Seetha vs Government of Tamil Nadu and Another

V. Ramaswami, J.—This petition has been filed by the wife of the detenu, Duraiswamy Mudaliar, praying for the issue of a writ of habeas

corpus directing the respondents to produce the detenu and set him at liberty forthwith.

By an order dt. 7-12-1983 the husband of the petitioner one Duraisamy Mudaliar was directed to be detained and kept in custody at the

Central Prison by the District Magistrate, Chingalpattu in exercise of his powers u/s 3(1) of the Tamil Nadu Prevention of Dangerous Activities of

Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (for short the Act) on the ground that it was

necessary to prevent him from acting in any manner .prejudicial to the maintenance of public order. The detenu was charged for an offence u/s 4(l)

(a) of the Tamil Nadu 1 Prohibition Act in Crime No. 1894 of 1982 on the ground that he was found to be in possession on 13-10-1982 of

chloral hydrate and has been selling the same to toddy shop owners. Again, he was charged in Crime No. 446 of 1983 for a similar offence u/s

4(1)(a) and 4(1)(i) of the Tamil Nadu Prohibition Act on the ground that he was in possession of 15 packets of chloral hydrate and was

manufacturing and selling intoxicating liquid called Kalvari which is an illicit liquor within the meaning of the Prohibition Act. These two charges

under the Prohibition Act and the activities are mentioned as the grounds on which the detention order was made. It is seen from the grounds of

detention and the counter-affidavit now filed in this case that the confessional statement of the detenu admitting the possession of chloral hydrate

and preparing the intoxicating liquid called Kalvari and selling the same, had been relied on by the District Magistrate while he made the detention

order. The main point raised by the learned Counsel for the petitioner is that such reliance on the confessional statement of the detenu while making

the order of detention vitiates the entire order. There is no dispute that an order made u/s 3(1) of the Act is not open to objective test as it is one

made on the subjective satisfaction of the authority concerned. Therefore, even if the other evidence on record would justify an order of detention,

if the confessional statement made by the detenu could not have been relied on, the order is liable to be set aside as it may not be possible to

determiner what influence his confessional statement had on the mind of the authority in satisfying himself as to the heed for making an order u/s

3(1) of the Act. Therefore, if the confessional statement could not have been taken into account by the detaining authority the whole order will

become vitiated. The learned Counsel for the petitioner contended that u/s 25 of the Evidence Act, such confessional statements are inadmissible in

evidence and that therefore could not have been taken into account by the detaining authority. On the other hand, the learned Public Prosecutor

contended that confessions made to a police officer is not admissible in evidence only ""as against a person accused of any offence"" and that it could

be used in any proceedings other than the offence in respect of which that confession was properly made. According to the learned Public

Prosecutor in proceedings taken under the Act for preventive detention, the detenu is not accused of any offence, he is not put on any trial and that

it is only a preventive action taken by the detaining authority in order to prevent him in acting in any manner prejudicial to the maintenance of public

order. In that sense, it is not a punitive provision and all the evidence collected are in the nature of information furnished to the detaining authority in

order to enable him to come to a proper conclusion especially when the matter is one of subjective satisfaction. In this connection, the learned

Public Prosecutor also relied on certain decisions which we may note immediately. The first of the decisions is Kailash Pandey Vs. State of Uttar

Pradesh and Others, . That was a case in which a person was detained under the provisions of National Security Act pursuant to an order made

by the District Magistrate. The detention was challenged in proceedings under Article 32 of the Constitution on various grounds. One of the

grounds was that a confessional statement made by the detenu which is referred to in the grounds of detention had not been supplied to the detenu.

It was contended that it was not necessary to supply copies of such confessional statement. The Supreme Court held that unless such copies were

served on the petitioner, it will amount to a denial of opportunity to make proper representations. This is not an authority for the proposition that

confessional statement could be relied on in proceedings for preventive detention.

