Suman Thalwar vs The State of Tamil Nadu

One Thiru Suman Thalwar, a detenu under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Goondas,

Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982), had filed W.P. No. 6445 of 1985, praying for the issue

of a writ of Habeas Corpus declaring that the detention order made in Memo No. 67/BDGIS/85, dated 21.5.1985, is void and for other

consequential reliefs. The said Writ petition vas heard by the Division Bench consisting M.A. Sathar Sayeed, J., and Shanmukham, J., in extenso

on the several points raised in the writ petition and the learned Judges referred two questions of law for an authoritative pronoucement to a Full

Bench of this Court and decided the rest of the points by means of a considered judgment, dated 25th September, 1985.

The Full Bench of this Court consisting of Honourable Mr. M.N. Chandurkar, Chief Justice, S.A. Kader, J., and Venkataswami, J., answered

the two points referred to by the Division Bench by means of its judgment Reported in 1986 L.W. (Crl.) 221, dated 7.4.1986. After answering the

questions referred to, the Full Bench had directed the Writ Petition No. 6445 of 1985 to be taken up by the earlier Division Bench for disposal. In

the meanwhile the petitioner filed Crl.W.P. No. 329 of 1986 before the Supreme Court raising identical grounds which were raised in W.P. No.

6445 of 1985 and also some other grounds in addition. The Supreme Court by means of its order, dated 5th September, 1986 transmitted the

Crl.W.P. No. 329 of 1986 to this Court with a direction to treat the same as a writ petition under Art. 226 of the Constitution. Accordingly,

Crl.W.P. No. 329 of 1986 is taken on file as W.P. No. 10076 of 1986 and posted along with W.P. No. 6445 of 1985. Both the abovesaid writ

petitions are posted before this Bench by orders of the Chief Justice for final disposal.

Most of the contentions raised on behalf of the petitioner challenging the legality of his detention, barring the two points referred to the Full

Bench, were decided by the earlier Division Bench. The two points referred to the Full Bench were also subsequently decided by the Full Bench.

The Supreme Court on a consideration of the facts of the case seems to have felt that there are additional questions to be decided in Crl. W.P.

No. 329 of 1986 and directed this Court to dispose of the said additional question. The scope of further enquiry is circumscribed by the direction

of the Supreme Court in its order dated 5th September, 1986 in Crl. W.P. No. 329 of 1986 which reads as follows:

We understand that Writ Petition No. 6445 of 1985 has been filed by the Petitioner in the High Court of Madras and is presently pending there.

We are told that the Writ Petition is coming up for hearing and is expected to be disposed of within one month from today. According to Learned

Counsel for the petitioner, this Criminal Writ petition before us raises a question which has not been raised in the aforesaid Writ Petition. This

additional question may also be considered by the High Court, and for that purpose we direct the transfer of the records of this Criminal Writ

Petition to the High Court of Madras for disposal on the basis that it is a Writ Petition under Art.229 of the Constitution.

On behalf of the petitioner it is contended that the order of the earlier Division Bench is only an interim order and this Bench can come to a final

conclusion regarding the same. On a perusal of the earlier judgment of the Division Bench it is seen that a considered final pronouncement had

been made in respect of the matters in issue and what was passed is a final order and not an interim order. The Supreme Court in the case

reported in Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, , has held that the principles of res judicata are equally applicable

in such cases. The observation of the Supreme Court can usefully be extracted hereunder:

The principle of res judicate applied also as between two stages in the same litigation to this extent that a court, whether the trial Court or a higher

Court having at an earlier stage decided a matter in one day will not allow the parties to re-agitate the matter again at a subsequent stage of the

same proceedings.

When a Court decides a matter it is certainly final as regards that Court unless it is an interlocutory order. Such a decision cannot be reagitated in a

subsequent stage of the proceedings before the same Court. The Supreme Court in the case reported in Arjun Singh v. Mohindra Kumar and

others AIR 1974 S.C. 993 : 1974 (5) S.C.R. 946, to as held that the scope of the principle of res judicata is not confined to what is contained in

S. 11, C.P.C, but is of more general application. Res judicata could be as much applicable to different stages of the same suit as to findings on

issues in different suits. In view of the above principles expressed in the above decisions this Bench cannot go into the questions decided by the

earlier Division Bench as the principle of res judicata is applicable to the said findings. When the Full Bench took up the matter a request was made

by the petitioner to reconsider the conclusion arrived at by the earlier Division Bench and the same was rejected by the Full Bench. While rejecting

the request the Full Bench observed as follows:--

Now, undoubtedly, in view of the provisions of R.7 of O.1 of the Appellate Side Rules, it would be permissible for the Pull Bench to decide the

matter in which the question of law has been referred to the Full Bench on merits. We must point out, however, that in the present case, the

Division Bench has considered on merits the several contentious raised on behalf of the petitioner and has also recorded findings thereon. If we

were to rehear the matter that would mean that in a sense we will be sitting in judgment over the findings recorded by the Division Bench because it

is obvious that the Learned Counsel would like to argue all the contentions which were raised before the Division Bench. Apart from this, when a

Division Bench has already applied its mind to the contentions raised on behalf of the detenu, it would not be proper for the Full Bench to go into

the self same contentions once again. This would clearly be waste of time. We have therefore declined to hear the matter finally and the arguments

before us will therefore be restricted to only the two questions which have been referred to the Full Bench.

