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2004 DIGILAW 447 (MAD)

Lingam v. State of Tamil Nadu & Another

2004-03-16

P.SATHASIVAM, S.R.SINGHARAVELU

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Judgment :- P. Sathasivam, J. One Lingam, Srilankan Tamilian has filed HCP.No.158 of 2004, seeking to issue a writ of Habeas corpus with regard to the detention order passed under the provisions of Foreigners Act, 1946 in G.O.No.SR.III.3344-18/94 dated 24.05.1995 by the first respondent and quash the same as well as to issue a direction to the respondents to set him at liberty, who is now lodged at Special Camp for Srilankans at Chengalpattu. Another Srilankan citizen by name Vasanthan @ Vasanthakumar has prayed for a similar relief in HCP.No.161 of 2004. 2. In the affidavit filed in support of the petition in HCP.No.158 of 2004, the petitioner has stated that due to ethnic problem in Srilanka, he came to India with his family in the year 1990 and registered his name before the Collector, Thanjavur as a Srilanka refugee. On 01.06.1991, he was apprehended by the C.B.I. Police at Vedaranyam in connection with Rajiv Gandhi murder case and he was kept in Vedaranyam Police Station. On 10.06.1991, he was taken to Malligai Illam (then CBI Office) and was kept in the illegal custody till 14.08.1991. Thereafter, i.e., on 14.08.1991, he was detained under Section 3 (2) (e) of the Foreigners Act and lodged in the Special Refugee Camp at Saidapet, Chennai. Though he was cited as a witness in the Rajiv Gandhi murder case, he was not examined as witness before any of the Courts. He was under continuous detention without any opportunity, preferred an application to the first respondent to permit him to go to Srilanka or any other Country of his choice. He filed HCP.No.657 of 1995 before this Court and by order dated 08.08.1995, after recording the statement made by the learned Public Prosecutor, namely, he would be permitted to leave this Country for Srilanka at his own costs, this Court disposed of the said HCP., as infructuous. On 18.09.1999, the first respondent passed an order permitting the second respondent to question the inmates of the special refugee camps and record the statements of suspects, who had information / knowledge of the murder of Rajiv Gandhi. The petitioner is neither an accused nor a witness in the Rajiv Gandhi murder case. He was enquired by the second respondent on many occasions. No order was passed by the second respondent, after enquiry. He made several representations to the first respondent seeking permission to go abroad. The petitioner is neither an accused nor a witness in the Rajiv Gandhi murder case. He was enquired by the second respondent on many occasions. No order was passed by the second respondent, after enquiry. He made several representations to the first respondent seeking permission to go abroad. In the absence of any favourable order, having no other remedy, the petitioner filed the present petition. Similar averments have been made by the other petitioner in HCP.No.161 of 2004. 3. Mr. S. Doraisamy, learned counsel appearing for the petitioners by drawing our attention to Memorandum of Action Taken on the Final Report of Jain Commission of Inquiry would contend that in the absence of any specific reference to the petitioners and in the absence of any material, the respondents are not justified in keeping the petitioners in the illegal custody from 1991. 4. On the other hand, the learned Additional Public Prosecutor appearing for the first respondent as well as learned Special Public Prosecutor appearing for the CBI - second respondent would submit that both the petitioners were detained under Section 3 (2) (e) of the Foreigners Act and inasmuch as both of them are suspects based on the Jain Commission's report and in view of the fact that the investigation is still going on, their presence is required in this Country; accordingly, they prayed for dismissal of the above petitions. 5. We have carefully considered the rival contentions. 6. It is true that a perusal of Memorandum of Action Taken on the Final Report of Jain Commission of Inquiry shows that there is no specific reference to the petitioners. However, the learned counsel appearing for the second respondent vehemently submits that both the petitioners, namely Lingam and Vasanthan @ Vasanthakumar, who are inmates of Special Refugee Camp, Chengalpattu have been named as suspects in the Final Report of Jain Commission inquiry and they were the subject matter of their (CBI) investigation in RC 9(S)/91 - Shri Rajiv Gandhi assassination case. He also submits that Letter of Rogatory has been sent to Sri Lanka and the reply to the same is awaited. According to him, as the case is in progress, the persons above named are still required by Multi Disciplinary Monitoring Agency (in short M.D.M.A). He also submits that Letter of Rogatory has been sent to Sri Lanka and the reply to the same is awaited. According to him, as the case is in progress, the persons above named are still required by Multi Disciplinary Monitoring Agency (in short M.D.M.A). In support of his contentions, the learned counsel appearing for C.B.I has also produced a Xerox copy of the letter dated 12.03.2004 from C.B.I. Chennai 28 addressed to the Additional Secretary, Public (SC) Department, Fort St. George, Secretariat, Chennai 600 009. 7. After perusing the above referred letter and the submission of the learned counsel for the respondents, we cannot lightly reject their contentions. No doubt, the learned counsel for the petitioners very much relied on the order passed by a learned single Judge of this Court dated 12.11.2003 in W.P.No.7021 of 2003. The said writ petition was filed by one Vijayaraja @ Gunaraja. No doubt, after hearing both sides, though the petitioner therein was also a Srilankan citizen, the learned single Judge set aside the impugned order therein dated 18.02.2003 and directed the first respondent therein to issue necessary permission to him to go abroad. With reference to the said order, the learned counsel appearing for CBI contends that the petitioner therein was not named as suspect in the Jain Commission's report. According to him the said decision is not applicable to the cases on hand. 8. The learned Additional Public Prosecutor has also brought to our notice a Division Bench decision of this Court in the case of Vallikan vs. State reported in 1995 -2- Law Weekly (Crl.) 690 (2) and very much pressed into service, the following conclusion of the Division Bench. "24. There is no absolute prohibition to move from one place to another. The orders say that the inmates shall not leave the camp except with permission of the District Collector. In other words, they can move on grant of permission. The dimensions of freedom to move throughout the territory of India available for a citizen, is not the same for a foreigner. Having regard to the particular explosive situation prevalent in the country, it is only reasonable that restrictions of this sort are sought to be imposed. Such imposition can never be stated to be arbitrary or capricious exercise of power, violating the mandate of Articles 14 and 21 of the Constitution. Having regard to the particular explosive situation prevalent in the country, it is only reasonable that restrictions of this sort are sought to be imposed. Such imposition can never be stated to be arbitrary or capricious exercise of power, violating the mandate of Articles 14 and 21 of the Constitution. As already stated, there is a fallacy in the argument that the orders become bad in the absence of fixation of definite period of stay in the special refugee camps, for each order is not one of detention but only one of reasonable restriction. " 9. It is true that the petitioners, who came to India in 1991 though were permitted to leave in 1995, at the instance of the State Government, unfortunately, both of them were not allowed to leave this Country for one reason or the other. The fact remains, the petitioners have not moved this Court on earlier occasion by way of a petition for the issue of a writ of Habeas Corpus or any other writ; only in the month of February, 2004, the petitioners have approached this Court for necessary directions. As observed earlier, in the light of the specific contention by the counsel for the respondents that both the petitioners have been named as suspects in the Final Report of the Jain Commission Inquiry and their presence is required for further investigation as well as awaiting reply to the Letter of Rogatory sent to Srilankan Government, we are of the view that some more reasonable time may be given to the respondents. It is made clear that if no effective steps have been taken and investigation is completed with follow up action within a period of six months from today, the petitioners are at liberty to approach this Court for necessary direction. With the above observation, both the petitions are dismissed.