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Judgment
K.M. Natarajan, J.—The two writ petitions were filed by one R. Kumaravelu who is the brother of the detenu R. Ramanathan in W.P. No.
16839 of 1991 and the Secretary of Sri Sundarsana Sabha of which the detenu G. Jothisankar in W.P. No. 16838 of 1991 is the Vice-President,
under Art. 226 of the Constitution of India, seeking for the issuance of writs of habeas corpus quashing the orders of detention dated 27-11-1991
and set the abovesaid both the detenus at liberty. The impugned orders of detention were passed in both the cases by the District Magistrate and
District Collector, Thanjavur District, the first respondent, in exercise of the powers conferred upon him u/s 3(1) of the Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982,
Tamil Nadu Act No. 14 of 1982 (hereinafter referred to as the Act) with a view to preventing them from acting in any manner prejudicial to the
maintenance of public order. The detenu in W.P. No. 16838 of 1991 came to the adverse notice of the first respondent, as a habitual criminal,
with reference to two cases referred to in the preamble of the grounds of detention and he was detained on the basis of the ground case, while the
detenu in W.P. No. 16839 of 1991 came to the adverse notice of the first respondent, as habitual criminal, in view of the three cases referred to in
the preamble of the grounds of detention and was detained on the basis of the ground case. At the outset, it is to be noted that since both the writ
petitions were filed by the same person and since both the detention orders were made on the basis of the same ground case, by consent of both
the parties, they were clubbed together and disposed of by a common order. It may also be noted that the challenge in both the petitions was
made only on common grounds.
The facts which led to the passing of the detention orders can be briefly stated as follows :- The detenu in W.P. No. 16839 of 1991 was elected
as President of Sri Sudarsana Sabha while the detenu in W.P. No. 16838 of 1991 was the Vice-President of the said Sabha. F.L. 1 licence is said
to have been granted to the said Sabha which is having a permit. It is stated that the said Sabha was inspected by police party on 21-11-1991. In
pursuance of the said inspection, since the original F.L. 2 licence was not produced, on 25-11-1991 at 3 p.m. K. Manickavasagam, Sub-
Inspector of Police, Thanjavur West Police Station, R. Andiappan, Inspector of Police, Thanjavur West Police Circle and A. Shanmugavelu,
Deputy Superintendent of Police, Thanjavur Town had been to the office of the Taluk Excise Office, Thanjavur, in connection with certain
clarifications regarding the inspection conducted by police officials on 21-11-1991 regarding proper utilisation of the F.L. 2 licence granted to the
said Sabha under the Tamil Nadu Liquor (Licence) and Permit Rules 1981. Both the detenus were alleged to have been coming out of the Taluk
Excise Office while the police personnel were getting down from the jeep to visit the said office. Both the detenus shouted at the police personnel
and attacked them with knives and aimed at their chest. But, they slipped away from the imminent attack. The detenu Ramanathan was caught hold
by the Sub-Inspector of Police. Then, once again the detenu Ramanathan attempted to attack the Sub-Inspector. At the same time, the other
detenu G. Jothisankar was wielding a knife at the public and raising a hue and cry that if anybody comes nearby, he will be murdered. He then
smashed soda bottles on the road by taking them out from the nearby shop and intimated the public. The broken pieces of soda bottle flew on all
directions. By the said acts of the detenus, the public ran helter-skelter and the bus traffic on the road came to a stand still. The shop keepers ran
away from their shops leaving their goods. Thereupon, the police personnel overpowered both the detenus and relieved them of the knives and
arrested them. They took them to the Thanjavur West Police Station and registered a case in Crime No. 1786 of 1991 against both the detenus
under sections 353 and 307, Indian Penal Code. Thereupon, after observing all the formalities, both impugned orders were passed on 27-11-
1991 against both the detenus.
