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Judgment
V.S. Sirpurkar, J.—Petitioner herein is the wife of one B. Thavamani who is ordered to be detained under the provisions of Section 3(2) of
the National Security Act, 1980, hereinafter referred to as ''the Act'', by the order dated 18-02-1999, passed by the District Magistrate and
District Collector, Karur District, Karur.
The allegation against the detenu is that he is the Secretary of one organisation called Radical Youth and Student Federation. In the grounds of
detention, as many as four cases are mentioned against him as the adverse cases, and one case is mentioned as the ground case for detention. It is
suggested that there is a case pending against him in Crime No. 29 of 1998 u/s 4(A) of Tamil Nadu Open Place (Prevention of Disfigurement) Act,
1959, wherein the allegations are that on 12-1 -1998 some inflammatory slogans appeared on the walls of the Government Hospital, Bus Stand,
Karur. The slogans incited the general public not to cast their vote in the forthcoming Parliamentary election and it so appeared as if the said
slogans were issued at the instance of the Radical Youth and Student Federation of which the detenu was the District Secretary. He was therefore
arrested on 16-1-1998 and was released on bail, after he remained in remand upto 29-1-1998 from 17-1-1998.
The second case relied upon is vide Crime No. 577 of 1998 under Sections 153 (A) of Indian Penal Code and 4 (B) of Tamil Nadu Open
Place (Prevention of Disfigurement) Act. 1959. The incident in this case is suggested to have taken place on 13-10-1998 at about 17.00 Hours,
wherein a Sub Inspector of Police with his patrolling police party found the detenu and four of his associates issuing hand-bills, inducing the public
for anti-social activities, in a manner prejudicial to the maintenance of Public Order. Such hand-bills were also found pasted on the walls of
Vivekananda School. The detenu is said to have been arrested on 14-10-1998 at 11.20 Hours, when he was also arrested under the Crime No.
578 of 1998 of the same Police Station, namely Pasupathipalayam.
The third case is vide Crime No. 578 of 1998 for offences under Sections 147, 143. 188. 353. 506 (ii) of Indian Penal Code. This is pertaining
to the incident dated 14-10-1998 where the detenu along with his 24 associates was found obstructing the vehicular traffic and demanding to
arrest the management members of Vivekananda School. It is alleged that when the Sub Inspector of Police tried to clear off the vehicular traffic,
the agitators threatened the drivers not to take the buses for the stand and pushed the Sub Inspector of Police while on duty, and therefore the
detenu was arrested at 11.20 hours and brought to the police station. Significantly, the Crime Nos. 577 and 578 of 1998 arose one and the same
time in both cases the detenu was released on bail by court on 16-10-1998.
The last adverse case is also stated to have taken place on 14- 10-1998, in respect of the incident which took place at 10.55 hrs. which is
barely 25 minutes before the arrest of the detenu in respect of the incident which concerned the third adverse case. This fourth adverse case is
covered by Crime No. 5 79 of 1998 and is for the offences under Sections 147, 341, 336, 325 and 3 of Tamil Nadu Open Place (Prevention of
disfigurement) Act, 1959. In this incident, it is stated that a group of people stopped the vehicular traffic and waylaid the bus near Thinnappa
Nagar main Road. They broke the Wind glasses by pelting stones on the bus and caused damage to the tune of Rs. 5000/-. The breaking of one
of the wind glasses caused bleeding injury to the driver. The conductor of the bus namely, Sukartharajan noticed that one of the persons in the
group has shouted as ""Sukumar, Ayyasamy as directed by Thavamani Palanisami the work was completed, we can escape from the scene"" and
after that the said Sukumar and his associates ran away. It is suggested that even in this case, it was apparent that it was the detenu, who has
designed the plan and the said plan was acted upon by Sukumar and Ayyasamy as per the statement of Sukartharajan. There*is one significant
sentence in the grounds, which is as under:
He is also creating the poverty people into the criminal conspiracy.
