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Judgment
Arunachalam, J.—These three habeas corpus petitions are disposed of together, since all the detenus concerned are stated to be involved in
the same ground crime. Petitioners Sheik Meeran, Sel-vam, and Radhakrishnan alias Radha are the detenus themselves. Separate orders dated
30.1.95 were passed under Tamil Nadu Act 14 of 1982 by the first respondent, District Magistrate and Collector Kanyakumari District at
Nagercoil, categorising these petitioners as ''goondas'' and stating that there was need to pass the impugned orders to prevent them from acting in
any manner prejudicial to the. maintenance of public peace and law and order.
Detenu in H.C.P.No.275 of 1995 had four adverse cases to his credit, before he got himself involved in the ground crime, which had occurred
on 29.11.1994 at Nagercoil. Those adverse crimes stood registered in Vadasery, Boothapandy, Kanniyakumari and South Thamaraikulam police
stations, for offences punishable under sections 147, 148 302, 379 and 307 IPC as well under sec.5 of Indian Explosives Substances Act. All the
prior cases were under investigation. In one case charge sheet was about to be filled.
Detenu in HCP No. 277 of 1995 has three adverse cases, in his record and in all those cases he is a co-accused with Sheik Meeran, detenu in
HCPNo.275 of 1995.
Detenu in HCP No. 278 of 1995, has two adverse cases to his credit and in both the cases he has been arrayed as an accused with the detenus
in H.C.P. Nos. 275 and 277 of 1995.-
It will be necessary to state briefly, the details about the ground crime, which led to the clamping of these preventive orders. At or about 10-45
a.m. on 29.11.1994, an accused Ayyavoo, was present in the court of Judicial Magistrate No. II, Nagercoil, the said case having been charge
sheeted by Vadasery Police Station. These three detenus, along with other associates formed themselves into an unlawful assembly in the Court
premises, armed with deadly weapons and country made bombs. Detenu in H.C.P.No.275 of 1995 threw a country bomb between the seat of the
Judicial Magistrate and the record room of the Court. Bomb blasted with smoke. People present in the said Court, out of fear ran helter-skelter.
Meantime, four other persons, armed with deadly weapons, were proceeding towards Ayyavoo from the eastern side. On seeing this, Ayyavoo
rushed inside the Court Hall. Ayyavoo was chased. Detenu in H.C.P. No. 275 of 1995 then entered into the Court Hall, by which time, Ayyavoo
had neared the table of the Record Clerk. This detenu repeatedly attacked Ayyavoo on his head with a vetturuval. Similarly, detenu in H.C.P. No.
277 of 1995. also attacked Ayyavoo with another vettuarvel. In that process, Record Clerk of the Court, sustained injuries on her hand. As soon
as Ayyavoo fell down, detenu in H.C.P. No. 278 of 1995 stabbed him repeatedly. Due to these hard-core activities of the detenus in the company
of their associates, judicial officers, lawyers and the members of the public ran away from the Court premises in panic and fear. Associates of the
detenus, attacked persons coming to Court, and threw a country made bomb, which did not, however, explode. The brain matter scattered,
Ayyavoo was dragged outside the Court Hall by the detenus and their associates. The body of Ayyavoo was thrown out, over the compound wall,
to land on the ground of Sethu Lakshmi Bai Higher Secondary School. Thereafter, detenus took to their heels. Due to the terror created by the
activities of the detenus, the movement of people inside ant outside the Court compound came to a grinding halt. Detenu Sheik Meeran
surrendered before Judicial Magistrate, Cuddalore on 2.12.1994 and was judicially remanded. Similarly, the other two detenus also surrendered
on the same day before the same court, to be dealt with similarly. After follow-up action, the impugned orders of detention were passed.
Mr.A.K.S.Thahir, Learned Counsel appearing on behalf of the petitioners, urged several contentions to have the impugned orders viced. We
will take them up one by one and dispose them of on their inherent merits.
