of any other material or evidence,
the assertion of the detaining authority in a sworn affidavit cannot put an end to the judicial scrutiny. The Supreme Court then proceeded to
examine whether the materials disclosed in the history sheet constituted material prejudicial to the detenu which ought to have been disclosed to
him. The Supreme Court held that in that case, the District Magistrate had only the three incidents set out in the grounds of detention and they
alone went into the formation of the subjective satisfaction of the District Magistrate and they alone ought to have been communicated to the
detenu. Similarly, on the question whether the ""other particulars"" were taken into consideration by the State Government while approving the order
of detention, the Supreme Court had to say this :
There is nothing in Art. 22(5) of the Constitution or in any provision of the Act which requires that these ""other particulars"" should be
communicated to the detenu. The only requirement of communication is in regard to the basic facts and materials which constitute the grounds of
detention and if there are ""other particulars"" besides the grounds of detention which are communicated to the State Government, they need not be
disclosed to the detenu. We cannot import any requirement of disclosure in regard to these ""other particulars"" merely on the basis of a supposed
intention of the legislature when there is nothing in the statute which evinces any such intention.
The Supreme Court ultimately dismissed the writ petition confirming the order of detention.
In our opinion, the said authoritative decision of the Supreme Court should always be kept in mind while considering the subsequent judgments
of the Supreme Court and other High Courts. In particular, we find that there has been subsequent embellishments of the principle requiring the
authorities to supply copies of documents called for by the detenu.
Now we will consider the judgments cited on both sides : The decision in Ashok Kumar Vs. Union of India (UOI) and Others, arose under.
The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter called the ''COFEPOSA'' Act. On the basis
of secret information received in the office of the Assistant Director, Enforcement Directorate that the detenu in that case had been indulging in
illegal sale and purchase of foreign currency on a large scale and on the basis of search of certain premises, the detention was made in that case.
One of the grounds urged before the Supreme Court was that the documents relied on by the detaining authority in coming to the subjective
satisfaction for making the order of detention were not supplied to him. The detenu in that case also asked for certain other documents like bank
pass-books, driving licence etc. which had not been relied on by the detaining authority. In answer to the said contention, the plea was that the
detaining authority had not relied on all those documents seized from the premises, but he had relied on only those documents which were
mentioned in the list of documents annexed with the grounds of detention. It was held that the non-supply of the material documents only at a later
date, had prejudiced the detenu in making an effective representation and as such Art. 22(5) of the Constitution had been violated. The Supreme
Court of India has repeatedly pointed out that the vital documents were supplied only at a later stage in infringement of the provisions of S. 3(3) of
the COFEPOSA Act. The Supreme Court also relied upon the judgment in Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, . It
must be pointed out that in the earlier judgment of the Supreme Court, the ratio that was laid down was that copies of documents, statements and
other materials relied upon in the ground of detention should be furnished to the detenu within the prescribed time. Similar observations had been
made in Kamla Kanyalal Khushalani Vs. State of Maharashtra and another, . Before parting with the said judgment, we must observe that in that
case, the authorities themselves had found it necessary to furnish the documents, but they supplied the documents at a very late stage. The
Supreme Court was mainly concerned with the question that the documents should have been furnished at least within 15 days as contemplated in
S. 3(3) of the COFEPOSA Act. S. 9(1) of the Tamil Nadu Act, 14 of 1982, is lightly different from S. 3(3) of the COFEPOSA Act. S. 8(2)
further says that nothing in sub-s. 8(1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. In
Nityarani v. State of Tamil Nadu (1989) Crl. LJ 139 (Mad), this Court has observed as follows :-
While supplying documents, the Detaining Authority has duty to supply only those documents on which it relies on. But if the detenu applies for
any documents which are merely referred to or even not referred to, within the possession of the Detaining Authority, they have to be supplied
without delay because detenu alone knows what is the use of that document to project his case. If the documents are not supplied to him or
supplied only along with the rejection of the representation, his right to make an effective representation becomes curtailed. In such a case
detention order could not be sustained.
In P. Balasubramaniam v. K. Viswanathan, Join Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi
(1990 LW 316 a Division Bench of this Court has observed as follows :-
A person, whose liberty is deprived by an order of detention passed without his being asked to show cause, has been given a very precious right
to make a representation, and for making such a representation, he may need some documents which were not considered by-the detaining
authority and consequently not appended to the order of detention. He is the sole judge of the relevancy of the documents, because he alone
knows what kind of representation he is going to make on the basis of the documents.
However, in the said judgment, it is observed that if valid reasons are given for rejecting the request of the detenu, the non-supply of documents
may not vitiate the order.