A perusal of the judgment of the Division Bench will indicate that the findings on the questions were rendered after a consideration of the entire

matter. Hence in view of the principles laid down in the cases referred to supra, we have no hesitation in negativing the contention that the order of

the earlier Division Bench is an interim order and the several questions considered by the earlier Division Bench can be gone into afresh by this

Bench. We are bound by the decision rendered by the earlier Division Bench on the several questions raised in the writ petition.

The first additional contention that was raised in Orl.W.P. No. 329 of 1986 is that the detention order worked itself out on 20.6.1936, on the

expiry of one year from the date of the original detention order, viz., 21.5.1935, and hence the petitioner can no longer be detained as per the

impugned order. This contention will have to be examined (sic) in the, (?) S.13 lays down the maximum period of detention and the same is as

follows:--

Maximum period of detention:-The maximum period for which any person may be detained, to pursuance of any detention order made under

this Act which has been confirmed under S.12, shall be twelve months from the date of detention.

The detention order in this case commenced on 21.5.1385. Under the normal circumstance the detention order will have to come to an end on

20.5.1986. Bat in this case the petitioner was released OB bail on 1.10.1985 by the earlier Division Bench, The order of the earlier Division

Bench, dated 1.10.1985, reads as follows:--

that pending the said W.P. 6445/85 on the file of the High Court, or until further orders or Court, the petitioner herein, viz.. Suman-the detenu,

who is detained in Central Prison, Madras, pursuant to the order in Memo No. 67/BDGS/85, dated 2.1.5.1985 issued by the second respondent,

be released on bail on his furnishing security in his own for the sum of Rs. 50,000 with two sureties each for Rs. 50,000 to the satisfaction of the

Chief Metropolitan Magistrate, Egmore, Madras;

that the petitioner, viz., Suman should reside at Madurai Town and shall not leave Madurai Town limits;

that the petitioner should inform the Madurai Town Police Station, the address where he is residing; and

that the petitioner should report to the Madurai Town Police Station daily at 10 A.M. until further orders of this Court.

The said order was subsequently modified by the earlier Division Bench by means of an order passed on 10.12.1985 which reads as follows:

We are of the view that the condition imposed on the petitioner by this Court on 1.10.1985 has to be modified. Accordingly, the petitioner shall

(sic) in Chingleput Town and shall inform the Inspector of Police, Chingleput Town Police station of his address of stay.

(a) The petitioner shall not leave Chingleput Town without Informing the Inspector of (sic) Chingleput Town Police Station before-hand.

(b) The petitioners shall not enter into the City limits of Madras.

(c) The petitioner can attend only the A.V.M. Studios which is said to be situate outside the City limits after informing the Inspector of Police,

Chingleput Town Police Station, only for the purpose of indoor shooting by submitting his call-sheets from the Studios to the Inspector of Police.

(d) The petitioner shall also intimate (sic) (?) to keep the petitioner away from doing any mischief for a period of one year, has been achieved.

Hence further detention is illegal.

The detention order came into effect on 21.5.1985 when it was served on the petitioner. Afterwards it never stopped to run and the same is never

stayed or suspended or quashed in spite of the bail granted to the petitioner. In this connection it is also pointed out that the provisions contained in

section 15 of Act 14 of 1982 gives power to the State Government to temporarily release the persons detained for a particular period and on the

expiry of such period if he fails to surrender he can only be prosecuted and he cannot be re-arrested as provided for in the Criminal Procedure

Code in case of persons released on bail. It is further submitted that under the Scheme of the Act 14 of 1982 there is no concept of bail. The

detention order continues to operate against the detenu in spite of being released on bail. The source of power from which the bail is granted is the

continued existence and operation of the detention order. The release on bail on condition itself is a restraint on the liberty of the detenu and

therefore in eye of law the detenue continues to be in detention. The detention does not always mean detention within four walls. The detenu is

liable to be detained in such a place and under such circumstances as the State Government may specify. In any event the deprivation of liberty

amounts to detention. In this connection it is also pointed out that imprisonment it different from detention. Imprisonment is putting one into prison

but the detention is confining a person or restraining a person from doing certain things. The contention is that though the 12 months detention

contemplated under Act 14 of 1982 is broken by the order of the Court it will still continue to be a detention. According to S. 13 of Act 14 of

1982 the detention shall be for a period of 12 months and there is no provision for a broken period. Under S. 13, Advisory Board''s opinion

contemplated a continued detention and if the chance of continuity is broken or even if the period is broken the detention period gets expired and

he cannot be re-arrested after the period of 12 months from the date of detention. According to the Scheme of the Act a detenu cannot be initially

detained beyond three months from the date of detention and the detention can be continued only under the confirmation order by the Advisory

