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Judgment
Natarajan, J.—This petition under Art. 226 of the Constitution of India has been filed by the petitioner, Gayathri, for the issue of writ of
habeas corpus for the production of the body of her husband Sundaram alias Mylapore Sundaram, who is undergoing detention at the Central
prison, Madras, in consequence of an order of detention passed against him under the National Security Act by the 6rst respondent.
On 30th April, 1981, an order of detention was passed against the said Sundaram by the first respondent and he was taken into custody. The
grounds of detention and the documents referred to in the said grounds, were furnished to the detenue on 3rd March, 1981. The detenue
submitted his representations, to the Advisory Board against the order of detention; but having failed to convince the Board, the dentine''s wife has
come forward with this petition.
In the grounds of detention, three grounds have been set out in respect of the order of detention against the detenue. The first is, that on 19th
February, 1980 at about 10 a. m the detenue along with his associates, Ashokan, Basha and Chandran, attacked a tea stall by name Easwari Tea
Stall at R. K. Mutt road, Mylapore, threw soda water bottles and caused heavy damage to public properties and injuries to the members of the
public resulting in a case being registered against the detenue and others in Grime No. 605 of 1980 under Ss. 440,448,427 and 336 read with S.
34,1. P. C., of Mylapore. Police station and by reason of the said incident, the detenue had terrorized the shop keepers and the other members of
the public in the area and disrupted normal public life. The second ground is, that on 24th June, 1980, there were clashes between two groups, one
headed by the detenue and the other headed by one Seelan of Srinivasapuram, which lasted almost for a week. These clashes were a sequel to
certain earlier incidents, which had occurred due to the unlawful activities of the detenue and his ground of followers. In the clashes, which
occurred, one Kuttian alias Joha, who was working as an arrack seller under the detenue, was murdered and a case had been registered relating to
the death of Kuttian in Mylapore Police Station Crime No. 1887 of 1980 under SS. 147, 148,149, 324 and 302, I.P.C. on 24th June, 1980.
Following the murder, rioting on a large scale flared up between the two groups. The detenue along with his associates formed an unlawful
assembly and attacked the police force, who were at the spot to quell the riots. The detenue questioned the authority of the police and attacked the
police force and the attack resulted in a Sub-Inspector of Police and a Grade I Police constable being injured. Consequently, the police Iiad to
resisted a case in Mylapore Police Station in Crime No. 1888 of 1980 under Ss.147,l48,149 and 332, I. P. C. Due to the riots and the attack on
the police force, the entire area was terrorized and the members of the public became panicky. The residents of the locality were afraid of coming
out of their houses even to purchase milk and other essential articles and many of the shops had remained closed during the period. There was total
disruption of public order. The third ground read as follows -
Sundaram alias Mylapore Sundaram''s lawless activities continue unabated and the victims do not come forward to lodge complaints for fear of
physical harm and reprisal at his hands. In the affidavit filed in support of the petition, the petitioner has assailed the order of detention on various
grounds. Briefly stated, the order of detention is assailed on the following grounds-(1) All the documents referred to in the grounds of detention
and which have influenced the mind of the detaining authority to pass the order of detention, must be supplied to the detenue but in the instant case,
all the documents have not been furnished and Tience the order is vitiated, (?) The incidents referred to in ground No. l, which had culminated in
the police filing a charge sheet against the detenue and others ought not to have been taken into consideration, because the case had ended in
acquittal. There is no mention in the grounds of detention about the acquittal of the said case and hence there has been material suppression of facts
to the detenue. Moreover, the grounds do not show whether the detaining authority was aware of the acquittal of the detenue in the said case and
whether inspite of such awareness, he had deemed it necessary to pass the order of detention, (3) In any event, the incidents referred to in grounds
1 and 2 were old incidents and are so far removed in point of time from the date when the detention order was passed that they could not have
afforded reasonable material for the first respondent to pass the impugned order. The third ground said to have weighed with the first respondent,
is totally devoid of details and the averments are so vague and general that the detenue cannot be expected to meet the ground properly and
effectively. Further more, there has been material suppression of not only facts, but also grounds and this vitiates the entire order of detention. Even
if the grounds relied on by the first respondent are genuine ones, they can only have a bearing on the law and order situation and can never affect
the maintenance of public order and as such, they cannot afford materials for an order being passed under the National Security Act. Lastly, there
has been considerable delay in the passing of the detention order and the said delay has not been satisfactorily and properly explained. Hence, on
the ground of delay alone, the detention order deserves to be quashed.
