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1996 DIGILAW 823 (MAD)

Thangavelammal v. State of Tamil Nadu & Another

1996-08-12

JANARTHANAM, VENKATACHALAM

body1996
Judgment :- Janarthanan, J 1. One Thangavelammal (Petitioner) is the detenue. The detenue, it is said, is a ‘bootlegger’. Apart from the ground case, the occurrence relating to which is said to have happened on 112. 1995, she had come to adverse notice in three other cases. 2. The Collector and District Magistrate Kamarajar District, Virudhunagar, (2nd Respondent), in exercise of the powers conferred by Sub-section (1) of Section 3 of the Tamil Nadu Act 14 of 1982, clamped upon the detenue, the impugned order of detention in his proceedings Cr.M.P.No.24 of 1995 dated 212. 1995 with a view to preventing her from indulging in any activity prejudicial to the maintenance of public order and public health. 3. Mrs.R.Subadradevi, learned counsel appearing for the petitioner, would press into service the following points for consideration:- .(1) There was no independent consideration by the first respondent-Gov- ernment, in confirming the impugned order of detention; and .(2) There was utter non-application of mind on the part of the second respondent Detaining Authority, as respects the imminent possibility of the detenue coming out on bail, as is getting reflected by the averments in paragraph 5 of the grounds of detention. 4. Mr.R. Krishnamoorthy, learned Advocate General representing Mr. Syed Fasuiddin, learned Additional Public Prosecutor, would, however, repel such submissions and also produce the relevant files for perusal and consideration of this Court. 5. Point 1:-An axiomatic proposition of law it is, as laid down by the Apex Court of this country that confirmation of the impugned order of detention has to be independently considered by the appropriate Government, in the sense of not having been influenced by the opinion of the Advisory Board. We are here to point out the reality of the situation, in the light of the scheme contained in Tamil Nadu Act 14 of 1982 relatable to the passing of the order of detention and ultimately its confirmation. The event of the confirmation of the impugned order of detention would culminate subsequent to the opinion of the Advisory Board. The Advisory Board, after the formation of its opinion, sent a communication to the appropriate Government, its opinion. The opinion may be either way. The event of the confirmation of the impugned order of detention would culminate subsequent to the opinion of the Advisory Board. The Advisory Board, after the formation of its opinion, sent a communication to the appropriate Government, its opinion. The opinion may be either way. If the opinion of the Advisory Board is to the effect that there is sufficiency of cause for the detention, the appropriate Government, notwithstanding such expression of opinion, may come to a different conclusion on the sifting and scanning of the materials available on record and revoke the order of detention. But, on the other hand, if the Advisory Board Communicates its opinion to the effect that there is no sufficiency of cause for the continued detention of the detenue, there is no other go for the appropriate Government, except to revoke the impugned order of detention, earlier passed. This sort of the aspect is getting reflected under the salient provisions adumbrated under Section 12 of Act 14 of 1982. The reason for our reference to this aspect of the matter is rather obvious. 6. The moment the appropriate Government receives the file from the Advisory Board, along with its opinion, to say, that if such opinion is scanned by the appropriate Government, it is likely to be influenced by the opinion so expressed by the Advisory Board, cannot at all be expected to commend acceptance at the hands of Court. To say that the appropriate Government, despite the receipt of the file containing the opinion of the Advisory Board, has not at all seen the opinion from the file, is nothing but sheer exhibition of hypocrisy. The fact that the appropriate Government after the receipt of the file from the Advisory Board had seen the opinion of the Advisory Board cannot by itself be stated that by such process, the appropriate Government was influenced by the opinion of the Advisory Board. Even after taking into consideration the opinion of the Advisory Board, the appropriate Government can come to its own independent conclusion, on taking into consideration the entire relevant materials available on the file and revoke the order of detention. The question as to whether the appropriate Government was influenced by the opinion of the Advisory Board, has to be looked upon from the very intrinsic material available on the face of the confirmation order itself and nothing further. The question as to whether the appropriate Government was influenced by the opinion of the Advisory Board, has to be looked upon from the very intrinsic material available on the face of the confirmation order itself and nothing further. If the confirmation order passed by the Government reflects that the appropriate Government confirmed the impugned order of detention solely on the basis of the opinion of the Advisory Board, it goes without saying that there was no independent consideration on the part of the appropriate Government. 7. In the instant case, the copy of the confirmation order passed by the first respondent-Government is available at page 177 of the file, in the shape of G.O.(RT) No.723 Prohibition and Excise (12) Department, dated 4. 3. 1996 in Tamil. Based on this confirmation order, telex message has been issued by the first respondent-Government and the copy of the telex message is available at page 161 of the file. The copy of the telex message reads as under:- “Please refer G.O.(RT) No.69 Prohibition and Excise dated 1. 96 (AAA) Based on the report and opinion of the Advisory Board, (The) Order of detention dated 212. 95 made against Thirumathi Thangavelammal by the District Magistrate of Kamarajar District was confirmed by Government in G.O.(RT) No.723 Prohibition and Excise dated 3. 96 (AAA) Order follows (AAA). Please serve (The) copy of this telex on (The) detenu on same day of its receipt and return served copy at once”. 8. From the telex message, as extracted above, it is rather crystal clear that the confirmation of the impugned order of detention by the first respondent-Government was apparently based on the opinion of the Advisory Board. The question is whether the telex message so extracted really reflects the confirmation order in G.O.(RT) No.723 Prohibition and Excise Department dated 3. 