It is not stated here as to when the detenu was arrested in Crime No. 579 of 1998, but it is apparent that his arrest has been shown, as in the
earlier two cases. It is also pointed out that he has been released on bail on 16-10-1998.
The ground case is stated to be covered under Crime No. 580 of 1998, wherein it is suggested that on 14-10-1998 at about 12.45 hours one
N. Sathiyanathan, conductor of Kumaran bus service preferred a complaint before the Head Constable of Pasupathipalayam Police Station that
about 11.30 hours, the bus bearing registration No. TN 47.D 5868, which was proceeding from Karur to Trichy was attacked by an unlawful
assembly consisting of five unidentified persons along with ten other associates conjointly pelted stones on the bus and broke the driver''s side
glasses and one member of the unlawful assembly shouted that they had complied with the instructions of Thiruvalargal Thavamani, Jagananathan
and Palanisami and this person was none else but one Thiru Sukar, who has also been referred to in earlier mentioned adverse cases. It is also
stated that the accused persons were arrested after the investigation on 14-10-1998 itself and gave the confession that they had acted as per the
instructions and on the plans prepared by the detenu. Even in the ground case, it is suggested that the said detenu was released on bail on 16-10-
1998.
6-A. On the basis of these cases, the detaining authority proceeds to record that Thiru Thavamani is creating panic among the general public in the
places, which is the industrial area and where vehicular traffic takes place. It is then recorded that all the passengers of the bus arid the public off
loaded the bus and ran for their security and thus his acts ""created the poverty people into criminals"". It is then suggested that therefore the detenu
was an anti-social element and had acted in the manner prejudicial to the maintenance of public order and therefore the concerned authority was
satisfied that the order of detention should be passed against Thiru Thavamani, with a view to prevent him from indulging in such further prejudicial
activities in future.
In the fourth paragraph of the grounds of detention, the detaining authority has referred to the fact that he was aware of the detenu having been
released on bail on 16-10-1998. He then recorded his satisfaction in making the detention order on the detenu that he was an anti-social element
and if allowed to remain at large, he would indulge in such prejudicial activities in future and would disturb the Public Order it was therefore, that
the detention order was necessary against him.
The learned Senior counsel Mr. K. Chandru while assailing the order of detention points out that there was absolutely no material before the
concerned authority to come to a reasonable conclusion that even in future that the detenu would cause disturbance and would be prejudicial to the
maintenance of public order. The learned counsel secondly points out that all the incidents which have been relied upon are so old that there is no
live-link remaining between the so called prejudicial activities and the necessity to pass an order of detention. The learned counsel thirdly points out
that apart from the absurd language used in the detention order, it was clear that the incidents were merely imaginary and framed up with a view to
implicate the detenu. Any how the concerned authority has not applied its mind to the apparent and glittering absurdities in the grounds relied upon
for the purpose of detention.
The learned Additional Public Prosecutor Mr. G.M. Syed Fasiuddin supported the order suggesting that the detenu''s liberty would be clearly
prejudicial to the preservation of public order and considering that Karur is a busy industrial area and further considering that the acts on the part of
the detenu were prejudicial even to the smooth traffic in that area and the order was wholly justified According to the Additional Public Prosecutor,
the very fact that the detenu had engaged in the anti-social activities, which were shown, was good enough to presume that he would also continue
his nefarious activities in future and there the detaining authority was well justified in ordering the detention.