Board under S.12 and while confirming such a detention the Advisory Board should specifically state that the detenu shall be kept continuously for

a period of 12 months from the date of detention. The phrase ""from the date of detention"" is statutory mandate from which there cannot be any

exception. Accepting the contention of the Detaining Authority will amount the deletion of the words ""from the date of detention"" in S.13. The

measure is only preventive based on the period and if the period ends, unless the Detaining Authority is satisfied, fresh detention cannot be

extended. In so far as this case is concerned the object of preventing the detenu as being the Goonda has been achieved by putting the detenu in

jail for some time and partly by detaining him at Madurai and Chingleput. The further contention is that whenever there is deprivation of liberty it

amounts to detention. In this case though the petitioner was released on bail still his liberty was curtailed and hence the detention order is deemed

to be in force in spite of the release by the Division Bench. The decision reported in A.K. Gopalan Vs. The State of Madras, , is relied upon for

the proposition that the detention is the deprivation of liberty of movement. The contention is that if there is a curtailment of liberty of movement it

will amount to preventive detention and it is not necessary to lockup a person. Substantial reduction in liberty of movement will amount to

detention. In the case reported in Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Others, , it has been held that the

restriction imposed on a person preventively detained mast, consistently with effectiveness of detention, be minimal. It is open to the authorities to

determine the manner of detention. Mr. G. Ramaswami, Learned Counsel for the petitioner, summed up his contentions as follows:--

In law by a proper interpretation of the orders the detenu had served the whole period;

Under S.13 there can be an order of detention only upto 12 months from the date of detention. Whatever happens in the middle would not

extend the date of expiry of detention and if the period expires the detention order conies to an end;

In any event if there is a doubt it has to be interpreted in advancement of the liberty of the citizen more especially in preventive detention cases.

In this connection it is also pointed out that even in cases where the High Court had released the detenu the Supreme Court on expiry of the period

of detention had dismissed the SLP as infructuous.

On the contrary learned Advocate General on behalf of the detaining authority contended that the period during which the petitioner was on bail

will not count for the period of detention as the petioner was not actually detained during the said period. In this connection it is pointed out that the

period during which a convict is released on parole is not counted while computing the term of imprisonment. Learned Advocate General also

relied on the case reported in State of Gujarat Vs. Adam Kasam Bhaya, . In that case the detention order was passed on 7.5.1979. The Division

Bench of the Gujarat High Court quashed the order of do tention on the ground that the materials on record are not sufficient for reaching a

genuine satisfaction that the petitioner was engaged in smuggling activity and it was necessary to detain him with a view to prevent him from

indulging in such activity. The State of Gujarat appealed to the Supreme Court and in the course of the appeal a contention was raised oh behalf of

the detenu that in view of the fact that maximum period of detention mentioned in S.10 of Conservation of Forein Exchange and Prevention of

Smuggling Activities Act 52 of 1974 has expired the appeal has become infructuous. But the Supreme Court negatived such a contention sand held

that if the detenu had served a part of period of detention he will have to serve the balance. In the course of the judgment the Supreme Court

observed that if the argument of the detenu is accepted then the person against whom an order of detention is made can successfully abscond till

the expiry of the period and altogether avoid detention. In the case reported in State of Gujarat v. Ismail Junta AIR 1982 S.C. 683; it hat been

further held that if the order of the High Court quashing the detention of the detenue is set aside by the Supreme Court, the order of the High Court

rendering the order of detention non eat itself becomes non est and the order of detention gets life and therefore it cannot be said that once the

maximum period prescribed by law was over, the order of detention was non est and there was no order by which the detenu could be put under

fresh detention. In the course of the order in Crl.W.P. No. 620 of 1984 in W.P. (Crl.) No. 301 of 1943 the Supreme Court held that the detenu

will have to serve the balance of the period of detention. In all the above cases the Supreme Court has taken the view that the period during which

the detention order is suspended cannot be considered to be one of detention and the detenu will have to undergo the detention for the balance of

the period. If the detention is in any way interruputed by an order of the Court the same cannot be taken into account for computing the period of

detention. The period for which the detenu is out with or without restraint will not count for computing the period of detention.

In any event the consequences flowing from the detention order passed by the detaining authority cannot be altered by any interim order passed

by the Division Bench of this Court in view of the maxim that an act of the Court shall prejudice no man Actus curie Nemanem Gravabit. This

doctrine is set out in page 73 of the book. A Selection of Legal Maxims by Herbert Broom (10th edition). In view of this doctrine an interim order

passed by the earlier Division Bench will have no effect on the order of detention passed by the detaining authority. In view of the above decisions

of the Supreme Court on the above question and the legal maxim, that an act of the Court shall prejudge no man, we have no hesitation in

negativing the contention of the Learned Counsel for the petitioner that the period of detention in this case had come to an end.