The several averments contained in the petitioner''s affidavit have been met by the respondents in a detailed counter-affidavit filed by them. As
we will be referring in detail to portions of the averments contained in the counter-affidavit, we do not think it necessary to refer in extenso at this
juncture the various statements contained in the counter- affidavit. Suffice it to say that grounds 1 and 2 are characterised as truthful occurrences
and affording adequate justification for the passing of the detention order. As regards ground No. 3, it has been stated that though no recorded
incident affecting maintenance of public order has been cited in the ground, mention has been made about the lawless activities of the detenue
Subsequent to the two earlier incidents and the gravamen of the ground has been based on the entries on records in the dessier sheet maintained
for detenue. The dessier sheet itself was not furnished to the detenue as it was considered not desirable to furnish the same in public interest. It is
also stated that the acquittal of the detenue in the case referred to in the first ground was known to the first respondent before the passing of the
detention order; but even so, the first respondent had deemed it fit to place reliance on that ground also to pass the order of detention. Lastly, it
has been stated that the impugned order has been passed in strict conformity with the provisions of the National Security Act, and such, the order
is not liable to be assailed by the petitioner.
In support of the petitioner''s contentions, Mr. Kumar Rajaratnam advanced various arguments and also cited several authorities before us. The
learned Advocate General appearing for the respondents advanced counter arguments to sustain the order and placed for our consideration certain
authorities in support of his contentions. We shall now proceed to deal with the arguments of the learned counsel on both sides and the authorities
cited by them.
The petitioner''s counsel assailed each of the three grounds and also advanced certain arguments of a general nature. We shall first proceed with
the arguments relating to each of the three grounds and then deal with the general criticisms leveled by the counsel.
The first argument was that the incidents referred to under ground Nos. l, and 2, had taken place long prior to the passing of the detention order
and as such, these incidents could not have created a reasonable belief in the mind of the first respondent that an order of detention should be
passed against the detenue in the interest of public order. In support of this argument, the petitioner''s counsel cited Rabindra Kumar Ghosel alias
Buli Vs. The State of West Bengal, We are unable to accept the argument of the learned Counsel. It is no doubt true that the incidents referred to
in grounds 1 and 2 has taken place several months before the order of detention was passed. But merely on that score, it is not open to the
detenue to say that the subjective satisfaction formed by the first respondent is an illusory one. As pointed out in Golam Hussain v. Police
Commissioner, Calcutta AIR 1974 S.C. 1536, and Gora Vs. State of West Bengal, , the test of proximity is not a rigid or mechanical test to be
blindly applied as merely counting the number of months between the offending acts and the order of detention.... The prejudicial act of the detenue
may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to
clandestinely and secretly carry on such activities and in such a case, the detaining authority may reasonably feel satisfied that the prejudicial act of
the detenue which has come to light, cannot be solitary or isolated act, but must be part of a course of conduct of such or similar activities
clandestinely or secretly carried on by the detenue and it is, therefore, necessary to detain him with a view to prevent him from indulging in such
activities in the future. If the previous incidents were sufficient to make the detaining authority believe justifiably and bona fide that the detenue was
a confirmed trouble-maker and the incidents relating to him were not isolated or sporadic acts, but were reflective of dangerous behavior of a
sustained nature, it is open to the detaining authority to take note of these incidents in spite of the fact that they had not occurred immediately
before the passing of the order of detention.
