P. Sankaran vs The State of Tamil Nadu and Others

M. Chockalingam, J.—Challenge is made to the order of the second respondent in No. 4/NSA/2008 dated 8.5.2008.

Affidavit filed in support of the petition along with grounds of attack of the order under challenge and all materials, in particular, the order under challenge are perused.

The Court heard the learned Counsel for the petitioner and also the learned Additional Public Prosecutor on the contentions raised.

Concededly, pursuant to the recommendation made by the sponsoring authority that the detenu was involved in Crime No. 784/2008 u/s 153(A)(b) and 505(ii) IPC and was to be detained under the National Security Act, the detaining authority, after going into the materials available, recorded that he arrived at a subjective satisfaction that the detenu acted in the manner prejudicial to the maintenance of public order and hence, it was a fit case where the the detenu has got to be detained under the National Security Act 1980 and made the order under challenge.

Advancing his arguments on behalf of the petitioner, the learned Counsel in his earnest attempt would submit the following grounds:

(i) The detaining authority has pointed out in his order that there was possibility of the detenu coming out on bail by filing bail application since in similar cases, bails were granted by the concerned Courts or the High Court. Pointing to the observation made, the learned Counsel would submit that the statement made by the detaining authority that there was possibility of the detenu coming out on bail by filing bail application was without any material whatsoever. On the day, when the matter came up for passing the order, it was not the case that any bail application was filed or pending and thus, it was without any material whatsoever.

(ii) Secondly, a representation was sent to the first respondent on 5.7.2008 itself alleging that the detenu was mentally retarded and he required treatment and that was not considered by the authority. Hence, on this ground also, he has got to be set at liberty. Thereafter, this Court was moved and orders were obtained to get the treatment and thus, it would be quite clear that he was mentally retarded and that the representation made on 5.7.2008 remain unconsidered by which the order of detention would suffer.

(iii) Thirdly, the ground of allegation to invoke the provisions of the National Security Act and also the registration of the case was that the detenu was in possession of a two litre Bisleri Water Bottle tied with rope, alleged to be containing cow dung mixed with human excreta with a view to pour on the statue in order to instigate the caste clashes in Tamil Nadu and also induce the public with an intention to disrespect the public order and causing damages to the general public and Government properties. Mere possession of the same was the basis for the case. However, no material was placed before the detaining authority that it was either placed before the concerned Court where the first information was lodged or the same same was sent for chemical analysis and what happened to the said property remain unknown. The detaining authority should have asked for clarification but not done so. This would clearly indicate the non-application of mind on the part of the detaining authority. On this ground also, the order under challenge suffers and hence, the same has got to be set aside.

Contrary to the above contentions, the learned Additional Public Prosecutor would submit that-

(i) Insofar as the first contention that there is imminent possibility of the detenu coming out on bail is concerned, the detaining authority came to know from the close relatives of the detenu that they were attempting to file a bail application and in that regard, statements were been recorded and thus, it is not correct to state that he had not attempted to move the Court for bail and hence, the observation made by the detaining authority is perfectly correct.

(ii) Insofar as the second contention that a representation was given on 5.7.2008 and not considered by the detaining authority is concerned, actually, the said representation was considered and a G.O. was also passed and he was taken from the Central Prison to the Hospital in Kilpauk at Chennai and he was given treatment. Under the circumstances, it is not correct to state that the representation was not considered and that treatment was not given to the detenu.

(iii) Insofar as the third contention that he was found to be in possession of a 2 litre Bisleri water bottle containing cow-dung mixed with human excreta is concerned, a two litre water bottle containing cow-dung mixed with human excreta was seized from the detenu in the presence of the witnesses under a cover of athatchi and hence, the recovery of the same cannot be questioned. Under the circumstances, it is not sent to the Court or sent for chemical analysis would not in any way affect the averments made in the order. Thus, the grounds raised by the learned Counsel for the petitioner do not carry merits and hence, the same has got to be rejected.

The Court paid its anxious consideration on the submissions made. Pursuant to the registration of the case in Crime No. 784/2008 u/s 153(A)(b) and 505(ii) IPC against the detenu, he was arrested. It could be seen from the order under challenge that the detaining authority had arrived at a subjective satisfaction that the activities of the detenu is prejudicial to the maintenance of public order and he was to be detained under the National Security Act.

After scrutiny of the materials, the Court is of the considered opinion that the order under challenge suffers on the following grounds:

(i) Insofar as the first ground of attack that there was possibility of the detenu coming out on bail since in similar application, bail was granted by the concerned Courts or High Court would clearly indicative of the fact no bail application was available in the hands of the detaining authority at the time of passing the order. The contention put-forth by the learned Additional Government Pleader that the detenu was making attempt to move a bail application at that time cannot be a ground for passing the detention order. The detaining authority has observed in his order that "Hence, I am also aware that there is possibility of his coming out on bail by filing bail application for the above case since in similar cases bails are granted by the concerned Courts or High Courts." The statement so made is bald and without any materials. It appears, in similar cases, bails are granted by the concerned Courts or High Court but this cannot be a ground for passing the order of detention one done in the present case.

(ii) Secondly, insofar as non-consideration of the representation made on 5.7.2008, the Court after hearing the learned Additional Public Prosecutor is of the considered opinion that the ground urged by the petitioner''s side cannot be accepted for the simple reason after his representation was made on 5.7.2008, there was an occasion for the detaining authority to consider the same and a G.O. was also passed and the detenu was also taken from the Central Prison to the Hospital in Kilpauk at Chennai where he was given treatment. Hence, it cannot be stated that the representation made on 5.7.2008 remain unconsidered. Hence, the ground urged by the petitioner''s side has got to be set aside.

(iii) The third ground raised by the petitioner, in the considered opinion of the Court is the strong one. The whole case was registered by the sponsoring authority in Crime No. 784/2008 under the provisions referred to above only on the ground that the detenu was found in possession of a 2 litre Bisleri Water Bottle containing cow-dung mixed with human excreta and the same was recovered by the concerned officer under athatchi in the presence of witnesses. Now, at this juncture, it is pertinent to point out that whether the bottle was actually containing cow-dung mixed with human excreta has to be established before the Court of criminal law and when this is the basis for the entire case while it is alleged to have been recovered by the police officer concerned why it was not sent to the Court concerned or why a requestion was not made to the Court for sending it for chemical analysis remain unexplained. As rightly pointed out by the learned Counsel for the petitioner, even when it was not sent to the Court or sent for chemical analysis till the time, it could not be made certain that it contain those items. In the absence of the same, naturally, a query should have been made by the detaining authority before passing the order of detention but he has not done so. He has acted on the averments made and hence, it would reflect the non-application of mind on the part of the detaining authority. Therefore, this ground, in the considered opinion of the Court would be sufficient to vitiate the order of detention.

Hence, on the ground No. (i) and (iii), the Court is of the considered opinion that the order of the detaining authority has got to be made undone by upsetting the order and accordingly, the impugned order is set aside. The detenu is directed to be set at liberty forthwith unless his presence, in accordance with law, is required in connection with any other case. Accordingly, the Habeas Corpus Petition is allowed.