In Khatri and Others Vs. State of Bihar and Others, the Supreme Court considered whether statement recorded by a police officer in the

course of investigation under Chapter XII Cr. P.C. could not be used in proceedings under Article 32 or 226 of the Constitution. It was the

contention of the State ''in that case that Section 162 of the Cr. P.C. bars the use of such statements. The Supreme Court pointed out that by the

express terms of Section 162, -Cr. P.C. the bar is applicable only where such statement is sought to be used ""at any enquiry or trial in respect of

an offence under investigation at the time when such statement was made"". But this protection ""is unnecessary in any proceeding other than an

inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for

example in a civil proceedings or in a proceeding under Article 32 or 226 of the Constitution, and a statement made before a police officer in the

course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Evidence Act."" The Supreme Court

came to this conclusion on the ground that Section 162, Cr. P.C. has been enacted for the benefit of the accused and to protect him against over

jealous police officers and untruthful witnesses and that this protection was however unnecessary in any proceedings other than an inquiry or trial in

respect of an offence under investigation and hence the bar created by the section is a limited bar. If we apply the same logical reasoning, we have

no doubt that the confessional statement made by a detenu could not be relied on by the detaining authority for the purpose of preventive detention

also. Section 24 Of the Evidence Act states that a confession made by an accused person is irrelevant in a criminal proceeding if the making of the

confession appears to the Court to have been caused ""by any inducement, threat or promise of having reference to the charge against the accused

person etc. etc."" Section 25 is enacted to guard against confessional statements being extracted by the police and to prevent obtaining statement by

oppression, torture, undue influence and any other malpractices. Section 25 presumes a confessional statement given to a police officer could have

been obtained under circumstances mentioned in Section 24 itself. If that is the scope and purport of Section 25 of the Evidence Act, we think,

that even if Section 25 in terms is not applicable to proceedings taken under the Act, the rule of that provision by analogy would be equally

applicable to such proceedings as otherwise the very mischief sought to be prevented by the provisions of Section 25 will be very much in the

proceedings under the Act. We are of the view that the protection given to an accused person by Section 25 of the Evidence Act, shall be equally

applied to a person detained under the provisions of the Act as well. In fact the Supreme Court has invoked the principles of the provisions of the

Evidence Act and other provisions in other enactments though they are not specifically applicable to writ proceedings. For instance the principles

of res judicata provided u/s 11 of the Civil P.C. though in terms are not made applicable to Article 226 has been applied by the Supreme Court by

analogy. That was on the ground that the very basis of Section 11 C.P.C. is to prevent multiplicity of proceedings and that principle is equally

applicable to the proceedings under Article 226 of the Constitution. We are therefore of the view that the principles of Section 25 of the Evidence

Act by analogy will have to be applied even in respect of preventive detention under the Act.

The learned Public Prosecutor then contended that the rules of criminal jurisprudence in general are not applicable to preventive detentions and

that therefore even by way of an analogy the provisions of Section 25 of the Evidence Act should not be invoked. In this connection the learned

Public Prosecutor relied on the decision in State of Gujarat Vs. Adam Kasam Bhaya, . We are unable to agree that this decision of the Supreme

Court supports the contention of the learned Public Prosecutor. That was a case where the High Court of Gujarat while quashing an order of

detention applied the rule that the guilt must be proved beyond reasonable doubt. While allowing the appeal the Supreme Court held with

reference to the powers of the High Court under Article 226 of the Constitution that the writ jurisdiction conferred on the High Court is only to see

whether the order of detention has been passed on any material before it and the Court cannot go further and examine whether the material was

adequate or not and that in interfering with the order of preventive detentions, the High Court had misapplied the rule of proving the guilt beyond

reasonable doubt as if it were a criminal proceedings. This decision is only a authority for the proposition that the rule of Criminal Jurisprudence

that guilt shall be proved beyond reasonable doubt is not to be imported in the case of preventive detention. In the case of preventive detention the

orders are made on the subjective satisfaction of the authority concerned while in Criminal proceedings, it is a judicial order which is open to

question in further proceedings in an objective manner. We are therefore unable to agree with the learned Public Prosecutor that the rules of

Criminal Jurisprudence as a whole are not applicable even by an analogy to the proceedings under the preventive detention. Since we are of the

view that the petitioner is entitled to the relief even on this ground alone, it is not necessary for us to go into the other grounds raised by the learned

Counsel for the petitioner. The writ petition is accordingly allowed. The order of detention is set aside and the respondents are directed to set at

large the detenu immediately.