The second argument was, that, in any event, the first incident ought not to have been taken into consideration because the case registered
against the detenue relating to that incident, had ended in acquittal. In our opinion, this argument must also fail, because it proceeds on the mistaken
assumption that preventive detention and prosecution are anonymous which is not the case as pointed out in Haradhan Saha Vs. The State of West
Bengal and Others, The nature of the two proceedings is different ; in a prosecution, an accused is sought to be punished for a past act ; in a
preventive detention, the past act is merely the material for inference about the future course of probable conduct on the pan of the detenue. It is
therefore open to an authority to pass an order of detention against the detenue on the basis of an incident even after lodging a first information
report and initiating steps to prosecute him the Criminal Procedure Code. On account of the position it has been held by the Supreme Court in
Mohd. Salim Khan Vs. Shri C.C. Bose and Another, that the discharge of a detenue in a criminal case, cannot deter a detaining authority from
passing an order of detention against him ; if the detaining authority felt that the evidence would not be adequate to secure a conviction but
nevertheless the activities of the detenue were of such a nature that the passing of an order of detention would be justified in the interest of the
public.
Learned counsel for the petitioner infer alia urged that the grounds served on the detenue did not refer to the acquittal of the detenue of the case
registered on the basis of incident No. 1, and this omission vitiated the order in a two-fold manner, namely, that the detenue was kept in the dark
about his acquittal in the case, and secondly, the detaining authority may have passed the order without realising that the detenue had been
acquitted in respect of that case. Both these arguments are devoid of merit because the detenue cannot plead ignorance of his acquittal in the case.
More than anyone, he would have had knowledge about his acquittal in the case and hence it is futile to say that the detaining authority should have
brought to his notice the factum of acquittal in the case registered on the basis of the first incident. As regards the second criticism, the first
respondent has stated in the counter-affidavit that he was aware of the acquittal of the detenue in the first case, but in spite of it, he deemed it
necessary to pass the order of detention. It cannot therefore be said that the first respondent had passed the impugned order without a full
knowledge of all the facts and without proper application of mind.
The next argument of the petitioner''s counsel was, that even if grounds 1 and 2 can be said to afford materials to the detaining authority to pass
the impugned order, there has been delay in the passing of the order, in that the order has been passed only on 30th April, 1981, whereas the
National Security Ordinance, 1980, was promulgated on 22nd September, 1980 and the National Security Act was passed on 27th December,
1980. The argument does not carry conviction because the first respondent has stated in the counter-affidavit that he was conferred powers to
take action under the Act only late in December, 1980. Thereafter, it has taken time for the first respondent to collect the materials against the
detenue and the official machinery would have certainly required a reasonable amount of time to move in the matter. Moreover, the authority may
have also watched the detenue for some time to whether there was any change in the behavior of the detenue after the passing of the Act. On
account of these factors, we are unable to sustain the contention that the detaining authority has acted in a lethargic manner and the lack or
promptness is itself a strong factor to reject the contention of the State that the order had been passed in the bona fide belief that the dentine''s
detention was considered necessary in the interest of public order.