Though the learned counsel for the petitioner, Mr. B Kumar challenged the detention orders on various grounds, he confined his arguments to
the following grounds. The relevant and vital documents, namely telegrams which had been sent by the petitioner to the police authorities as well as
the Chief Minister and the High Court that the detenus were taken into custody by police even at 11 a.m. on that date, were not placed before the
detaining authority for consideration; nor were the copies of the same supplied to the detenus in spite of the request being made in their
representations. Hence the detention orders are vitiated for non-consideration of the vital documents. Further, the grounds of detention do not
contain a recital as to which category under the Act the detenus fell, though it is simply stated that they acted in a manner prejudicial to the
maintenance of public order. According to the learned counsel, a perusal of the impugned orders of detention would show that the detaining
authority has nowhere recorded a finding that the detenus are goondas. The next ground alleged is that the occurrence in question, even if true it
did not have the reach of the potentiality to affect even the tempo of the society nor has it affected the public order. It is at best a law and order
problem and not a public order problem, culminating in the passing of detention orders against both the detenus. The other ground of challenge is
that the genesis of the occurrence which is said to have taken place is when the police personnel went to the office of the Taluk Excise Office in
connection with certain clarifications regarding inspection conducted by police officials on 21-11-1991 regarding proper utilisation of the F.L. 2
licence granted to the said Sabha. In the grounds of detention it is stated that there is a licence to run the bar in the Sabha. It is also seen that a
copy of F.L. 2 licence was taken from the Sabha. It is one for verification of the same, since the original was not produced for verification, the
police personnel went to the office of the Taluk Excise Office and at that time the ground case is alleged to have taken place. According to the
learned counsel a copy of the F.L. 2 licence with is a vital document was not supplied to the detenus and the non-supply is violative of Art. 22(5)
of the Constitution of India. Even though the they requested for the same in their written representations, they were not supplied to them when
especially they were in jail, and they were deprived of making effective representation. The last submission is that there was hardly any time
available for the detaining authority to have passed the order on 27-11-1991. According to the learned counsel, the police official has filed the
affidavit before the detaining authority on 26-11-1991 evening and the detention orders were passed on 27-11-1991. It is also stated that the
detenus were taken to custody even in the afternoon of 25-11-1991. The only inference that could be drawn in the above circumstances is that the
detention order was not one which was passed by the detaining authority after due application of mind on the part of the detaining authority. Let us
now consider the first submission made on behalf of the petitioner.
In para 4 of the affidavit filed on behalf of the detenu in support of the writ petition, it is alleged that the occurrence which is made a ground for
issuing the order of detention, said to have taken place on 25-11-1991 did not take place. Both the detenus went to the Sessions Court at
Cutcheri Road, Thanjavur, and after signing the records, they came to the compound of the court. Then Shanmughavadivelu, the Deputy
Superintendent of Police, accosted them and wanted them to come to the Superintendent of Police office, which is situated 100 feet away. Both of
them were taken at 11 a.m. and kept in the Superintendent of Police Office and prevented from going out. The deponent who had also gone to
see, finding that the detenus have not been released, informed their counsel Mr. Rajkumar. Since the detenus have not been released, telegrams
were sent to the District Judge, Collector and District Magistrate, Thanjavur and also to the Deputy Inspector General of Police, Tircuchy,
Director General of Police, Madras and the Superintendent of Police, Thanjavur complaining that the detenus had been taken by the Thanjavur
West Police at 11 a.m. and had been kept illegally without any justification and that they have not committed any offence. It is further alleged that
the contemporaneous issuance of telegrams clearly give light to the case trotted out in the grounds of detention that an occurrence took place
opposite to the Excise Office in Kutche Road at 3 p.m. on 25-11-1991. The telegram sent almost contemporaneously had not been placed or
considered by the detaining authority before issuing the order of detention. If he had perused the records, he would have come to the conclusion
that the occurrence is false and it is the product of manipulation by the police authorities. It is stated that the non-placement of this crucial and vital
document in the nature of telegram, which would completely falsify the occurrence, has seriously vitiated the satisfaction and this reduced
satisfaction is no satisfaction at all in the eye of law. In reply to the said allegations, in the counter-affidavit filed by the first respondent, detaining
authority, in para 3, it is averred as follows :
As regards the averments in paragraph 4 of the affidavit, I submit that the detenu was not arrested at 11.00 a.m. in the court premises as alleged.
He and his associate were arrested only after the incident that took place at 3.00 p.m. on 25-11-1991. The telegram referred to had been booked
only after the arrest has been made, i.e. late in the evening. I have also perused the bail application filed on behalf of the detenu which contains the
averments that the detenu was arrested at 11.30 a.m. and I am also aware that it is a false statement of the detenu as he was arrested on at 3.00
p.m. Telegrams were sent at 4.54 p.m. only. This respondent has not referred to the telegrams and not relied on the telegrams in order to arrive at
the subjective satisfaction and hence they are not material documents and the detenu cannot contend that he has been deprived of making effective
and meaningful representation. All the documents releid on in the grounds of detention have been furnished to the detenu. Hence, the contention to
the contrary is not sustainable in law and is denied.