1996. We have perused the contents of the confirmation order in the said G.O. Our perusal reveals that the first respondent-Government referred to the opinion of the Advisory Board, and it had also taken into consideration all the relevant materials, inclusive of the grounds of detention and thereafter, the first respondent-Government concurred with the opinion expressed by the Advisory Board, as relatable to the existence of the sufficiency of the cause for the continued detention of the detenue. Such being the case, can it be said that the first respondent-Government had not acted independently in confirming the impugned order of detention uninfluenced by the opinion recorded by the Advisory Board? Our answer cannot be any one other than this. The first respondent-Government, did in fact, act independently in taking all relevant materials into consideration, inclusive of the grounds of detention, de hors the opinion of the Advisory Board in confirming the impugned order of detention. In such state of affairs, the telex message, as extracted above, which is not in tune with the confirmation order passed by the first respondent-Government is of no consequence. Of course, while such a similar question came to be canvassed in the morning of Thursday (8. 1996), we happened to pass an order in HCP No.307 of 1996. In the said order, we have taken into consideration a telex message given by the Government to the Superintendent, Central Prison, Madurai, which is in pari materia with the contents of the telex message as given in the case on hand. We have not taken into consideration the materials getting reflected in the confirmation order passed by the Government, while passing the order in the said case. We only thought that the telex message given in that case, did reflect the confirmation order passed by the Government. That perhaps was the reason for ourselves to allow the habeas corpus petition and set aside the order of detention. By way of curiosity, while considering the arguments of this case, we also directed learned Additional Public Prosecutor to produce again the file in the other case just to have a glance or glimpse into the contents of the confirmation order passed by the Government in that case, which is available at page 95 of the file produced in that case. We are able to discern, after going through the confirmation order, that the language couched in the said order, is in pari materia with the confirmation order, as available in the case on hand, which is available at page 177. If we had carefully analysed the contents of the confirmation order in the earlier case, there would have been no occasion to express an opinion as has now been expressed in that case. There is no other go except to own our mistake and revise our opinion in the present case. If we had carefully analysed the contents of the confirmation order in the earlier case, there would have been no occasion to express an opinion as has now been expressed in that case. There is no other go except to own our mistake and revise our opinion in the present case. In this view of the matter, Point 1 is answered against the petitioner. .10. POINT 2:- This point revolves on the question of utter non-application of mind on the part of the second respondent- Detaining Authority in consideration of the question of imminent possibility of the detenue coming out on bail and her further indulging in prejudicial activity, affecting the maintenance of public order. This aspect of the matter had been considered by the detaining Authority in paragraph 5 of the grounds of detention and the relevant portion in the said paragraph is reflected as below:- .“5. I am aware that Thirumathi Thangavelammal is now in remand and she is lodged at Women Special Cell, Madurai. The bail application moved on her behalf in the Court of Judicial Magistrate, Sivakasi, was dismissed by Judicial Magistrate, Sivakasi on 212. 1995. However, there is an imminent possibility of her filing bail application or move the High Court, seeking to enlarge her on bail”. .11. From what has been extracted above, the 2nd respondent-Detaining Authority considered the question of the imminent possibility of filing of a bail application, seeking to enlarge her on bail, and there was no application of mind on the part of the second respondent-Detaining Authority, as respects the imminent possibility of the detenu. coming out on bail and her further indulging in prejudicial activities, affecting the maintenance of Public Order and health. The imminent possibility of the detenue filing a bail application, cannot at all tantamount to the imminent possibility of the detenue coming out on bail and her indulging in prejudicial activities. In such circumstances, it cannot be stated that there was due consideration of the imminent possibility of the detenue coming out on bail by the second respondent-Detaining Authority, in paragraph 5 of the grounds of detention, as stated above. Such being the case, it goes without saying that there is utter non- application of mind on the part of the second respondent-Detaining Authority, while considering the questions of imminent possibility of the detenue coming out on bail and her indulging in further prejudicial activities. Such being the case, it goes without saying that there is utter non- application of mind on the part of the second respondent-Detaining Authority, while considering the questions of imminent possibility of the detenue coming out on bail and her indulging in further prejudicial activities. On this sole and short ground, as rightly pointed out by learned counsel for the petitioner, the impugned order of detention deserves to be set aside. 12. Before parting with the case, we want to pen down a word of appreciation to the members of the bar, viz., M/s.S.Swamidoss Manoharan, K.Jagannathan, S.M.Abdul Khader, V.Parthiban and N.Duraisami, for their participation in the discussion relating to point No.1. We also express our gratitude to Mr.R.Krishnamoorthi, learned Advocate General, who came rushing to the Court when called upon to do so, for arguing the question revolving on Point No.1 and but for the decision, we arrived at here on point No.1, it appears a calamitous situation would have arisen, in the sense of the same question required to be considered in numerous habeas corpus Petitions to be posted in the list for decision in the ensuing period. 13. Our finding on Point No.1 is against the detenue. However, our finding on Point No.2 is in favour of the detenue. In view of our finding on Point No.2, it goes without saying that the impugned order of detention deserves to be set aside. 14. In fine, this HCP is allowed. The impugned order of detention is set aside and the detenue, is ordered to be set at liberty forthwith, unless and until she is required to be detained in connection with any other cause or case.