As regards the incident mentioned in ground No. 2, it was submitted that the detenue could not have had a hand in the causing of the death of
Kuttian alias Seelan, since he is alleged to be a member of the detenu''s own group and further more, the detenu''s name does not find a place in
the first information report that had been registered with reference to that incident. The infirmity contained in the argument is, that the detenue is not
charged for ceasing the death of Kuttian; but is accused of having instigated the clash that followed the death of Kuttian and to have incited his
followers to attack the police party. According to the State, on account of the instigation made by the detenue, there were violent clashes and the
members of the police party were attacked and a Sub-Inspector of Police and a Grade I constable had sustained injuries. In the first information
report, a copy of which has been given to the detenue, it has been stated that there was disturbances between the people of Srinivasapuram and
Karakuttai, that on receipt of information a police party rushed to the place, that a crowd of 1000 persons had assembled there and were behaving
violently, that the trouble-makers were armed with soda water bottles and deadly weapons, that the members of the police party were attacked
and that a Sub-Inspector and a constable were injured, that the mob was chased by the police and three of the trouble-makers viz., Seelan,
Panchanathan and Shanmugham were caught hold of. In such circumstances, the names of the three apprehended persons alone have been
mentioned in the first information report. Merely because the detenu''s name does not find a place in the first information report he cannot contend
that he had nothing to do with the incident. On the foot of the first information report, a case was registered in Crime No. 1888 of 1980, and the
injured Sub-Inspector and constable had been examined. In their statements under S. 161 (3), Crl. P.C., they have clearly stated that the detenue
instigated the crowd to attack the police. These statements have been recorded on 24th June, 1980 itself, i.e., on the same day on which the case
was registered. Copies of these statements have been furnished to the detenue. In such circumstances, it is not open to the detenue to say that he
had nothing to do with the incident and this may be seen from the fact that his name does not find a place in the first information report. In the case
diary also, the Inspector has stated that search was made for the detenue and other accused; but they could not be apprehended, as they had gone
into hiding. Hence even though the detenu''s name is not mentioned in the first information report, his active involvement in the incident, has come to
light during the investigation that had started immediately after the case was registered. It has been held in Samir Chatterjee Vs. State of West
Bengal, that merely because the detenu''s name did not figure in the first information report, but his participation in the unlawful activities came to
light during the investigation of the case, the detenue cannot be heard to say that the concerned incident ought not to have been taken into
consideration and in any event, the incident cannot form the basis for a detention order being passed, since the ground suffered from the vice of
vagueness.
So far as the third ground is concerned, Mr. Kumar Rajaratnam made a forceful attack on the wording of the ground'' as well as the manner in
which it has been made use of copy passing the detention order. We have already extracted ground No. 3 in an earlier portion of this order. The
attack on the ground was that the wording is vague and general, that though the facts of the alleged lawful activities could have been withheld under
S. 8 (2) of the Act on the ground of public interest, the nature of the unlawful activities should have been disclosed and the failure to do so, will
constitute material suppression of grounds and will vitiate the entire order. It was then argued that in the counter-affidavit, there is reference to the
dossier maintained against the petitioner being looked into by the first respondent with reference to ground No. 3 ; but a copy of the dossier has
not been furnished to the detenue and on that score also, the order is vitiated. These criticisms have met in the counter-affidavit as follows-
As regards the contention raised in Para 13 of the affidavit, I submit that as stated earlier the detenue would not be entitled to know the contents of
the History sheet as per the provisions of S. 8 (2) of the National Security Act and as it is considered the disclosure of the contents of the History
sheet to the detenue would be against public interest and therefore the exception has been taken in strict conformity with the provisions under S. 8
(2) of the National Security Act, which provides Nothing in Sub-s.(l) shall require the authority to disclose the facts which it considers to be against
the public interest to disclose.
Having regard to the nature of the ground, we do not think the detenue can make an issue of the fact that the details of his lawless activities and the
names of the victims had not been disclosed to him and this would constitute a serious irregularity affecting the validity of the detention order. When
victims are afraid to complain about the unlawful activities of the detenue and the harm and damage sustained by them at his hands, it will be
unrealistic to expect the police authorities to give the detenue the details and facts of his unlawful activities. Such disclosure would put the timid and
helpless victims and complainants at great disadvantage and make then vulnerable to further attacks by the detenue and the members of his group.