The first submission was that there was no communication to the close relations of the detenus, within a reasonable time, about the passing of the
impugned orders and the jails in which the detenus stood confined. That this argument has no merit is apparent from the facts, which we will
presently narrate, on having been furnished to us, by Mr.I.Subramanian, learned Additional Public Prosecutor. P.M.S.Ali, father of detenu Sheik
Meeran, was communicated of these two vital facts, on 2.2.1995 under his acknowledgment. Similarly, Chinnathurai Nadar, father of detenu
Selvam was informed off these two salient facts, by a communication dated 2.2.1995, receipt of which he has acknowledged. Velappan, Nair,
father of detenu Radhakrishnan @ Radha has received a similar communication, on 2.2.1995. It is clear that within three days of the passing of the
impugned orders, close relations of the detenus were made aware not only about the passing of the impugned orders, but also about the jails in
which they stood confined. This ground has no substance in it.
The second submission was, that there was no compelling necessity, to pass the impugned orders, since there was no possibility, much less
imminent, of the detenus getting themselves released on bail, to indulge themselves in future prejudicial activities. The Argument was based on the
foundation that the petitioners had not preferred any bail application, and, if that be so, the question of their coming out on bail cannot survive. To
appreciate this contention, it will be better to notice the manner in which subjective satisfaction has been arrived at by the Detaining Authority,
while considering the question of compelling necessity.-
There is possibility of his being released on bail and that on being so released there is imminent possibility that he will indulge in activities prejudicial
to the maintenance of public peace and Law and Order.
It was specifically pointed out by Mr.A.K.S.Thahir, that, earlier to these few lines, the detaining aurhotiry has stated, that it was felt by the
Superintendent of Police that these detenus may prefer applications for bail under Sec. 20(8) of the TADA Act. That, to our minds, cannot have
any bearing. If satisfaction to be arrived at by the Detaining Authority, the possible preferring of bail applications, apparently had been brought to
his notice by the Superintendent of Police, all that would be required on the part of the Detaining Authority would to consider if there was
possibility'', of the detenue/detenus getting himself/themselves, released on bail by preferring bail applications in future and whether, in the event of
such release, he/they would engage himself/themselves in activities prejudicial to the maintenance of public peace and law and order. On this
aspect, certain decided cases have been placed for our scrutiny.
In Rivadeneyta Ricardo Agustin v. Government of Delhi (1994 S.C.C. (Crl.) 3S4), while scrutinising the order of detention, which had been
passed therein on August 18, 1992. in respect of a crime which stood committed on April 4, 1992 under Sec. 135 of the Customs Act, Supreme
Court chose to list further details before making certain observations, which we will refer to in due course. On May 13, 1992 the concerned
Magistrate took cognizance of an offence punishable under Sec. 135 of the Customs Act. Actual hearing of the case commenced on July 3, 1992
and charges were framed on August 11, 1992. It is at that stage, order of detention was made on August 18, 1992. Bail petition preferred by the
detenu therein, was dismissed finally on 9.6.1992. Thereafter, he did not make any bail application.'' No bail application was pending on
18.8.1992. There was no other circumstance indicating that the detenu therein would be released from custody. Under such circumstances,
Supreme Court stated, that in the grounds, they had scrutinised, there was mention of the possibility of the detenu''s release in case he moves a bail
application. It neither stated that such release was likely or that it was imminent. Therefore, it opined that the statements in the grounds fell short of
the requirement enunciated by that Court in earlier cases. In the present set of Habeas Corpus Petitions the extract, we have made from the
relevant paragraph in the grounds, clearly show that there was not only the possibility of the detenus being released on bail but also the imminent
possibility of those detenus indulging in future prejudicial activities, in the event of being released. That the detenus may prefer bail applications was
also within the awareness of the Detaining Authority. The circumstances under which the Supreme Court had made those observations are evident
from the judgment itself. The Supreme Court has, in effect, affirmed its earlier view, but while applying the same to the set of facts placed before it
in the latter case, held, that the detenu therein was entitled to the benefit of release.