It is seen from the grounds that the first incident is almost one year old. That incident had taken place on 12-01-1998 where the allegation is
that some persons had painted the slogans and the detenu has been held responsible as he was the Secretary of the so called organisation called
Radical Youth and Student Federation. The learned counsel further pointed out the other incidents in the adverse case have taken place only on
13-10-1998 and 14-10-1998. Even the ground case is stated to have taken place on 14-10-1998. The learned counsel took pains to point mat in
all these cases, namely, three adverse cases and the ground case, the detenu was already released on bail on 16-10-1998 itself. The learned
counsel pointed out that in an earlier order, the court had released the detenu on bail on the ground that the version of the Government and the
documents referred were contradictory to each other. The learned counsel therefore points out mat if the detenu was on bail from 16-10-998 there
was a period of more than four months between these incidents and the passing of the detention order, which is supposed to have been passed for
preventing the detenu from disturbing the Public Order. The learned counsel therefore points out that there was absolutely no material before the
detaining authority to justify the passing of the detention order, since no material is brought to show that anything has happened in between the four
months, namely, 16-10-1998 and the date of passing of the order i.e., 18-02-1999. According to the learned counsel, if admittedly the detenu
was released on bail long back i.e. on 16-10-1998 and for four months there was no disturbance in the public order, there was hardly any material
before the concerned authority to come to the conclusion that his continued liberty would be prejudicial to the maintenance of Public Order. The
learned counsel relied upon a decision reported in Fazal Ghosi and Others Vs. State of U.P. and Others, . The learned counsel more particularly
relied on the observations made by the Apex Court in the third paragraph of the said judgment. The observations are to the following effect:
In the present case, we are unable to discover any material to show that the detenus would act in the future to the prejudice of the maintenance of
public order. Even if it is accepted that they did address the assembly of persons and incited them to lawlessness there.is no material to warrant the
inference that they would repeat the misconduct or do anything else which would be prejudicial to the maintenance of public order. The District
Magistrate, it is true, has stated that the detention of the detenus was effected because he was satisfied that it was necessary to prevent them from
acting prejudicially to the maintenance of public order, but there is no reference to any material in support of that satisfaction. We are aware that
the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material. We
are concerned here hot with the sufficiency of that material but with the existence of any relevant material at all.
The learned counsel very heavily, relied on this observation of the Apex Court and argued that all the circumstances are identical in the present
case. A reading of the order of detention and the grounds therein would clearly show that there is absolutely no material on record to suggest that
anything was done by the detenu after his release on bail as back as on 16-10-1998. Even otherwise, there is nothing on record to suggest that the
detenu himself or at his instance somebody else took the law into his hands disturbed the tranquility and peace of the concerned place. The
grounds do not show any such material being available to the District Magistrate. The detaining authority should have noted that the period of four
months had elapsed since the detenu was released on bail on 16-10-1998 and in these four months no incident had taken place. Under the
circumstances, it will have to be presumed that there was absolutely no material before the concerned authority to come to the conclusion that the
continued liberty of the detenu would prejudice the public tranquility or Public Order.
The learned Additional Public Prosecutor suggested that the very fact that the detenu had acted in the manner as he did in the month of
October, 1998, was itself sufficient to draw an inference that he would in future also take part in such activities.
We are afraid that we cannot accept this contention of the Additional Public Prosecutor, in the absence of any material. In fact, the Apex
Court has taken a view in the decision reported in T.A. Abdul Rahman v. State of Kerala (1990 SCC (Cri) 76) that there must be a live-link
between the prejudicial activities and the resultant detention. Now here is a case where the detenu was said to be involved in the most insignificant
activities. There would be much to say regarding the four ground cases also and it completely beats us as to how four continuous crime numbers,
namely Crime Nos. 577 to 580 of 1998, were given against the detenu. But we would not choose to go into that aspect nor to go into the
correctness of the allegations, since that is not our jurisdiction. However, one thing is certain that the incidents took place somewhere in the second
week of October, 1998, and then every thing was normal and the order came to be passed only in the third week of February, 1999. There was
thus no live-link between the prejudicial activity and the resultant order to suggest that even in future the detenu would engage himself in the
prejudicial activities for which he was put under detention. It is trite law that the detention has to be preventive in nature and not punitive. It is a
clear cut example where the detention is punitive, since there is absolutely no live-link between the order and the so called prejudicial activities.
In view of the above observations, it is clear that the detention order passed against the detenu cannot be sustained and has to be set aside. It
is accordingly quashed. The detenu is directed to be released forthwith unless he is required in connection with any other case.