The next contention raised on behalf of the petitioner relates to the request made by the petitioner in his letter of representation, dated 7.6.1985

sent to the Government for supply of material documents which related to the basic facts. According to him the said documents were not furnished

to him in Hindi and therefore he was denied reasonable opportunity of making an effective representation before the Advisory Board. The Learned

Counsel submits that the earlier Division Bench had not given a finding on this question and hence all the circumstances will have to be considered

and a finding will have to be rendered by this Bench. The detenu had stated that he knew only Hindi. In his representation to the Government the

detenu stated as follows:-

I am a Mangalorian born in Madras. I have no proper education and I am not well-versed in English. My mother tongue is Thulu and I know to

read and write Hindi. In do not know to read and write Tamil. I request that the materials or grounds of detention may be supplied to me in Hindi

in which language alone I can understand it well.

In the affidavit filed in support of W.P. No. 6445 of 1985, the detenu averred as follows:

I am advised to state that there had been no proper communication of the Grounds of detention as required under Art. 22(5,) of the Constitution. I

am a Mangalorian by birth. My mother tongue is Telugu. I studied in Church Park Convent, medium of instruction being English. My second

language in the School is Hindi. I have never studied Tamil. I do not know to read and write Tamil. I am proficient in my mother tongue Thulu only,

I also know to read and write Hindi. The alleged statement of witnesses have all been given in Tamil which language I do not understand. All the

statements are in Tamil and only documents that are in English, Tamil translations have been given. I state that I am very much handicapped as the

Grounds of detention have not been given to me in a language which I understand.

In the counter affidavit filed by the detaining authority the following averment is made:--

Regarding the contentions in paragraph 13 of the affidavit, it is not correct to say that there was no proper communication of the grounds of

detention. The contentions that the petitioner, is a Mangalorian by birth, that his mother-tongue is ''Thulu'', that be studied in English Medium, that

his second language is Hindi, are not relevant in this detention. It is not correct to say that the petitioner does not know to read and write Tamil. He

knows English and Tamil languages. It is not correct to say that the petitioner does not know Tamil. It is not correct to say that the petitioner is

handicapped because he does not know Tamil. It is not correct to say that the constitutional guarantees as enshriend in Art. 22(5) of the

Constitution are violated.

The contention on behalf of the petitioner is that he knew only Hindi, that the materials on which the grounds of detention were based were not

given in Hindi and hence he was not in a position to make an effective representation had not been considered by the earlier Division Bench and

hence the same will have to be considered by this Bench. In support of this contention the following cases were also cited. In the case reported in

Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam Vs. State of Gujarat and Others, the

Supreme Court observed as follows:

All documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining

authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than five

days ordinarily and in the exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention

and secondly all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would

amount to a breach of the two duties cast on the detaining authority under Art. 22(5) of the Constitution.

In the case reported in Smt. Raziya Umar Bakshi Vs. Union of India and Others, , the Supreme Court held that where the detaining authority is

satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu,

a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the

language, which he understands. In this case from the records we find that the grounds of detention were served on the detenu both in English and

in Tamil and all the copies of statement on which subjective satisfaction was arrived at were given to the detenu in Tamil language.

On behalf of the detaining authority, learned Advocate General contended that the denial on part of the detenu that he did not know Tamil is

wanton and cited the following circumstances to show that the detenu knew the Tamil language:

The petitioner was born in Tamil Nadu;

He was educated in Madras and studied in Church Park Convent, Adyar Besant Theosophical High School, Mambalam Ramakrishna High

School and PUC in Pachayappa''s College;

He has acted as a Hero in number of Tamil Talkie films;

His written representation is in English and signed by the petitioner in English;

Search list is signed by him in English and during the search he did not say that he did not know Tamil; and

His confession statement is reduced in Tamil and made to the Police authorities.

It is also contended that there is no likelihood of the confessional statement being recorded in any other language except the one under which it

was made. In an unreported case (1980 unreported judgments, page 682, para 21) it has been held that unless a conclusion is reached that the

detenu had a working knowledge of the language in which the materials supporting the detention were supplied the constitutional provision was

violated.

At first we will have to decide whether the earlier Division Bench had gone into the question and given a finding and if not, we will have to

examine the question whether there is a possibility for the detenu having a working knowledge of Tamil in which the materials were supplied. In

com ins to a conclusion on the materials on record we will have to be bear in mind the dictum of the Supreme Court laid down in the case reported

in Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala and Others, , that common sense should not be put in cold

storage. The earlier Division Bench in para 25 of its order had considered the contentions of both sides and deferred the finding since the

confession statement supplied in Tamil is one of the documents on which the subjective satisfaction was arrived at, and the question whether the

detaining authority can take the confession statement into consideration in arriving at the subjective satisfaction is referred to a Full Bench. In that

the Division Bench observed as follows:--

As the detenu''s confessional statement is one among the circumstances relied on by the Advocate General in bringing this case within the exception

envisaged in P.C. Mehta v. Commissioner and Secretary, Government of Kerala 1985 S.C.C. Cri. 332, the consideration of this question has to

be deferred till an authoritative pronouncement is made by the Full Bench, Indeed even the examination of the petitioner''s contention that the

detaining authority had before it an inadmissible piece of evidence and that it was consequently influenced by extraneous matter depends upon the

inadmissibility of dismissal of this confessional statement.

