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1999 DIGILAW 2826 (MAD)

Thennavan v. The Government of India and others

1999-12-16

K.GNANAPRAKASAM, V.S.SIRPURKAR

body1999
V.S.Sirpurkar, J.: In the present petition, which is filed by the detenu himself, the petitioner challenges the order dated 26.5.1999, passed under the provisions of Sec.3(2) of the National Security Act, 1980 by the District Collector and District Magistrate, Sivagangai District, Sivagangai, directing the preventive detention of the detenu Thennavan, son of Machakalai, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. 2. Among the grounds supplied, it is stated that some incidents are relied upon. The first incident is dated 5.10.1998 where the detenu, with his other colleagues, had formed an unlawful assembly and had obstructed the transport corporation bus and caused injury to the driver of the bus. No crime number has been mentioned in respect of this incident in paragraph 1. Instead, it is stated in paragraph 2 that on the same day, at about 13.15 hrs., the said unlawful assembly caused damage to the bus, for which Crime No.387 of 1998 involving offences under Secs.147, 341, 427, I.P.C. and Secs.2 and 3 of the T.N.P.P.D.L. Act was registered. It is then suggested that the detenu was enlarged on bail for this offence. In paragraph 4, another incident dated 3.5.1999, again a formation of unlawful assembly, is relied upon and it is suggested that a transport corporation bus was set to fire by that unlawful assembly for which Crime No.152 of 1999, involving offences under Secs.147, 148, 341, 506(II) and 435, I.P.C. and Secs.2 and 3 of T.N.P.P.D.L. Act, was registered. In paragraph 5, another incident, dated 3.5.1999, of the similar nature is relied upon and it is alleged that the said unlawful assembly broke the diesel tank and set fire to the bus, It is suggested that Crime No.154 of 1999 for offences under abovementioned sections, barring Sec.506(II), I.P.C. was registered. In paragraph 6, an incident, dated 4.5.1999, of the similar nature of formation of an unlawful assembly is relied upon and it is alleged that the said unlawful assembly pelted stones and caused damage to the police vehicles and for that, Crime No.156 of 1999 involving offences, under Secs.147, 341, 336, 353, 506(II), I.P.C. and Secs.2 and 3 of T.N.P.D.L. Act was registered. Lastly, in paragraph 7, the incident dated 4.5.1999 of the similar nature is relied upon and it is alleged that Government vehicles were damaged on that date about 11.45 hrs. Lastly, in paragraph 7, the incident dated 4.5.1999 of the similar nature is relied upon and it is alleged that Government vehicles were damaged on that date about 11.45 hrs. by that unlawful assembly by pelting big stones. It is alleged that Crime No.157 of 1999, involving offences under Secs.147, 353, 379, I.P.C. and Secs.2 and 3 of T.N.P.P.D.L. Act was registered by the police,. Paragraph 8 of the grounds suggest the fats dependent upon the incidents mentioned above, which are dated 5.10.1998, 3.5.1999 and 4.5.1999. In paragraph 9, it is suggested that the detenu was arrested on 17.5.1999 at 04.00 hrs. at T.Palaiyar railway-gate and judicial remand was ordered till 14.6.1999 and further he was remanded upto 28.6.1999. It is only on basis’s of these grounds that the Detaining Authority has chosen to pass the order of detention. In paragraph 10, this is what the Detaining Authority has mentioned. “I am aware that Thiru Thennavan, if released on bail he may indulge in such further activities in future as well which will be prejudicial to the maintenance of public order.” 3. Learned counsel Mr.Veerasekaran points out that there is a clear non-application of mind on the part of the Detaining Authority inasmuch as there has been a total non-consideration on the part of the authority of the involvement of the detenu in respect of a major offence under Sec.307, I.P.C, for which the detenu was arrested on 17.5.1999. He invites our attention to page No.147 of the documents supplied to the detenu and points out that it is an arrestcard in respect of Crime No. 149 of 1999, involving offences under Secs.147, 148, 338, 328, 506(II) and 307, I.P.C. Learned counsel points out that this arrestcard would suggest that the detenu was arrested for a major offence under Sec.307, I.P.C. and that one crime was registered against him. However there is absolutely no reference to this in the grounds even distantly. Learned counsel, therefore, says that the Detaining Authority was probably not even aware of the arrest of the detenu and his involvement in Crime No.149 of 1999, which involved a major offence under Sec.307, I.P.C. Learned counsel points out that if the Detaining Authority was aware of this, then it had to be reflected in the grounds and the grounds are completely silent about this fact. According to learned counsel, this fact is a very vital fact as it could have affected the decision of the Detaining Authority to or not to order the Preventive Detention. 