The petitioner''s counsel referred to Mohd. Alam Vs. State of West Bengal, Bablu Das Vs. The State of West Bengal, Golam alias Golam
Mallick Vs. The State of West Bengal, and Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, buttress his argument that when
the ground set out in the detention order, in the instant case ground No. 3, in vague, then it would amount to not affording a proper opportunity to
the detenue to make effective representation against the order of detention passed against him. We have given our careful consideration to this
argument; but we find that the grievance of the detenue is unsustainable. As is well known in these cases, the question as to whether the ground
furnished to a detenue contain adequate materials to enable him to make an effective representation or whether the grounds are so vague as to
deprive the detenue of proper opportunity to make his representations, is always one of fact and the question has to be decided with reference to
the facts of each case. Viewed from this angle, we find that the safety of the victims and the maintenance of public order, both of which would
constitute public interest, have stood in the way of more details being given to the detenue in ground No. 3 than what are contained in the memo
given to the detenue. That apart, the detenue himself does not appear to have felt handicapped in making representations regarding ground No. 3
and the grievance of lack of opportunity has been projected for the first time in the affidavit filed by the petitioner on behalf of the detenue. We are
led to make this observation, because the detenue has not complained of vagueness as regards ground No. 3, when he submitted his
representation to the Advisory Board. In para-10 of his representations, he has met ground No. 3 as follows-
I respectfully submit apart from two instances sighted (sic) to which I have referred to above, there has been wild allegations made against me
about my activities I submit it is very easy for the police to make allegations without even establishing a prima facie case. These allegations are not
based on facts. It is purely the opinion of the police and has been done to tarnish my image and arises out of mala fide consideration. I
unconditionally state that in the event of my release I shall not in any way disturb the public order. I have in this petition confined myself purely on
the question of facts and I am not in any way implicated in a court of law with respect to the other allegations of my unruly behavior. If these
allegations were true, certainly the authorities could have filed a case against me and I would have an opportunity to prove my innocence. In these
circumstances, it is impossible form to prove my innocence with respect to the other allegation stated in the memorandum except to deny them as
totally false.
In view of the manner in which the detenue himself had understood ground No. 3 and made representations, it appears to us that the grievance
expressed by Mr. Kumar Rajaratnam about the ground being vague is more imaginary than real. Moreover, the law does not also require that
irrespective of the interests of the State the entire materials in the possession of the detaining authority must be brought to the notice of the detenue.
The right of a detenue under Art.22 (5) of the Constitution to be furnished particulars relating to grounds of detention, is subject to the limitation
contained in Art.22 (6) whereby disclosure of facts considered to be against public interest, cannot be required This position is well settled and we
need only refer to the decision of the Supreme Court in Lawrence Joachim Joseph D''souza Vs. The State of Bombay, The wording in S. 8 (2) of
the National Security Act is almost identical with the wording contained in Art.22 (6) of the Constitution of India. It is also opposite to mention
here the pronouncement of the Supreme Court on the question whether all the particulars considered by the State Government while approving the
order of detention passed by an officer duly empowered in that behalf, should be communicated to the detenue to enable him to make effective
representation and whether the failure to furnish all these particulars will vitiate the order of detention. Before we refer to the dictum of the Supreme
Court, we may extract Sub-s.(4) of S. 3 of the National Security Act. S. 3 is the relevant section, under which an order of detention may be
passed by the Central Government or the State Government or by an officer empowered in that behalf. Sub-S.(4) reads as follows-
3(4). When any order is made under this section by an officer mentioned in Sub-s. (3) he shall forthwith report the fact to the State Government to
which he is subordinate together with the grounds on which the order has been made and such other particulars) as, in his opinion, have a bearing
on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless"" in the meantime, it has been
approved by the State Government (emphasis supplied by us) (proviso omitted)
The identical words occurring in S. 3 (3) of the Maintenance of Internal Security Act, came to be interpreted by the Supreme Court in
Khudiram Das Vs. The State of West Bengal and Others, . The Supreme Court held that in addition to such basic facts and materials which
constitute the grounds of detention, the District Magistrate is also required to send to the State Government under S. 3 (3) such other particulars as
in his opinion have bearing on the matter. The Supreme Court observed that, ''obviously, these ''other particulars'' would be different from the basic
facts and materials, which constitute the grounds of detention and would not be the material which has gone into the formation of the subjective
satisfaction of the District Magistrate and 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 detenue. Having regard to the these facts, we cannot countenance the argument of Mr. Kumar
Rajaratnam that ground No. 3 is vague and devoid of particulars and these factors have caused prejudice to the detenue and hence the order of
detention should be quashed.