The learned counsel appearing for the petitioner, Mr. B. Kumar submits that if these telegrams were placed before the detaining authority, they
would throw considerable light on the aspect whether the occurrence in question took place or not. Therefore, those documents go to the root of
the entire case and they would have a vital bearing. According to the learned counsel, it is only on the basis of the averments stated in the ground
case that at 3 p.m. there was an incident, these detenus were detained. It is submitted by him that on the very same day telegrams where sent to
the higher police officials, to the court and to the Chief Minister, wherein they have specifically stated that the detenus were taken away at 11 a.m.
when they were coming out of the Sessions Court after signing records and they were illegally detained. Such telegrams sent on behalf of the
detenus which are all vital documents, ought to have been placed before the detaining authority and if they were perused, it would have weighed
the authority one way or other and certainly they are vital documents in order to arrive at subjective satisfaction whether the detenus have to be
detained under the Act or not. Admittedly the telegrams were received even on the very same day, that, is, on 25-11-1991. The only contention
raised by the first respondent detaining authority is that those documents are not material as a false allegations of arrest at 11 a.m. is contained in
the bail application which has been referred to in the grounds of detention and hence the non-mention of the telegram will not vitiate the detention
order. The learned counsel for the petitioner submits that the bail application referred to in the grounds of detention is only to show whether the
detenus are in judicial remand or not. There is nothing in the grounds of detention to show that the detaining authority considered the telegram prior
to the passing of the order of detention. There is nothing in the detention order about the telegram sent by the petitioner that the detenus were taken
into custody at 11 a.m. It is also not stated that it is a false statement as the incident took place at 3 p.m. In any event, the grounds of detention do
not disclose that the aspect of telegram has been taken into consideration while arriving at the subjective satisfaction. In this connection, the learned
counsel for the petitioner drew our attention to the decision of a Division Bench of this court in K. Kannan v. State of Tamil Nadu represented by
the Secretary to Government, Public (SC) Department, Madras 600009 W.P. No. 3475 of 1991 dated 16-8-1991 to which one of us was a
party (Maruthamuthu, J.). In that case a similar question arose in respect of non-placing the retracted statement and mentioning about the retracted
statement in the bail application which has been stated in the grounds of detention. The validity of the detention order was the subject matter of the
writ petition. In that case also a similar contention was put forward on behalf of the respondents that the retracted statement has been referred to in
the bail application and the detaining authority had an occasion to refer the same in the bail application and as such it would not vitiate the order.
While considering the said contention, the Bench of this court referred to the earlier decision of the Supreme Court on this point in Mohd. Toufeer
Mohd. Mufaffer v. The Addl. Secy. to Government of Tamil Nadu (Writ Petition (Criminal) No. 602 of 1989) dated 23-2-1990) wherein it has
been held as follows :
It was submitted on behalf of the detaining authority that once the fact of retraction was borne in mind, while passing the detention order, it did not
matter whether, or not, the detenu''s application of 16th Oct. 1989, was placed before the detaining authority. We would have been able to
appreciate this contention, had we found that the detaining authority was alive to the fact at the time it passed the impugned order. We were taken
through the grounds of detention and we find from paragraph (iii) that the detaining authority described the statement of the detenu dated 27th
Sept. 1989, as a ''voluntary'' statement. However, we do not find anywhere in the grounds of detention evidence regarding the detaining authority
being alive to the fact that the detenu had retracted his statement on the very next day in his bail application dated 18th Sept. 1989, leave aside the
retraction in the subsequent letter of 16th Oct. 1989. The mere reference to the bail application in paragraph (vii) of the grounds of detention is not
sufficient. The reason for making a reference to the bail application is on the question whether or not to make a detention order against the detenu
in jail. Nowhere in the grounds of detention do we find application of mind to the fact that the vital confessional statement considered to be a
voluntary one by the detaining authority had in fact been retracted by the detenu at the earliest possible opportunity when he preferred the bail
application on the very next day ..........
In the above quoted Bench decision of this court, reliance was also placed on another decision of the Supreme Court in Ayya alias Ayub Vs. State
of U.P. and Another, where in the apex court has observed as follows :
It is, therefore, clear form the above observations that the detaining authority ought to have been alive to the factum of retraction. Even though the
copy of the bail application was very much before the detaining authority, the grounds of detention do not disclose that the detaining authority was
alive to the fact that the statement which it described as voluntary was in fact retracted. If after being alive to this fact the detaining authority would
still have reached the conclusion that it was voluntary that would have been a different matter with which this Court would not have interfered. But
since the detaining authority had failed to apply its mind to the fact that the confessional statement on 17th Sept. 1989, was retracted on the very
next day, the detention order stands vitiated.