Now, we will have to consider the contentions made by the petitioner in the proper perspective and come to a conclusion whether the

Constitutional provision had been complied with. The allegation that the petitioner had acted in a number of Tamil Talkie films as a Hero is not

disputed. Acting as a Hero in a number of Tamil Talkie films will give rise to a presumption that he knows Tamil Language unless the contrary is

shown. Further he has signed in English in the search list made in Tamil. His confessional statement which the Full Bench had held can be taken into

consideration in arriving at the subjective satisfaction is recorded in Tamil and there is no likelihood of the confessional statement being recorded in

any other language except the one under which it was made. In the confessional statement the detenu stated as follows:

This confessional statement can be taken into consideration in arriving at the subjective satisfaction by the detaining authority. The circumstances

that the petitioner had acted at least in the Tamil films as a Hero along with the confessional statement that he knew Tamil, Telugu, Hindi and

English, in the absence of any other circumstance, clearly establish that the detenu is conversant with Tamil language and we have no hesitation in

rejecting the contention that the detenu was not conversant with Tamil. Under the circumstances we hold that there is no violation of the

Constitutional provision contained in Art.22(5) of the Constitution in furnishing the materials to support the detention order to the detenu in Tamil.

The third contention put forward on behalf of the petitioner is that the Government had not considered the representation of the detenu

independently uninfluenced by the opinion given by the Advisory Board and as such the detention is illegal. In order to understand this contention

certain dates are relevant. The representation of the detenu was received by the Jail authority on 10.6.1985 and the same was forwarded to the

Commissioner of Police on 11.6.1985. The said representation was sent by the Commissioner of Police with remarks to the Government on

13.6.1985. It was received by the Government on 14.6.1985 and put up by the Deputy Secretary on 18.6.1985 and signed by the Secretary and

sent to the Minister for law on 19.6.1985 and then it was signed by the Chief Minister on 25.6.1985. The views of the Advisory Board reached

the Government on 17.8.1985. The contention is that the decision of the Chief Minister was not taken uninfluenced by the report of the Advisory

Board which the detenu is entitled to under law. In other words the detenu has got a right to have his representation examined and an independent

conclusion arrived at by the Chief Minister representing the Government and he is also entitled to a second opportunity of the Government coming

to the conclusion on the representation with reference to the report of the Advisory Board. On a perusal of the concerned file it is seen that the

views of the Advisory Board had been received by the Government even before the representation was rejected by the Government on 25.6.1985

and care was taken to see that the views of the Advisory Board were not placed before the Chief Minister, before the final order was passed on

the representation on 25.6.1985. Only after the Chief Minister had signed the final orders on 25.6.1985 the views of the Advisory Board were

circulated and the decision accepting the views of the Advisory Board was taken on 27th June, 1985. It is also seen that both the decisions were

taken on 25th June, 1985 and 27th June, 1985 and the same were communicated to the detenu. From the above facts it is seen that there has been

an independent consideration at the two different stages and the petitioner is not in any way prejudiced. In the case reported in Dr. Rahamatullah

Vs. State of Bihar and Another, the Supreme Court has held as follows:

In case of preventive detention of a citizen, the obligation of the appropriate Government is twofold:

(i) To afford the detenu the opportunity to make a representation and to consider the representation which may result in the release of the detenu,

and (ii) To constitute a Board and communicate the representation of the detenu along with other materials to the Board to enable it to form its

opinion and to obtain such opinion. The former is distinct from the latter. Corresponding to this obligation there is a two-fold right in favour of the

detenu to have his representation considered by the appropriate Government and to have the representation once again consideration by the

Government in the light of the circumstances of the case concerend by the Board for the purpose of giving its opinion.

But in this case the two fold right of the detenu had not been infringed in any manner and we are of the opinion that the contention of the petitioner

that the Government had act considered his representation independently uninfluenced by the views of the Advisory Board is devoid of merit and

the same will have to be rejected.

In view of the conclusion arrived at, the aforesaid three additional contentions made by the petitioner are answered in the negative. All the

other points raised on behalf of the petitioner had already been considered by the earlier Division Bench and findings had been arrived at on merits

and the said findings are binding on us. In the result there are no merits in both the writ petitions and they are dismissed. However, there will be no

order as to costs.

In view of the fact that substantial questions of law of importance arise as detailed in the Order, it is a fit case where leave to appeal to

Supreme Court as prayed for by the petitioner''s advocate will have to be granted and is granted.

(This order was made by David Annoussamy, J.):--

I am likewise of the opinion that the petitions of the detenu should be dismissed. But, regarding the point raised by the petitioner that the order of

detention has worked itself out, in respect of which elaborate arguments were advanced by the Learned Counsel for the petitioner, I would like to

add my own reasons.

The contention of the petitioner is that he was to be detained for one year from the date of detention, that the period of one year is over and that

he can be no longer kept in detention even if he was not actually in detention throughout the whole period. He would further contend that he was

effectively in detention even after the order of the Court dated 1st October, 1985, since even under that order purporting to release him on bail, his

liberty was considerably curtailed. He would, therefore, contend that he is being kept in detention, even though the period of one year had expired

much earlier.