In Noor Salman Makani Vs. Union of India and others, , Supreme Court stated as hereunder:
The next submission is regarding non application of mind by the Detaining Authority with regard to the circumstance that the detenu was in jail and
a mere bald statement that the possibility that the detenu was likely to be released on bail cannot be ruled out is not enough and it only shows that
there was no proper application of mind. In this context, the Learned Counsel relied on the judgment of this Court in Binod Singh Vs. District
Magistrate, Dhanbad, Bihar and Others, . We see no force in this submission. We do not think mat anything more could have been said by the
Detaining Authority in this context. As a matter of fact the apprehension of the Detaining Authority came to be true as the detenu was released on
bail no doubt, subject to certain conditions on 25.9.92. Therefore there are no merits in this appeal.
On the basis of the observations of the Supreme Court, in this case, we have to necessarily hold that there has been sufficient application of mind
on the part of the Detaining Authority on the aspect of compelling necessity, while choosing to clamp these preventive orders. We are unable to
accede to this contention.
The next submission was that there was no material available before the Detaining Authority for arriving at this subjective satisfaction that there
was imminent possibility of the detenus getting themselves released on bail in a case registered under the TADA Act. Reference was made to the
judgment of this Court in Jayalakshmi and Ors. v. State of Tamil Nadu (1992 (3) Crimes 975), wherein observations have been made that the
detenus, therein, who were charged under various Sections of the TADA Act had not filed bail ap-plications and, therefore, the imminent
possibility of their coming out on bail stood ruled out and the impugned orders therein were vitiated on the ground of non-application of mind. The
earlier ground and this ground practically overlap and hence a repetitive discussion will be unnecessary. In view of the observations of the Supreme
Court in Noor Salman Makani''s case (A.I.R. 1944 S.C. 575), Which attract the instant facts, we are of the opinion that this judgment of another
Division Bench of this Court will not come to the rescue of the petitioners herein.
The next submission was that the detenus had requested, through their representations, several documents, inclusive of confessions and
retractions, surrender petitions, remand orders etc., which are not supplied and no reasons were also given for such non-supply, when the
representations were rejected. Time and again, Supreme Court has observed, that each and every document, on a requisition by the detenus,
irrespective of those documents having been relied upon, or otherwise need not have to be supplied to the detenus, unless the Court is satisfied that
due to such non-supply, prejudice had occasioned. In some of the cases, Supreme Court has further observed that the detenus have no right to
compel supply of documents, which have been mentioned only in passing and which really did not form the backbone of subjective satisfaction
arrived at by the Detaining Authority. It will be the duty of the Court to consider the nature of documents requested, the impact that it had in the
process of subjective satisfaction, and the need for supply of those documents to the detenus, to make an effective and purposeful representation.
These aspects will have to be weighed, on the basis of complaints about non- supply, before conclusions could be arrived at, either way. There is
no dispute in these cases, that the documents requested were not documents relied up on by the Detaining Authority. If documents requested are
not relied upon documents, then the onus will shift for the detenus to show that they have been prejudiced by such non-supply. Except making a
general statement, that the detenus should be deemed to have been prejudiced, no specific arguments were advanced to indicate, that the detenus
have either been prejudiced or there is likelihood of prejudice having resulted to these detenus. The retractions of confessions were before the
Designated Court. We have different dates furnished by the learned Additional Public Prosecutor and Mr.Thahir, as to the date of which, the
retractions were made. According to the learned Additional Public Prosecutor, retraction letter is dated 15.3.1995, long after the Advisory Board
had met on 2.3.1995. Detention orders were passed on 30.1.1995 and at that point of time there was no scope for placing of this retraction,
before the Detaining Authority. However, Mr.Thahir would submit, on the basis of a document produced before us, that even on 21.12.1995
detenus had retracted their confession statements. It was also submitted, on the basis of that document produced before us, that the investigating
agency had also been informed, by forwarding of a copy to them, of this retraction, on the same day. We find from the document, that a copy was
not forwarded through Court. It was fairly admitted by the junior counsel that he had made an endorsement ''forward copies to J.S."" and it was not
based on any court orders and it was presumed by him, that the jail authorities should have forwarded the same to the Detaining Authority or the
investigating agency, as the case may be. There is no proof that any such document was received, on such forwarding, by the Detaining Authority.
