AI Structured Summary
Not yet generated for this judgment
Judgment
Arunachalam, J.—These two Writ Petitions are disposed of together by a common order since the detenus concerned are stated to be
involved in the same transaction and the contentions raised are identical. The detenus in these writ petitions are stated to be brothers. The prayer in
these writ petitions is for the issue of a habeas corpus for the production of the respective detenus before this court to be set at liberty, after
quashing the impugned orders of detention dated 10th August, 1991 passed by the second respondent in exercise of the powers conferred by
S.3(3) of the National Security Act read with the relevant Government Order under S.3(2) of the Act, with a view to prevent the detenus from
acting hi any manner prejudicial to the maintenance of public order.
Brief facts which led to the passing of the impugned orders of detention may have to be stated. On 23.7.1991 at 2 p.m. on reliable information
that the detenus were engaged in smuggling out essential commodities like diesel, petrol, Engine oil, cloth, chillies and other materials clandestinely
to Sri Lanka, the residential premises of both the detenus were searched. In W.P. No. 12322 of 1991, the detenus is R.M.S. Meiyappan. The
writ petitioner Thangavadivel is the son of the detenu. In Writ Petition 12567 of 1991, the detenu is R.M.S.Gowthaman, the writ petitioner being
his brother. From the residence of the detenu Meiyappan a 9 mm pistol of Czechoslovakia make, two magazines and 15 bullets were recovered
from the steel bureau kept in the center room of the house. Meiyappan did not possess any licence to keep arms and ammunition. He was arrested
and his confessional statement was recorded. In his confession he admitted that he was in the habit of committing smuggling of essential
commodities to Sri Lanka along with his younger brother Gowthaman. He added that both of them were having close contacts with Liberation
Tigers of Tamil Ealem. As there was shortage of Diesel and Petrol in Srilanka, they were aiding the LTTE, to smuggle Diesel and petrol,
clandestinely from India. Towards that end, they were in the habit of engaging local people. The pistol and ammunition were provided for his
protection by the LTTE. The other detenu Gowthaman attempted to escape when Meiyappan was giving out his confession. Gowthaman was
arrested and he also volunteered a similar confession, as Meiyappan. He further stated that he was in possession of an unlicensed Eistol with
necessary bullets and magazines, to help his brother in smuggling activities. Search of the residence of Gowthaman yielded in seizure of a 9 mm.
Pistol 2 magazines and 24 bullets. Further Gowthaman produced 2 cans containing 35 litres of diesel each, one can containing. 10 litres of petrol
and 5 empty 35 litre Cans smelling diesel. A case in Crime No.436/91 under Ss.25(1) read with 3 of Indian Arms Act; 3(6A) and 7 of the
Essential Commodities Act and S.285 Indian Penal Code was registered by the Muthupetaii police station. Both the detenus were remanded. On a
plea by the investigating agency police custody of both the detenus was ordered. Statements under S.27 of the Indian Evidence Act by the
detenus, led to the recovery of 10 empty thirty five litre cans from a concealed spot in Korayar Naduthittu, at Pettai. Further investigation revealed
that due to smuggling activity indulged in by the detenus, there was dissatisfaction in and inconvenience to the local public. It is under these
circumstances, that the impugned orders of detention were clamped.
Mr. B. Kumar, learned counsel representing the petitioners contended, that under S.3(2) of the National Security Act a person could be
detained if the authority was satisfied that such detention was necessary to prevent him from acting in any manner prejudicial (1) to security of the
State or (2) to the maintenance of public order or (3) to the maintenance of supply and services essential to the community. The grounds of
detention show that they are germane to the third head, though the order had been made under the second head. This, according to the learned
Counsel would indicate not only non-application of mind, but would also lead to the conclusion that the orders of detention were made without
jurisdiction. He further contended that it was essential for the detaining authority to arrive at a decision that the activities of the detenus had indeed
affected public order and therefore prognosis was made to detail them. Nowhere in the grounds of detention the authority has stated that the
activities had resulted in a public order problem.
On these contentions we have heard Mr. B. Sriramulu, learned Public Prosecutor. He submitted, that there was nothing wrong in the detaining
authority having arrived at his subjective satisfaction, on the presumption that the society at large was likely to revolt due to shortage of essential
commodities and that may lead to disturbance of public order. He argued that power of preventive detention was qualitatively different from
punitive detention since the former was a precautionary power exercised reasonably in anticipation and may or may not relate to an offence. In
other words, preventive detention cannot be considered to be a parallel proceeding. Though other grounds have been raised by the learned
Counsel, they need no scrutiny, since the detenus, are bound to succeed on this ground.