After referring to both the above two decisions and after distinguishing the decision relied on on behalf of the State respondent represented by the
Public Prosecutor, it was ultimately held in the said case in para 7 as follows :
It is, therefore, abundantly clear on the law enunciated, that it will not be sufficient if bail application forms part of the records supplied to the
detenu, but the order of detention must show that the detaining authority was alive to the fact of retraction in the bail application, while he arrived at
his subjective satisfaction. The judgment of the Supreme Court in Mohd. Toufeer Mohd. Mulaffor''s case W.P. (Criminal) 602 of 1989, order
dated 23-2-1990 will squarely apply to the facts of this case.
Ultimately on the said ground alone, the order of detention in that case was set aside and the detenu was directed to be set at liberty.
In this connection, the learned counsel for the petitioner drew the attention of this court in Mohinder Singh Gill and Another Vs. The Chief
Election Commissioner, New Delhi and Others, :
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may by the time it comes to court
on account of a challenges, get validated by additional grounds later brought out. Commissioner of Police, Bombay Vs. Gordhandas Bhanji, Rel.
on.
The learned counsel for the petitioner submits that what is stated in the detention order is relevant as the challenge is in respect of the detention
order and not on the basis of the counter-affidavit. The learned counsel drew the attention of this court to the grounds of detention wherein the
reference to the bail application is made only as follows :-
I am aware that the detenu is now at Sub Jail, Thanjavur as a remand prisoner in connection with Crime No. 1786 of 1991 of Thanjavur West
P.S. and there is imminent possibilities of his coming out on bail. If he comes out on bail and allowed to be at large, he will indulge in such grave
crimes and thereby act in manner prejudicial to the maintenance of public order.
Beyond that, the bail application has not been relied on for any other purpose. In any event, there is absolutely nothing to show in the grounds of
detention about the case of the detenus in the telegrams that they were taken by the respondent police at 11 a.m. and the further case of the detenu
in the bail application that no such occurrence took place and that they were illegally kept was not referred to in the grounds of detention. Hence,
as observed in the decision of the Supreme Court, we do not find anywhere in the grounds of detention evidence regarding the detaining authority
being alive to the fact about sending of telegram alleging that the detenus were detained long prior to the alleged incident in respect of which they
were alleged to have been detained and the alleged incident is not a true one. The mere reference to the bail application in the grounds of detention,
without any reference to the taking of them into custody by the Inspector of Police at about 11.30 a.m. in the grounds of detention, is not sufficient.
The learned Public Prosecutor vehemently argued that the ratio in those decisions cannot be relied on to the case of the petitioner as in those cases
the confessional statement relied on has been retracted and the retraction of the confessional statement was not placed before the detaining
authority and only a reference to the bail application was relied on. But in the instant case, the detaining authority did not place reliance on the
telegram and the allegations stated in the telegram and set out in the bail application have been taken into consideration and as such, it would not
vitiate. We do not find any merit in the said contention especially when there is nothing to show in the grounds of detention that the averments
stated in the bail application have been referred to in the grounds of detention and have been considered while arriving at the subjective
satisfaction. On the other hand, as rightly contended by the learned counsel for the petitioner, the bail application is referred to in the grounds of
detention only for the purpose of showing that the detenu was already in judicial remand, that there is imminent possibilities of his coming out of bail
and that if he comes out on bail, he will indulge in grave crimes and that there is the necessity for detaining him. Beyond that, the bail application has
not been relied on for any other purpose.
In Union of India (UOI) and Others Vs. Manoharlal Narang, it has been observed in para 11 as follows :-
If the detaining authority had considered the order of this Court, one cannot state with definiteness which way his subjective satisfaction would
have reacted. This order could have persuaded the detaining authority to desist from passing the order of detention since this Court had allowed
freedom of movement. Detention is only a preventive Act. This Court did not find it necessary to restrict the liberty of Ramlal when the order on
the stay application was passed. It may also be that the detaining authority after considering the order of this Court carefully could still feel, that an
order of detention is necessary with reference to other materials which outweigh the effect of this Court''s order. In all these cases, non-application
of mind on a vital and relevant material need not necessarily lead to the conclusion that application of mind on such materials would always be in
favour of the detenu. Application of mind in such cases is insisted upon to enable the detaining authority to consider one way or the other, as to
what effect a relevant material could have, on the authority that decides that detention. In our view the absence of consideration of this important
document amounts to non-application of mind on the part of the detaining authority rendering the detention order invalid.
As observed in the above decision, the telegram would not be material according to the detaining authority to decide the detention of the detenu.
But, what all is required is the application of mind that is necessary to enable the detaining authority to consider the telegram one way or the other.