To reiterate, confessions of these detenus were not relied upon by the Detaining Authority. If the confessions had been relied on, retractions will
become very relevant. Such not being the case, we are unable to find any merit in this submission, that non-furnishing of confessions and
retractions, not only in the ground crime, but also in the adverse cases, would suffice to hold in favour of the detenus. As far as the adverse cases
are concerned, while considering the aspect of prejudice, on the ground of non-supply of surrender petition, remand report, grant or refusal of bail
etc., we have to state definitely, that in all the adverse cases, the first information reports, and virtually every piece of paper that had accompanied
the final reports, have been supplied to the detenus. It is not known as to how non-supply of a surrender petition or order in adverse cases, which
have been asked for, could have resulted in prejudice to the detenus.
Mr. Thahir, Learned Counsel appearing on behalf of the petitioners, submitted that irrespective of prejudice, documents requested may have to
be supplied and to substantiate this proposition, he relied on the judgment of the Supreme Court in Mrs. Tsering Dolkar Vs. Administrator, Union
Territory of Delhi and Others, . In that case Supreme Court made the following observations:
In the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a
failure to comply with those requirements, it becomes difficult to sustain the order.
Those observations will have to be understood in the context under which they were made. It was the contention of the detenu therein, that he
could understand only Ladakhi language, but he could hardly write, read or converse in that language. His wife, who had petitioned on his behalf,
was apparently conversant with both Tibetan and English languages. Copies were furnished to him in English or Tibetan language, while he knew
only Ladakhi. Mere oral explanations, of the content of the documents, were held to be not sufficient, while on such conspectus of facts Supreme
Court stated, that there could be no two opinions, that the requirement of law within the provisions of Art. 22(5) of the Constitution was that the
detenu had to be informed about the grounds of detention is a language which he understands. The fact that the detenu''s wife knew the ""language
in which the grounds were framed did not satisfy the legal requirement. As a matter of fact, the law laid down by the Supreme Court, subsequently,
in a catena of decisions, a few of which we will refer to, would indicate that the concept of prejudice has a place in a preventive law.
In Kamarunnissa and Others Vs. Union of India and another, , Supreme Court stated as hereunder:-
It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must further be shown that the
non-supply has impaired the detenu''s right to make an effective and purposeful representation. Demand of any or every document, however
irrelevant it may be for the concerned detenus, merely on the ground that there is a reference thereto in the grounds of detention cannot vitiate an
otherwise legal detention order. No hard and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the
failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insignificant it may
be. In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it
had resulted in the impairment of his right nor could counsel for the petitioners point out any such prejudice.
In Abdul Sathar Ibrahim Manik Vs. Union of India and others, , Supreme Court stated as hereunder:
It will, therefore, be seen that failure to supply each and every document merely referred to and not relied upon will not amount to infringement of
the rights guaranteed under Article 22(5) of the Constitution. We may, of course, add that whether the document is casually or passingly referred
to or whether it has also formed the material for arriving at the subjective satisfaction, depends upon the facts and grounds in each case. In the
instant case we are satisfied that these two documents were not placed before the Detaining Authority nor they were referred to or relied upon.
These observations follow quotations, of the observations made by the Supreme Court in Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral and
Anr, . which read as hereunder:-
It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement
of Article 22(5), fatal to the orders of detention. It is only failure to furnish copies of such documents as were relied upon by the Detaining
Authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by
Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of
narration of facts and which are not relied upon by the Detaining Authority in making the order of detention.
In Abdul Sattar Abdul Kadar Shaikh Vs. Union of India (UOI) and Others, , it was observed by the Supreme Court, that no authority had
been placed before them, which went to the extent of holding that a mere non- supply of any document, whatever its nature may be, to the detenu,
perse, amounted to the denial of an opportunity under Article 22(5).