We have carefully considered the contentions urged by Mr. B. Kumar. The order of detention shows, that the impugned orders of detention
were clamped, with a view to preventing the detenus from acting in any manner prejudicial to the maintenance of public order. We have already
narrated the grounds of detention in detail, which do not prima facie indicate any nexus to activity prejudicial to the maintenance of public order.
The learned Public Prosecutor pointed out paragraph 2(d) of the impugned order, a part of which reads as follows:
thereby causing a shortage in the essential commodities like diesel and petrol at Muthupettai and the places nearby disrupting the industrial,
agricultural and transport activities which affect the production leading to price hike resulting in dissatisfaction of the public against government
causing public unrest and disorder.
He further referred to paragraph 2(a) of the order of detention, the relevant portion of which reads as hereunder.
As the industry, agriculture and transport affected due to depletion of the said items production of essential commodities get affected leading to
price hike resulting in dissatisfaction of the public against the Government causing public unrest and disorder.
He then referred to paragraph 3 of the grounds of detention wherein the detaining authority has stated that the clandestine operations indulged in by
the detenus.
would diminise and deplete the supply and services to the community specifically in Tamil Nadu, which is prejudicial to the maintenance of public
order and national security, and as further recourse to normal Penal Law would not have the desired effect of effectively preventing him (them)
from indulging in such activities which are prejudicial to the maintenance of public order.
The contention of the State was, that since it has been mentioned in the orders of detention that activities were prejudicial to the maintenance of
public order and the material placed before the detaining authority, was sufficient to presume, that there was likelihood of revolt by the public, the
impugned orders of detention, have been justifiably passed. A careful look, at the grounds of detention shows, that the materials sought to be relied
upon fall under the 3rd limb of prejudicial activity, which is referable to the maintenance of supply and services essential to the community. No
material is available to show that the detenus or their associates had at any time involved themselves in causing panic and terror among the people
of the locality or that there was even a remote likelihood of the detenus causing panic and terror among the people in the locality, affecting the even
tempo of life. The learned Public Prosecutor brought to our notice the statements of a few of the witnesses examined during investigation, on the
crime registered. Those statements are practically similar. They reveal that because of the smuggling activity indulged in by the detenus, there was
shortage of foodgrains, sugar and chillies and due to insufficient stock of diesel and petrol taxis and autorickshaws were demanding excess hirer
charges. People of the locality were put to great inconvenience and they had to necessarily seek for foodgrains and other essential commodities
from other places, which leads to further exhorbitant expenses. They were also forced to starve on certain occasions. If such conditions continued
they will be put to great hardship due to lack of food and impossibility of free movement, by vehicles. These statements though may picture the
hardship experienced by the people in the locality, due to lack of essential commodities, they do not anywhere indicate even a remote possibility of
disturbance of public order. Even for drawing a presumption basic facts must be available.
5A. We may at once state that though the learned Public Prosecutor is justified in pointing out the difference between punitive and preventive
detention, it will be equally important that satisfaction of the detaining authority had to be arrived at on the basis of the past activities of the detenus
and the anticipated behaviour, in the light of the surrounding circumstances. The material therefore obviously must indicate disturbance of public
order, public peace or tranquillity which alone would justify passing of the impugned orders with a view to preventing the detenus from acting in
any manner prejudicial to the maintenance of public order.
It would be relevant to extract the observations of the Supreme Court in Magan Gope Vs. The State of West Bengal, . The Supreme Court
considered the validity of the order of detention made under S.3 of the Maintenance of Internal Security Act, 1971. The detention order was made
to prevent the detenu from acting in any manner prejudicial to the maintenance of public order. The impugned order was founded on two grounds.
One was that on 1.11.1973 at about 09.00 hours the detenu along with his associates attacked Home Guard No.900 Aswini Mohanti and 3
others of Layadi Home Guard Camp who were on cordoning patrol near kashipur village Police Station, Joypur close to Bihar border, when they
arrested the detenu with rice, dalda kerosenee oil, wheat which were being carried by him. The detenu threatened them with death and snatched
away the seized commodities from their custody. A crime was registered under Act X of 1955 and for offences under Indian Penal Code. The
second ground was that on 6.11.1973 at about 19.00 hours, the detenu and his associates attacked the investigating police officer and his police
party with deadly weapons and attempted to resist his arrest, while they went to Sidhi village, under Joypur Police Station, to investigate a case.