As against the said contention of the learned counsel for the petitioners, the learned Public Prosecutor contends that the panchanama with
enclosures was furnished to the detenus and in respect of other documents, he reiterates the contentions in the counter affidavit. But the learned
Public Prosecutor relies on the judgment of the Supreme Court in Haridas Amarchand Shah of Bombay Vs. K.L. Verma and Others, . That case
related to the failure to place certain orders varying bail conditions before the detaining authority did not vitiate the order of detention. The
Supreme Court distinguished an earlier judgment of the Supreme Court and held that the failure to place the said order before the detaining
authority did not vitiate the order of detention and the High Court was right in holding that the said document was not relevant for the purpose of
detention. But the next question decided by the Supreme Court of India is more close to the facts of these cases. The Enforcement Department in
that case had seized bank drafts, cheques, bank pass-books, loose sheets and copies of the same were not furnished to the detenu. The
department in that case made a similar contention that only relevant and vital documents were taken into consideration for reaching the Subjective
satisfaction. The judgment in Ashok Kumar Vs. Union of India (UOI) and Others, was cited in support of the contention of the detenu in that case.
The Supreme Court rejected the contention of the detenu in the following words :-
There is no dispute that all the documents which were considered by the detaining authority in reaching his subjective satisfaction and referred to in
the grounds of detention have been furnished to the detenu. It is not necessary to furnish copies of all the documents including the bank pass books
which are not material and relevant for reaching the subjective satisfaction of the detaining authority merely because they were mentioned in the
panchnama.
However, the Supreme Court had made an observation in that case that no application for supply of documents had been made. In our view, the
fact that in this case, an application had been made for the supply of documents and the same had been rejected by the authorities will not change
the ratio of the judgment of the Supreme Court as quoted above. Learned Public Prosecutor also relies upon the decision in Syed Farooq
Mohammad v. Union of India 1990 Cr LJ 1622 One of the contentions raised in that case was that the bail application and the order passed
thereon were not supplied to the detenu. The Supreme Court rejected the contention on the ground that the detaining authority had not referred to
the same and it cannot be urged that the non-supply of this document prejudiced the petitioner in making effective representation against the order
of detention. Referring to Art. 22(5) of the Constitution of India, the Supreme Court observes as follows :-
The said document was not considered by the detaining authority in coming to his subjective satisfaction and in making the impugned order of
detention. The nonfurnishing to the detenu of the said document i.e., the bail application and the order passed thereon; does not affect in any
manner whatsoever the detenu''s right to make an effective representation compliance with the provisions of Art. 22(5) of the Constitution of India.
This grounds, therefore, is wholly untenable.
On the above pleadings and the precedents cited before us, we have to decide the primary question whether the non-supply of the various
documents referred to by the petitioners vitiates the orders of detention. We have to premise our discussion by stating that the facts of each case
have to be considered before applying the ratio of a judgment. The sum and substance of all the judgments referred to above will show that if on
the facts and circumstances of a particular case, the Court found that the non-supply of a document was vital to the case of the detenu and he was
prejudiced in making a proper representation to the authorities, certainly it would vitiate the order of detention. We are aware of the fact that some
of the judgments of this Court have placed emphasis on the fact that it is for the detenu to decide whether a particular document is relevant or not.
We are of the opinion that we cannot subscribe to such a wide indulgence to the detenu having regard to Khudiram Das Vs. The State of West
Bengal and Others, : 1980CriLJ1487 , all that has been laid down is that copies of documents to which reference is made in the grounds must be
supplied to the detenu as part of the ""grounds"".
Looked from the above angle, let us see what documents the detenus called for and why they were not furnished. In the main the documents
relate to what is called the incriminating documents said to have been seized from the conspirators as well as the bail application and the orders
passed thereon. The respondents stated that whatever documents were relied upon in passing the order of detention were furnished to the detenus.