In Veeramani v. State of Tamil Nadu (1994 (1) Crimes 617), while considering the need for supply of documents in respect of adverse cases,
Supreme Court observed as follows:-
The earlier incidents were only referred to for showing that the detenu has been indulging habitually in committing offences and to that extent all the
F.I.Rs. have been referred to and the copies of the same have been supplied to the detenu and the copies of statement u/s 161 and the connected
materials which were simply placed before the Detaining Authority and which were looked into to verify whether the contents of the F.I.R. were
substantial, cannot be held to be the real material forming the basis of the grounds as mentioned above. Under the Act, the authority must be
satisfied that the detenu comes within the meaning of ""goondas"". No doubt, even as against that, the detenu has to make his representation stating
how he does no come within the meaning of ""goondas"". To that extent he has been put on sufficient notice by referring to the F.I.Rs. in six
consecutive cases which could show that he has been habitually indulging in offences and which by themselves form sufficient material to show that
he comes within the meaning of ""goondas"". Even otherwise, the non-supply of the statement u/s 161 etc. which are only in support of the contents
of F.I.Rs. did not cause any prejudice to the detenu and as, a matter of fact while making the representation the detenu did not ask for any such
document.
Merely because the detenus in this case have asked for certain documents, it does not mean that they are entitled to be supplied with each and
every document requested. For this proposition, we have already referred to a catena of decisions rendered by the Supreme Court. Relevancy of
each document as well as the possible prejudice that could been caused to the detenus due to non-supply must be within the awareness of the
Detaining Authority. We have already stated that all that had been asked for in the adverse cases was surrender petitions and order therein,-
remand reports etc., in an attempt to a fish out i.e. the detenus'' had made any complaints in those cases, without any material, the detenue in those
cases having made any complaint to the Magistrate regarding ill-treatment. Those documents are not relied upon material and the detenus cannot
merely put in a requisition for irrelevant documents and then plead for vicing of the orders. Certainly Article 22(5) of the Constitution, does take in,
attempts of this nature to invalidate otherwise valid, preventive orders.
The next submission was that in paragraph 7 of the grounds of detention, mention has been made about interrogation of these petitioners and
the nature of interrogation must have been placed before the Detaining Authority, to arrive at his subjective satisfaction for, otherwise, it will
amount to suppression of relevant material. It was pointed out by the learned Additional Public Prosecutor, that the ground crime had occurred on
29.11.1994 and the impugned orders of detention were passed on 30.1.1995. The fact of interrogation and recovery of certain incriminating
material at the instance of the petitioners, were made know to them, by documents supplied in the paper book. That was relied upon material,
which was promptly made available to the detenus. A a matter of fact, it was commented, that the detenus cannot ask for the moon. In other
words, those acts, which could not be performed cannot merely be asked for and non-performance, commented upon. All said and done, the
nature of documents to which the detenus would be entitled to, have been subject matter of various judgments and we have already noticed them,
which indicate that this ground of challenge will not help these petitioners. We are unable to find any material suppressed, which could have
affected arrival of subjective satisfaction, either way. As a matter of fact, these contentions were urged, without specific material being brought to
our notice and no attempt was made to substantiate the validity of these contentions,
The next submission was that the detenus had asked through their letter dated 28.12.1994, addressed to the Advisory Board, that they may be
permitted to appear before the Board, on another day, since they needed time for preparation. That letter, apparently, was handed over in person
before the Advisory Board. The report of the Advisory Board shows that the written representation of the detenus, as well the telegram forwarded
by their Advocate, was taken note of, when the oral representations were heard. The detenus had participated in the proceedings before the
Advisory Board and it will be too late for them to complain that they did not have any reasonable opportunity before the Advisory Board. To
reiterate, the reports of the Advisory Board make it clear that the representations of the detenus were heard by them. That would put an end to this
ground. No other ground was urged.
These habeas corpus petitions, which have no merit, shall stand dismissed.