4. Learned Public Prosecutor points out, however, that the very fact that the arrestcard was supplied to the detenu would mean that the said arrestcard was a relied-upon document, which went on to suggest that the Detaining Authority was aware of the fact of the arrest of the detenu on 17.5.1999 for the offences, including the major offence under Sec.307, I.P.C., covered by Crime No. 149 of 1999. According to the learned Public Prosecutor, therefore, it was not necessary for the Detaining Authority to separate consider that fact and, at any rate, even if that fact was not reflected in the grounds, it would not make any difference so long as it could be seen that the concerned authority was aware of the involvement of the detenu in that major offence. 5. At the outset, it must be clarified barring the arrestcard, there is no other document on record suggesting as to what has actually happened to the Investigation in Crime No.149 of 1999. There is no document on record to suggest as to how the detenu was dealt with after his arrest, as to whether he was produced before the concerned Judicial Magistrate and as to whether his remand was extended further. The documents are totally silent about it. Though at the most it can be said that the Detaining Authority was aware that the detenu was arrested on 17.5.1999 for the offences covered under Crime No.149 of 1999 which also involved a major offence as compared to the earlier offences. However, since there is nothing on record to suggest as to what has actually happened there after it must be said that there is nothing on record to suggest that the Detaining Authority was aware regarding the arrest of the detenu and continuation of the same by way of judicial remand or otherwise. It is surprising that the Detaining Authority should have made reference only to the minor offences and should have completely left out of consideration the major offence under Sec.307, I.P.C. covered by Crime No.149 of 1999 and in fact, there is no reference whatsoever to that crime in the grounds. It is surprising that the Detaining Authority should have made reference only to the minor offences and should have completely left out of consideration the major offence under Sec.307, I.P.C. covered by Crime No.149 of 1999 and in fact, there is no reference whatsoever to that crime in the grounds. Under such circumstances, it has to be said that the Detaining Authority was not even aware of at least did not bother to consider whether the detenu was in a judicial remand for a major offence under Sec.307. Had the Detaining Authority law aware of the such fact, it had to be reflected in the grounds there by the Detaining Authority should have shown that he had considered the fact of the concerned detenu being in judicial remand for a major offences under Sec.307, I.P.C. and that fact would have certainly affected his decision to order or not to order the preventive detention. According to us, the non-reflection of this in the grounds is fatal and suggests non-application of mind. 6. Further, there is absolutely no reflection in the grounds that there was a possibility of the detenu being released on bail. All that the Detaining Authority has said in paragraph 10 was that the Detaining Authority was aware that if released on bail that the detenu would indulge in such further activities. This does not suggest the possibility on the part of the detenu to be released on bail. This becomes all the more clear because of total exclusion of the mention regarding the arrest of the detenu for the major offence under Sec.307, I.P.C. as compared to the other offences mentioned in the detention order. 7. We are, therefore, of the clear opinion that this is a case of non-application of mind and, therefore, the order must be vitiated on that account. We accordingly set aside the detention order and order the immediate release of the detenu, unless he is required in any other offence. The habeas corpus petition is allowed in the above terms.