In this view, the non-placement of the material fact would certainly vitiate the order. In the instant case, the telegram was sent on the same day on
behalf of the detenus that they were taken into custody illegally even at 11 a.m. long prior to the alleged incident. The telegram to the effect that
they were kept unlawfully is certainly a material document. The mere fact that the contents of the telegram was referred were to in the bail
application cannot be a ground to reject the contention of the petitioner. The learned Public Prosecutor vehemently argued that the telegram was
sent only at 4.54 p.m. and even according to the detenus they were arrested 11 a.m. The learned Public Prosecutor contended that the telegram
was not sent at the earliest point of time. He further contended that the incident in question took place only at 3 p.m. and they were arrested only at
3 p.m. In the circumstances, the telegram cannot be said to be a vital document. We do not find any merit in the contention. The mere fact that the
telegram was sent only at 4.54 p.m. on the same day is not material now. The relevant question is whether the version of the detenus that they sent
telegrams on the very same day to the effect that they were taken into custody unlawfully long prior to the alleged incident in ground case was
placed before the detaining authority and whether the detaining authority considered that version while arriving at the subjective satisfaction or not.
The mere fact that there are ample materials before the detaining authority for arriving at subjective satisfaction by the detaining authority is no
answer. Considering the contents of the telegram that they were arrested at 11 a.m., those telegrams are vital documents on behalf of the detenus.
Admittedly they were not placed before the detaining authority. The learned Public Prosecutor mainly took us through the various statements of the
persons recorded in connection with the incident and submitted that this would attract the prejudicial act of the detenus to the maintenance of
public order. We are not now on the question whether the act of the detenus is prejudicial to the maintenance of public order or it is a law and
order problem. The question is whether the telegrams referred to by the detenus are vital documents and whether the non-placement of the same
before the detaining authority would vitiate the order of the detaining authority. When once it is found that they were vital and they were not placed
before the detaining authority for arriving at the subjective satisfaction, the detention order is liable to be set aside on that ground alone. Further as
rightly contended by the learned counsel for the petitioner, we are concerned only with the grounds of detention and whether the detaining authority
has taken into consideration the case of detenu while arriving at the subjective satisfaction of detaining the detenus. We do not find any merit in the
contention of the learned Public Prosecutor that the telegrams are not vital documents and that the non-placement of them would not vitiate the
order of detention. The cases quoted already in connection with the same, namely, Writ Petition (Criminal) No. 602 of 1989 Ayya alias Ayub Vs.
State of U.P. and Another, and the decision of the unreported case of this Court in W.P. No. 3475 of 1991 are in all fours applicable to the facts
of this case and it cannot be distinguished that in the Supreme Court case the retracted confession was not placed. As we have already discussed,
the whole thing is whether the incident as stated in the ground case took place on the day at 3 p.m. so as to warrant their detention and if the
telegram is really true and it is to the effect that they were taken into custody at 11 a.m. it can be presumed that such incident did not take place at
3 p.m. Hence, the detaining authority ought to have considered whether the detenus were taken into custody at 11 a.m. Certainly, the telegram in
this case is a material document. Even though a reference is made in the bail application which is alleged to have been taken into consideration for
arriving at the subjective satisfaction and even though the bail application contains an allegation that they were taken into custody at 11 a.m., there
is nothing to show that the detaining authority was alive to this fact and considered this aspect for arriving at the subjective satisfaction. Applying
ratio laid down in the decision, we have no hesitation in holding that the impugned order is liable to be quashed on the first ground alone, namely,
non-placement of the telegram which is a vital document before the detaining authority while arriving at subjective satisfaction. Since we have taken
the view that the impugned order is liable to be quashed on the first ground alone, we do not propose to do into the other submissions in respect of
which elaborate arguments were addressed and we refrain from giving any finding on those submissions. It is to be noted that sufficiency or
otherwise of the materials available is not the question involved. But, the question involved is with regard to the validity or otherwise of the orders
on account of the non-consideration of the vital documents by the detaining authority while arriving at the subjective satisfaction and in respect of
the same we proposed to decide these writ petitions and ultimately held in favour of the detenus.
In the result, both the writ petitions are allowed and the impugned orders of detention are hereby quashed and the detenus are directed to be set
at liberty forthwith unless they are required in connection with any other cause.
After the judgment has been pronounced, the learned Public Prosecutor made an oral application for the grant of certificate for leave to appeal
to the Supreme Court. Since we have relied on the decisions of the Supreme Court for deciding the question involved in these writ petitions, we
are of the view that there is no substantial question of law of general importance to be decided by the Supreme Court involved in these cases, and
hence leave is refused.
Petitions allowed.