The contention advanced on behalf of the detenu was that neither of the grounds of detention was relevant to Public Order. The Apex Court stated
thus:
It will be seen that the power can be exercised only on one or more of the grounds enumerated above. If the exercise of the power is not on the
face of the order correlated to any of those grounds or concerns activities, which are not germane to any of these grounds, such exercise would be
vitiated for lack of jurisdiction. Further, the satisfaction spoken of in S.3(1) which is the sine qua non to the exercise of the power is the subjective
satisfaction of the authority which cannot be tested in Court by objective standards. Ordinarily, therefore, the Court cannot go behind the
satisfaction expressed on the face of the order. As pointed out by this court in Dr. Ram Manohar Lohia Vs. State of Bihar and Others, when an
order is on the face of it not in terms of the rule, a court cannot equally enter into an investigation whether the order of detention was in fact, that is
to say irrespective of what is stated in it, interms of the rule"". Thus where the order ex facie is made with a view to prevent an act prejudicial to the
maintenance of Public Order, the detaining authority cannot be permitted to show that in fact the order was made to prevent an act prejudicial to
the maintenance of supplies and services essential to the life of the community.
XX XX XX XX XX
Considered in the light of the above principles, it is quite clear that the activity which constitutes the substratum of the first ground of detention
is manifestly a case of interstate smuggling or attempt to smuggle essential commodities such as rice, dalda kerosenee oil and wheat. Smuggling
ordinarily is a calendestine activity. Broadly speaking, its concept is repugnant to what is ''public''. As rightly observed by Falshaw J. in AIR 1951
P&H 157 - (52 Cri L.J., 17): Prima facie there is no connection between smuggling which is essentially a secret operation and the maintenance of
public order in which the operative word is public."" We will, however, hasten to add that this broad proposition as to the distinction between an
act of smuggling and an act affecting public order is not an abstract or absolute proposition of law. Cases are conceivable where the act of
smuggling maybe accompanied by such violence and disorder that it throws out of gear the even tempo of the life of the community in the locality
or disturbs public tranquilly The broad distinction between an act of smuggling and one prejudicial to ''Public Order'' drawn by us is helpful only (or
the purpose of determining whether in the circumstances of the present case, the smuggling activity attributed to the detenu as incorporated in the
first ground to detention, was germane to the maintenance of public order for achieving which the preventive detention in question has been
professedly made. In our opinion the answer to this question must be in the negative. The only fact which has been mentioned in addition to the
smuggling of some essential commodities in that ground is that the detenu and his associates had threatened the Home-Guards and snatched away
the seized commodities from their custody. Further fact mentioned is that that this activity comes within the purview of SS.143/186/332/506 I.P.C.
and 7(1)(a)(ii) of Act X of 1955. This latter act to the effect that such and such offences were committed was only a conclusion drawn by the
authority. There is absolutely no mention that any scare was caused in the locality. Nor is it alleged that the detenu or his associates were armed
with any deadly weapons or that their acts had caused panic and terror among the people of the locality. The incident was confined to the detenu
and his associates on one hand and the Home-guards who checked them on the other. Clearly therefore it was not an activity which was
prejudicial to the maintenance of Public Order. At the most it could be said to be an activity affecting law and order. Nor can the order be justified
on the ground that this activity was manifestly prejudicial to the maintenance of supplies and services essential to the community. We have stated
earlier that the Court cannot go behind the subjective satisfaction of the detaining authority as expressed in the detention order and permit it to
justify is order on a ground different from the one mentioned on the face of the order.
We are therefore of the opinion that the first ground of detention had no real nexus with the maintenance of Public Order. In view of this
finding, it is not necessary for us to consider whether the criminal act incorporated in the second ground of detention falls within the category of an
act affecting Public order or one concerning law and order. If one out of several grounds of detention is found to be irrelevant, the order of
detention shall stand vitiated. The reason is that in such cases, it cannot be reasonably predicted as to what extent the irrelevant ground had
influenced the subjective satisfaction of the detaining authority.
When the case was decided by Supreme Court, severability was not feasible. In the instant case, we have only one ground and hence severability
does not arise. In the light of the law laid down by the Supreme Court, the impugned orders of detention cannot be sustained.
Again in AIR 1969 SC 1004 Sushants Goswami v. The State of West Bengal the Apex Court while considering several writ petitions on scope
of public order held that grounds similar to the one in the instant writ petitions, might have been relevant to the head of maintenance of supply and
services essential to the community, but not relevant to maintenance of public order. The Supreme Court went on to add, that it was somewhat
surprising and altogether incomprehensive as to how any detaining authority could have missed seeing that the detention of the petitioner therein
might have been justified under the head ""maintenance of supplies and services essential to the community"" but not the ""maintenance of Public
Order"". We are prepared to hold on facts, and in the light of the law laid down by the Supreme Court, that by no stretch of reasoning materials
supplied to the detenus can be regarded as relevant to public order.
As observed by the Supreme Court in Magan Gope Vs. The State of West Bengal, if the exercise of the power is not on the face of the order
correlated to the ground on which the impugned order had been made, such exercise of power would be vitiated for lack of jurisdiction. It will also
show total non-application of mind. The ground urged on behalf of the detenus, will have to be upheld. These two writ petitions are allowed. The
detenus are directed to be set at liberty forthwith unless their detention is otherwise required.