The stand taken by the Advocate General appearing for the detaining authority is that the petitioner was actually in detention only from 21st

May, 1985 till 1st October, 1985 and that he has to serve the remaining period.

Learned Counsel for the petitioner invited us first to consider the aim and the characteristics of the preventive detention in contrast with punitive

detention, usually called imprisonment, in support of his contention that the order of detention has worked itself out. Punitive detention aims to

chastise the person concerned for the mischief he has done. On the contrary, preventive detention aims to prevent the person concerned from

indulging in the mischief he is likely to do. What he has done in the past is relevant in the case of preventive detention only for the purpose of

determining what the person concerned would be able to do in future if he is allowed to be free and of fixing the form, the duration and the place of

detention. The punishment for the mischief done will be meted out in a separate and regular criminal proceeding and the preventive detention is not

on any manner meant to inflict a punishment therefor.

Punitive detention being by its very nature a retribution for a proved misconduct, is imposed for a fixed duration. On the contrary, the preventive

detention is made till a certain date. The authority taking the decision of preventive detention determines till what period the needs of the

maintenance of public order requires the person concerned to be made harmless. If in a given case the State apprehended that the maintenance of

public order required that for the next ensuing 9 months the person should be detained, there will be no justification for detaining the person after

the expiry of those 9 months whatever has been the place in which the detenu was during those period of 9 months. So, it is clear that the punitive

detention is for a certain duration and preventive detention is till the advent of a certain date of the calendar.

In this connection, it is worth nothing that the period of pre-trial detention, if any, cannot be set off against the period of preventive detention,

even if both of them have been caused by the same set of facts. This shows again that preventive detention is not for a determined duration,

consisting even of broken periods, but should be from one date to another date irrespective of what happened to the detenu, subject oily to the

power of the State to cancel or suspend the detention order.

Secondly, the Learned Counsel for the petitioner drew our attention to the scheme and the various provisions of the Tamil Nadu Prevention of

Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, Tamil Nadu Act 14 of 1982

(hereinafter referred to as the Act) to demonstrate that the order of detention has exhausted itself. There is no provision for the cancellation of an

order of revocation passed under S. 14 (1) of the Act. This is in contrast with the provisions of S. 432, Crl.P.C., as per which the Government has

the power to cancel an order of remission of sentence in case of punitive detention and thereupon the person concerned shall have to undergo the

unexpired portion of the sentence. This is quite understandable because in case of preventive detention the revocation of the order of detention

implies the cessation of the existence of the danger to public order and therefore no order can be passed cancelling the order of revocation; only a

fresh order of detention can be passed on fresh facts under S. 14(2) of the Act. This indicates that the preventive detention is not for a specific

duration. If it was so, it would be possible to cancel the order of revocation and detain the person concerned for the remaining period.

Similarly, in case of suspension of detention by way of temporary release under S. 15 of the Act, there is no provision that the detenu will be

detained beyond the date specified in the order of detention so as to make good the period during which he was temporarily released. This again is

in contrast with the provisions of S. 432, Crl.P.C., where it is specifically provided that in case of cancellation of the suspension of sentence the

person concerned will be remanded to undergo the unexpired period of sentence. On the contrary in sub S. 4 of S. 15 it is provided that the

detenu, who does not surrender himself upon the cancellation of the release order, is liable to be prosecuted.

Learned Advocate General argued that if the contention of the Learned Counsel for the petitioned was to be accepted, a person against whom

an order of detention is passed can abscond or escape from jail and re-appear after the expiry of the order of detention and through that course

successfully avoid detention. It appears that the Act has anticipated such a contingency and made adequate provisions. Firstly, the calendar period

which applies for preventive detention commences from the date of detention. So the person concerned once He is apprehended would be in

detention for the whole period indicated in the order unless he was traced long after tin order of detention and the order of detention itself has

become void on account of the lack of proximity between the facts leading to the detention and the feasibility of actual detention. Secondly, S. 7 of

the Act, in addition to the provisions relating to attachment of property, gives power to the Government to direct the person absconding to appear

before such officer at such place and within such period as may be specified in the order notified in the Government Gazette and if the person fails

to comply with such order, he commits an offence for which he can be punished with imprisonment. Further, if the person, who was prominent by

has dangerous activity, becomes absolutely unavailable for arrest and goes underground, he becomes inoffensive and inflicts upon himself a self-

detention.

If the purpose of keeping at bay the professional wrongdoer is achieved in one manner or other, one has to feel satisfied. No doubt, if

preventive detention is mistaken for punishment, then one would be anxious that the detenu ''serves'' his period; otherwise no one would pay

attention to the duration of actual detention in a case of pure preventive detention. As far as the punishment for the offence committed is

concerned, it will be meted out when the resurging culprit is called upon to face the trial. If the ordinary criminal machinery is not found efficient, it

has to be overhauled, but preventive detention cannot be made a substitute to criminal trial with the ulterior motive of inflicting punishment with

facility, without having to resort to a deep investigation and a laborious trial.