The emphasis placed by the learned counsel for the petitioners is that having referred to the documents incriminating, it is not open to the
respondents to say that they were not considered while passing the orders of detention. The word incriminating may have relevance to the
prosecutions under the ordinary law. But for the purpose of the detention under Tamil Nadu Act, 14 of 1982 what the detaining authority has to
consider is, whether the person is a bootlegger within the meaning of S. 2(b) of the Act and whether he had acted in the manner contemplated by
S. 2(a)(i) of the Act. The further point to be considered is whether to prevent such a person from acting in a manner prejudicial to the maintenance
of a public order, it was necessary to pass an order of detention and for the purpose of the above subjective satisfaction of the detaining authority
in this case, he had taken into account certain facts and circumstances and certain documents which were admittedly disclosed to the detenus. We
cannot forget the crux of the matter that the detaining authority was satisfied in each case that the detenu was a bootlegger and had illicitly procured
methyl alcohol and had kept the same in a clandestine manner and sold it to the innocent addicts, as a result of such sale of illicit liquor as many as
36 persons died and many other persons were afflicted by several types of illness. We cannot divorce these facts from the request of the detenus
for the supply of certain documents. We are firmly of the opinion that if the documents had nothing to do with the core of the problem, the non-
supply of the documents cannot and will not vitiate the order of detention. In this case, we hold that the order of the authorities rejecting the request
to furnish the said documents which were admittedly not relied upon by the detaining authority have not vitiated the orders of detention. This will
dispose of the first and fifth points raised by Sri. N. T. Vanamamalai.
The second point raised by Sri. N. T. Vanamamalai is contained in grounds (j) and (k) of para 3 of the affidavit filed in support of the writ
petition No. 5648 of 1990. The sum and substance of the argument is that the bail application in Criminal M.P. No. 352 of 1990 had been
dismissed on 12-3-1990 and this fact was not placed before the detaining authority. In answer to this contention, the counter affidavit says that
non-placing of the order on the bail application will not vitiate the order of detention. The detaining authority was satisfied on the materials and
records placed before the authority. On the facts of the case, the non-placing of the bail application and the orders thereon did not cause any
prejudice to the detenus. Learned Public Prosecutor relies on the decision in Syed Farooq Mohammad v. Union of India 1990 CLJ 1622 to which
we have already made reference. He also refers to the decision in Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of
Kerala and Others, wherein it has been held that an order of detention is made on the subjective satisfaction of the detaining authority. It is
therefore not open to the detenu to contend that certain documents should have been placed before the authority and if such documents had been
placed before the authority the order of detention might not have been passed. The following passage in para 74 of the said judgment answers the
contention of the petitioners (at page AIR 1986 SC 699) :
We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or
conviction could have been entertained by the detaining authority on the grounds mentioned in S. 3(1) of the said Act. Whether other grounds
should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, therefore, cannot
be accepted. If that is the position then in view of S. 5A of the Act there was sufficient material to sustain this ground of detention.
13-A. We now come to the third contention of Sri N. T. Vanamamalai. The argument is that at the time of passing the order of detention, all the
accused had been arrested for offences under the Tamil Nadu Prohibition Act read with Ss. 304(2) and 120B, I.P.C. It is stated that the bail
applications had been dismissed since the offences were of a serious nature. Therefore, it is contended that there was no possibility of the detenu
coming out on bail. In the light of such circumstances, the detaining authority has not shown how there was compelling necessity, to detain the
detenus to maintain public order. To appreciate this contention, it is better to refer to the order of detention on this aspect. We will do well to
quote the relevant passages :
I am aware that Thiru. Veerappan, aged 45 is in remand. I am also aware that he will be proceeded with under the normal law in force. However,
I am satisfied that the recourse to the ordinary law will not have the desired effect on him. Hence, I am satisfied that there is compelling necessity
warranting the detention of Thiru. Veerappan under the Tamil Nadu Act 14 of 1982. I believe that there is every likelihood of his release on bail. I
am satisfied that if Thiru. Veerappan is let to remain at large, he will further indulge in activities prejudicial to the maintenance of public order and
that it will not be possible to prevent him from further indulging in activities prejudicial to the maintenance of public order .......
I am aware that Thiru. Veerappan is in remand and there is imminent possibility that he may come out on bail for the offence U/Ss. 4(1-A), 4(i),
4(1)(a), 5, 7 and 12, Tamil Nadu Prohibition Act r/w 304(I) and 120(B) I.P.C. by filing 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. Further, the recourse 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 preventing him from acting in any manner prejudicial to the maintenance of
public order. I am satisfied that the activities of Thiru. Veerappan warrant his detention under the Tamilnadu Act 14 of 1982.
There are series of decisions on this aspect of the case. The following decisions are cited by the learned counsel for the petitioners : N. Meera Rani
Vs. Government of Tamil Nadu and Another, , Ahmedhussain Shaikhhussain @ Ahmed Kalio Vs. Commissioner of Police, Ahmedabad and
Another, and Dharmendra Suganchand Chelawat and another Vs. Union of India and others, . We will only refer to the last mentioned judgment.