Yet another argument advanced by the petitioner''s counsel was that the first respondent had passed the impugned order on the basis of not
only the grounds and documents furnished to the detenue, but also on the basis of an affidavit filed by Thiru S.P. Somasundaram, Inspector of
Police, prohibition Enforcement wing, Mylapore police division, in Crl. M.P. No. l of 1981, and a copy of that affidavit has not been furnished to
the detenue and hence there has been suppression of material facts and the omission goes to the root of the matter. This contention has been
raised, since the detention order mentions about the first respondent having read the affidavit of Thiru S. P. Somasundaram, Inspector of Police
and the documents in support thereof before passing the order of detention. In the counter-affidavit also, it has been stated as follows :
I was appraised of the activities of the detenue through an affidavit filed by Thiru S.P. Somasundaram Inspector of Police, Prohibition enforcement
wing, -Mylapore division, Madras city, only on 29th April, 1980. I, after having carefully gone through the affidavit and supporting documents and
after verifying the same, had come to the subjective satisfaction and passed the order of detention on 30th April, 1981.
On a reading of the order and the abovesaid portion of the counter affidavit, we do not think that the counter-affidavit can be considered as a
material document in the case and that a copy of the affidavit should also have been furnished to the detenue. The affidavit as the very name
suggests, should have only formed a covering letter and it could not have contained more particulars than what is contained in the documents
furnished to the detenue. Moreover, the first respondent has clearly stated that he had gone through the documents relating to the detenue and
satisfied himself about the correctness of their contents and thereafter only passed the order of detention. Moreover, in his representation to the
Government, the detenue has not complained that he had not been furnished with a copy of the introductory affidavit and the said omission having
handicapped him in any manner.
The last ground urged by the petitioner''s counsel was that even if the grounds leveled against the detenue were true they would only disclose
that the detenue was in the habit of creating law and order problems and it can never be a case of the detenue being a hazard to the public order
by his being at large. On that assumption, the counsel referred to an authority viz., Nagen Murmu v State of W.B. AIR 1973 S.C, 544, and argued
that there was no warrant for the first respondent to have passed the impugned order. On going through the judgment, we find that the facts in that
case were entirely different. In the instant case the grounds mentioned against the detenue are not incidents relating merely to the disruption of law
and order, but constitute acts which would have an adverse effect on the even tenor of society life affecting the interests of a large section of the
public. In the very decision cited by the counsel, the words ''public order'' have been construed to mean ''the even tempo of community life in a
locality of a substantial section of society''. We may pertinently refer to another decision of the Supreme Court on this question, viz, Ram Bali v.
State of W.B. It was held by the Supreme Court therein as follows-
Public Order is necessarily an elastic concepts which is, in any case> wider than the ''security of the State''...a category separated in the Act from it
by the disjunctive ''or''. It is true that, in some cases, the facts may so clearly indicate that an ordinary criminal prosecution would suffice that the
necessity to order the detention of an offender for one of the objects of the Act could not be said to be reasonably made out. The case before us,
however> is not one of those cases. We have to be careful to avoid substituting our own opinion about what is enough for the subjective
satisfaction of the detaining authorities with which interference can be justified only if it is clear that no reasonable person could possibly be satisfied
about the need to detain on the grounds given, in which case, the detention would be in excess of the power to detain. The required satisfaction
must have reference to a need to prevent what is anticipated from the detenue The past conduct or activity is only relevant so far as it furnishes
reasonable grounds for an apprehension. Prevention and punishment have some common ultimate aims; but their immediate objective and modes
of action are distinguishable.
In view of this pronouncement, we cannot accept the argument that the grounds set out against the detenue would at best necessitate action being
taken for maintenance of law and order and not for preserving the safety of public order.
Having dealt with all the contentions of the learned counsel for the petitioner, we find that none of the contentions is a tenable one. We are
therefore of opinion that the impugned order passed by the first respondent does not suffer from any illegality or irregularity so as to merit the
setting aside of the order by us. The petition had therefore to fail and will accordingly stand dismissed.