Lastly, the phrase ""expiry of a detention order"" used in sub-S.2 of S.14 deserves attention. Much was said about the difference between ""from

the date of the order of detention"" and ""from the date of detention. This does not have much relevance in practice, since there will be in the first

instance a provisional order for detention for a period of not exceeding 3 months under S.3. Theo comes the arrest under S. 4, and only if the

person was secured for detention, the final order is passed under S. 12 after observing the procedure indicated in Ss.8, 10 and 11. The final order

would invariably state that the period of detention would start from the date of detention, which date by that time it known. It is also with reference

to that date tint the maximum period will be determined as provided in S.13. So, the order of detention would expire within the meaning of sub S.2

of S.14, on the expiry of the period mentioned in the order of detention reckoned from the date of detention. Now turning to sub-S.2 of S.14, it is

to be noted that the expiry of a detention order would make possible a fresh order of detention, therefore it is very important to ascertain that date.

The word used is not the ""completion of the detention period"" but the ""expiry of the detention order"". Such expiry will obviously be a fixed

calendar date and would not depend on other circumstances, namely, whether the detenu was actually in detention or not during the whole period.

This would again indicate that as per the concept on which the preventive detention law is based, preventive detention extends from one date to

another, and is not for a certain duration, whether continuously or not, as in the case of punitive detention.

The second contention of the Learned Counsel for the petitioner is that in the present case the petitioner has been continuously in actual

detention from 21st May, 1985 till today, that the order 1st October, 1985 has not substantially altered his position and that he is being kept in

detention beyond the period indicated in the order of detention. Placing reliance on the decision of the Supreme Court in A.K. Gopalan Vs. The

State of Madras, and other decisions which followed it, Learned Counsel for the petitioner contended that any curtailment of freedom of

movement is an invasion on the right of liberty, that the conditions imposed upon the petitioner by order dated 1st October, 1983 by this Court

virtually made him a prisoner in a house, that the detention need not necessarily be in jail, and that the purpose sought after by the detaining

authority had been served. It is true that the Preventive detention does not necessarily mean confinement in jail. Even in case of punitive detention,

imprisonment may be in a place other than a jail. As per S.5 of the Act, detention will be in such place and under such conditions as the State

Government may by order specify and that order is subject to modification as per S.14 of the Act. The place and conditions would be in

consolance with the purpose sought to be achieved, that is to say, preventing the person concerned from acting in any manner prejudicial to public

order. In this case by order dated 1.10.1985 the petitioner was directed by the Court to reside in Chingleput, to intimate his address, to show the

call sheets from the Studio to the Inspector of Police whenever he wanted to attend AVM Studio and to intimate also when he will return, upon

return to report his return to the Inspector of Police. These conditions constitute without any doubt, considerable restraint in the freedom of

movement.

The case of the petitioner is that he was not really released by order, dated 1.10.1985, that the word ''released on bail'' which crept in the

order is misleading and that he was in fact kept in some form of detention. ''Release on bail'' is possible only in favour of accused persons before

trial and during the pendency of appeal, and is based on the presumption of innocence. In case of preventive detention such a contingency does not

arise at all and ''release on bail'' is unknown to and incompatible with preventive detention. Temporary release of a detenu is however

contemplated under S.15 of the Act, but that power is conferred only upon the Government and it is based on the decision the Government may

arrive at about the necessity of keeping the detenu in detention or not, and the court being not qualified for appreciating such a necessity, cannot

also exercise the right to release temporarily. But, when the Court, which has the power to set aside the order of detention itself, is seized of the

matter and cannot arrive at a decision within a reasonable time on account of unexpected circumstances, it has no moral justification to keep the

order of detention in tact. That would result in great injustice if ultimately the order of detention is set aside. In such cases, the Court would

naturally explore the possibilities of modifying the conditions of detention so as to meet the requirements of the State to prevent the detenu from

indulging in nefarious activities and at the same time to minimise the discomfort of the detenu. This is what the Court appears to have done in this

case by order, dated 1.10.1985. This was done by the Court using its inherent power in order to meet an unforeseen circumstance, viz., the

difficulty for the Division Bench to decide on a point in which there was conflict of judicial pronouncements. Such power of course would be

resorted to sparingly in exceptional and compelling circumstances. No doubt, if ultimately the detention order is upheld, it would have occasioned

some favour to the detenu in his having been put under conditions better than contemplated originally. But in other cases, where detention orders

are set aside, the persons concerned would have been in detention wrongfully; such contingencies occasioning favour or wrong to the detenus are

inherent in a system where the power is not concentrated in the hands of a king, but is distributed to various bodies with provisions of review and

appeal. Precautions are to be taken to keep the risks to the minimum, but the risks cannot be altogether avoided. It is to be noted that in this case,

the State Government felt aggrieved by the order, dated 1.10.1985 passed by the Division Bench of this Court and appealed against it, which

appeal was rejected by the Supreme Court. It is also worth noting that the period of preventive detention cannot be set off against the sentence of

imprisonment, if any, which would be meted out to the detenu in case of conviction. Therefore, the conditions under which the detenu was detained

daring the period of detention is immaterial and need not conform to the norms of the eventual sentence of imprisonment. So, there is some force in

the argument of the Learned Counsel for the petitioner that the petitioner was not released but detained under conditions different from those

specified in the original order of the Government.

