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Judgment
V.S. Sirpurkar, J.—Challenge is to the order dated 25.4.2002 passed by the Commissioner of Police, Coimbatore City u/s 3(2) of the
National Security Act, 1980 directing detention of one Mathivanan @ Mathi, son of NataraJ.
In the grounds of detention, it is specified by the detaining authority that on 15.4.2002 evening, one Mohammed Musthafa, who was working as
Imam in the Muslim Prayer Hall in Tamil Nadu Agricultural University, was assaulted by one Saravanan and Boopalan, who were the office
bearers of the unit of Siva Sena. Out of these persons, Saravanan took knife and stabbed the said Mohammed Musthafa because of which
Mohammed Musthafa was injured. It is then said that when a duel was created because of the assault, some of the persons came there for help
and the assailants ran to the nearby petty shop and started brandishing soda bottles to the public. Saravanan smashed bottles and Boopalan
brandished the knife and caused all the public run helter skelter. The traffic also came to a stand still. A reference was made to the criminal case
registered in Crime No.519 of 2002 under Sections 341, 307 and 506(ii) I.P.C. by the Sub Inspector of Police, B-6, R.S.Puram Police Station,
Coimbatore City. It was then stated that during the course of investigation, the detenu Mathivanan came to be arrested and confession was
recorded from him on 17.4.2002. He was produced before the Judicial Magistrate No.I, Coimbatore and was remanded to the jail custody. It is
relied further that the news of attack on a Muslim Imam created panic and uneasiness among the public in the area and also generated a feeling of
great scare in the City and large police had to be deployed to bring about communal harmony and ease the tension. It is then pointed out that the
detenu was a party to the conspiracy for this incident. Out of the conspiracy of which the detenu was a party along with Saravanan and Boopalan
which pertains doing away with important muslims and also about targeting Mohammed Musthafa. Saravanan contacted the detenu over phone
before and after the attack on Mohammed Musthafa. On the basis of the statement of Mohammed Musthafa and the eye witnesses and the
confession statement of the detenu as well as other accused, the detaining authority came to the conclusion that the detenu''s liberty would be
prejudicial to the maintenance of public order.
It is an admitted position that the detenu was not released on bail during the pendency of the criminal case. However, today, Mrs.Jagadeeswari,
the learned counsel, produced before us the judgment of the criminal case in S.c.No.351 of 2002 which pertains to the very same incident. She
points out that while the first two accused have been convicted, the detenu, who is the third accused, has been acquitted. The learned counsel
therefore says that the very basis of the preventive detention has been knocked down and that the incident would not be available for the detention
of the detenu under the National Security Act. The contention is that the continued detention becomes illegal because it would have to be deemed
that such incident was not available to the detaining authority.
In support of her contention, the learned counsel relies on a judgment of the Division Bench of the Allahabad High Court reported in Puneet Vs.
State of U.P. and others, wherein Justice BRIJESH KUMAR, the Acting Chief Justice (as His Lordship then was), has very clearly held, on the
set of similar facts, that the incident on the basis of which the detention is ordered does not remain available if the prosecution on the basis of this
incident ends up in acquittal of the accused. For that purpose, Allahabad Bench relied on the Full Bench decision in RAM PRASAD
CHAUDHARY 1986 A.L.J. 916 as also on the decision of the Supreme Court reported in 1985 S.C.C. (Cri.) 514 (RAMESH YADAV v.
DISTRICT MAGISTRATE, ETAH). These two are the direct cases heavily relied upon by the learned counsel for the petitioner. The facts in the
reported decision of the Division Bench cited supra are almost identical to the facts of this case. The learned Judge observed:
In our view, the position that emerges is that it is permissible to pass an order of detention even after acquittal of the detenu in the criminal trial,
provided there is subjective satisfaction of the detaining authority that the prosecution has failed because of awe of the accused persons or due to
tampering with the evidence by them or in the circumstances where the detaining authorities are satisfied that nobody dared to come forward to
depose against such accused persons. In the present case, there is no such ground or satisfaction of the detaining authority that the criminal
prosecution failed due to awe of or tampering with the evidence by the detenu and it could not be there, since at the time of passing of the
detention order the order of acquittal was not there. In the present case, merely on the basis of the fact that the prosecution witnesses have not
supported the prosecution case as a result of which the trial ended in acquittal, it is inferred or presumed that there was awe of the accused
persons or there was tampering with the evidence and this is read in the order of detention which was already in operation, in our view, this will
amount to adding a ground in the detention order for detaining the detenu. We are also of the firm view that it is not permissible as by doing so, a
detenu would be deprived of an opportunity to explain through representation or otherwise that there was no tampering with the evidence on his
part nor criminal trial ended in acquittal because of his influencing the witnesses or winning over them by terror. The fact that if detention of a
detenu is necessary even after the acquittal of the accused, all such reasons have to be stated in the grounds which, in this case, is neither
permissible nor can be added. The result is that the sole ground on which the petitioner was detained has become non-existent, hence it is a case
where there exists no ground nor any material in support thereof. As observed earlier, there is no material for the inference that there was any
tampering with the evidence on the part of the accused persons by overawing witnesses by reason of which witnesses did not support the
prosecution case or they were won over by the accused forcibly which necessitate continued detention.
When we see the judgment of the trial Court, it seems that the original complainant also has deposed and this has not been an acquittal on
account of terrorising the witnesses to turn hostile. The trial has gone on the basis of the evidence relied on by the prosecution witnesses and all of
them have not turned hostile. The situation being identical, we respectfully agree with the judgment of the Allahabad High Court and choose to
revoke the detention.
The learned Additional Public Prosecutor, however, almost desperate arguments, tried to point out that the subsequent event cannot be taken
into consideration while considering the above Habeas Corpus Petition. On the part of the detenu, that argument obviously cannot be accepted. If
we find on the basis of which the detention was ordered has itself become non existent, then there will be no question of continuing further
detention of the detenu.
In that view, the Habeas Corpus Petition is allowed. The order of detention is set aside and the detenu is directed to be set at liberty forthwith,
unless he is required in connection with any other case.