After referring to all the previous judgments, the Supreme Court lays down the law as follows at page 1990 Cri LJ 1237:-
The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that
purpose, it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in
detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression
compelling reasons"" in the context of making an order for detention of a person already in custody implied that there must be cogent material
before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and
(b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in
prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
Learned Public Prosecutor refers to the judgment in Sanjay Kumar Aggarwal Vs. Union of India (UOI) and Others, . This judgment seems to be
the latest on the point. Here again all the earlier judgments are referred to. The Supreme Court of India after referring to the decision in
Dharmendra Suganchand Chelawat and another Vs. Union of India and others, and the constitutional Bench judgment in Rameshwar Shaw Vs.
District Magistrate, Burdwan and Another, observes as follows :
It could thus be seen that no decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a
person in custody under any circumstances. Therefore, the facts and circumstances of each case have to be taken into consideration in the context
of considering the order of detention passed in the case of a detenu who is already in jail. We have already, in the instant case, referred to the
grounds and the various circumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this
ground.
To the same effect is the judgment of the Supreme Court in Abdul Sattar Abdul Kadar Shaikh v. Union of India 1990 MLJ 47. The following
passage may be referred to with advantage even in respect of the first contention of the learned counsel for the petitioners :-
When a request is made by the detenu for the supply of bail applications and orders thereon and such a request is turned down, the Court inter
alia has to look into the question whether the detenu is, in any way, handicapped in making an effective representation by such refusal. No authority
has been placed before the Court which goes to the extent of holding that a mere non-supply of any document, whatever its nature may be, to the
detenu per se amounts to the denial of an opportunity under Art. 22(5).
On the question of compelling necessity, we have to render a decision only on the basis of the application of mind by the detaining authority. In
this case, we have already quoted the manner in which the detaining authority has come to the conclusion that notwithstanding the fact that the
detenus are in custody, the chances of their coming out on bail were always prevalent and therefore it was necessary to pass the orders of
detention to prevent the detenus from acting in a manner prejudicial to the maintenance of public order. Therefore, this contention also fails.
The last of the submissions made by Sri N. T. Vanamamalai relates to the fact that the order of detention in W.P. No. 5646 of 1990 gives the
residential address at the end. But the service is contemplated through the Inspector of Police (Law and Order), Panruti. In the order containing
the grounds of detention also, residential address is given at the end but service is contemplated through the Superintendent, Central Prison,
Cuddalore. According to the petitioners, this shows lack of application of mind on the part of the detaining authority. In support of the contention
also, two authorities are cited, namely Abdul Razak Abdul Wahab Shaikh v. S. N. Singh, Commissioner of Police, Ahmedabad 1989 CLJ 2303 :
AIR 1989 SC 2265 and Harbhajan Singh Vs. Union of India and Others, Those decisions do not directly apply to a situation like the present case.
They are of a general nature of non-application of mind relating to the detenu being in custody and his chances of coming out on bail or not. In
addition, our own judgment in Subramanian v. State of Tamil Nadu (W.P. No. 6392 of 1990 dated 27-8-1990) is relied on by the learned
counsel for the petitioners. In that case, the order of detention had given only the residential address of the detenu, though admittedly, the detenu
was in prison. Unfortunately, in that case, the counter affidavit stated that the same was due to a typographical error. We had only stated that the
explanation in the counter affidavit was not convincing. There were other grounds which we had accepted in that case to quash the order of
detention. Having regard to the clear recitals in the order of detention, relating to the fact that the detenus were in prison, it cannot be said that
there was non-application of mind only on the ground that the residential address had been given at the end of the orders of detention. We,
therefore, reject this ground as well.
So far as the argument of Sri R. Subramaniam is concerned, we do not agree with the contention that since the charge sheet had been filed on
22-3-1990, all the documents would not have been available on 15-3-1990 when the orders of detention were passed. The reference to S. 173,
Cr.P.C. does not, therefore, advance the case of the detenus. So far as the contention that the detenus were not furnished with all the documents
mentioned in the mahazar, we have already dealt with this question while considering the arguments of Sri. N. T. Vanamamalai. The toxicological
report to which we have already made reference, gives the percentage of methyl alcohol found in the samples and the medical certificate proves
beyond doubt that consumption of such an illicit liquor would be fatal or cause serious infirmities to the consumers. The argument that toxicological
report was not furnished to the detenus does not appear to be correct because we find the toxicological report in the list of documents was
furnished to the detenus.
Having given our anxious thought to the rival submissions made at the Bar, we are convinced that the orders of detention have been validly
passed and there is no vitiating circumstance justifying interference with the orders of detention of the detenus. Therefore, these writ petitions fail
and they are accordingly dismissed.
Petitions dismissed.