So, ultimately, the above discussion would disclose that the line of arguments of the Learned Counsel for the petitioner appears to be in

consonance with the provisions of the Act. Now, we shall turn to the decisions of the Court, which have been called upon to deal with similar

situations. Learned Counsel for the petitioner placed before us three decissons. In the first one, which is of the Delhi High Court in Omar Ahmed v.

Union of India 1984 Crl.L.J. 1915, it was held as follows:-

More so when the order of detention was to be operative for a period of one year in terms of the law and the detenu did not come back to India

nor was placed under detention for full one year. The purpose of preventing him from indulging in smuggling activity during that year was in any

case served by his own conduct of remaining outside India. The detention order in such a case was thus liable to be treated as having become stale

and having exhausted itself.

The second decision, which is unreported, is of the Supreme Court in State of Maharashtra & Ors. v. Amirali Sudak Thamby SLP (Crl.) No. 476

of 1984 dt. 20.12.1985. Learned Counsel for the petitioner would say that the detenu in that case was released before the expiry of the period of

detention by the order of the High Court. When the SLP by the State reached the Supreme Court, the Supreme Court found that the petitioner has

become infructuous and dismissed it accordingly. The third decision, which is also an unreported one, is by the Supreme Court in Mrs. Rajrani

Bhandari v. State of Tamil Nadu & Ors SLP (Crl.) No. 994 of 1986 dated 15.7.1986. It was explained by the Learned Counsel for the petitioner

that the detention order in that case was passed on 26.7.1985, that the writ against that order was dismissed by the High Court of Madras on

18.3.1986 and that the petition for Special Leave to Appeal was preferred by the detenu and the detention order was to expire on 25.7.1986. In

that case, the Supreme Court ordered that the detenu be released on parole on condition that he will report every day to the officer in charge of the

nearest police station till 25.7.1986 and disposed of the SLP accordingly. But in respect of none of these two short orders, the Learned Counsel

for the petitioner placed before us the petitions filed before the Supreme Court setting out of the facts and circumstances of the cases in order to

enable us to understand the real import of the orders of the Supreme Court.

As against these decisions, learned Advocate General placed before us three decisions of the Supreme Court. The first one is in State of

Gujarat Vs. Adam Kasam Bhaya, , wherein it was held that if the detenu has served a part of the period of detention, he will have to serve out the

balance. The second decision is in State of Gujarat v. Ismail Juma AIR 1982 S.C. 683 where the Supreme Court held that once the order

quashing the order of detention of the detenu is set aside by the Supreme Court, the order of the High Court rendering the, order of detention non

est itself becomes non est and the order of detention gets life and that it cannot be said that once the maximum period prescribed by law was over,

mere was no order by which the detenu could be put under fresh detention. The third decision which is an unreported one, is by the Supreme

Court in Harish Makhija v. State of U.P. & Ors. Crl.M.P. No. 620 of 1984 in W.P. (Crl.) No. 301 of 1983 dated 11.2.85. In this case, the

application to the Supreme Court was also filed and that application contains the essential details of the case. The writ of Habeas Corpus before

the High Court of Allahabad was dismissed. A writ petition was filed before the Supreme Court which ordered pending disposal of the writ

petition that the detenu would be released on parole and that during the period of parole the detenu shall not leave Lucknow without obtaining the

permission of the detaining authority. After the disposal of the writ petition by the Supreme Court, the State prayed the Supreme Court to direct

the detenu to surrender before the detaining authority to serve out the remaining period, the Supreme Court passed the following before:-

It is obvious that the period of parole cannot be counted towards period of detention. The petitioner should surrender and serve out remaining

period of 141 days of detention.

The decisions cited by the parties show that the Supreme Court did not have occasion to consider in depth the question of law raised by the

detenu and that the law on the point has not yet crystallised. However, there is not a single decision of the Supreme Court with full details in

support of the case of the petitioner whereas there are three decisions of the Supreme Court in favour of the stand taken by the learned Advocate

General, and those decisions have necessarily to be followed in deciding this case. For the abovesaid reasons, the petitions are to be dismissed.

In view of the conclusion arrived at in W.P. Nos. 6445 of 1985 and 10076 of 1986, W.M.P. No. 6775 of 1986 for cancellation of the bail

bond will stand allowed. But the Supreme Court in its order in W.P.(Crl.) No. 329 of 1986, dated 5th September, 1986 observed as follows:

In the event of the High Court dismissing the Writ Petition and, in consequence of the petitioner being liable to be detained immediately thereafter

the High Court may consider it proper to suspend the operation of the order requiring detention of the petitioner for a period of two weeks to

enable the petitioner to apply to this Court for relief.

In view of the observations of the Supreme Court 15 days'' time will have to be granted to the petitioner to approach the Supreme Court for relief,

if any. The Supreme Court is now on vacation. Under the circumstances this order will be operative from 20th January 1987 granting the petitioner

15 days'' time as directed by the Supreme Court and till then the order of the earlier Division Bench passed in W.P. No. 6445 of 1985 as modified

by it will be in force.