(Order of the Court was made by R.SUBBIAH, J.) The petitioner is the detenu, by name Mr.Muthukumar @ Vellaian, aged about 24 years. The detenu has been detained, as per the order of the second respondent, dated 01.07.2016, under Section 2(f) of the Tamilnadu Act 14 of 1982, branding him as ?Goonda?. Challenging the same, the petitioner has come up with this Habeas Corpus Petition.
2.We have heard the learned counsel for the petitioner and the learned State Public Prosecutor appearing for the respondents. We have also perused the records carefully.
3.The main submission of the learned counsel for the petitioner is that the affidavit filed by the sponsoring authority was attested by the detaining authority himself prior to the date of passing the detention order. In this regard, drawing the attention of this Court to the affidavit submitted by the sponsoring authority to the detaining authority, the learned counsel for the petitioner demonstrated that the detaining authority attested the affidavit filed by the sponsoring authority on 30.06.2016 and passed the detention order on 01.07.2016. The learned counsel for the petitioner further submitted that the attestation made by the detaining authority in the affidavit filed by the sponsoring authority would show the predetermination of mind on the part of the detaining authority in passing the order of detention. Hence, the detention order is liable to be set aside. In support of his contention, he relied upon an unreported decision of a Division Bench of this Court in H.C.P.(MD).Nos.556 of 2016, etc. batch, dated 11.08.2016, wherein in paragraph Nos.32 to 43, this Court has held as follows;
"32. The sponsoring authority in these five cases submitted separate applications to the Commissioner of Police, Madurai City, to detain the concerned detenus under the Tamil Nadu Act 14 of 1982. The Commissioner, while attesting the affidavits of the sponsoring authority, made an endorsement that the deponent solemnly affirmed before him on the date indicated in the affidavit and signed in his presence. The seal of the Commissioner, Madurai City is found affixed in the affidavits sworn to by the sponsoring authority.
33. The very same Commissioner, thereafter, passed the order of detention on different dates. The detention order in H.C.P.(MD)No.556 of 2016 was passed on 21 April, 2016. The detention order in H.C.P.(MD)No.557 of 2016 was passed on 18 April, 2016. The detention order in H.C.P.(MD)No.558 of 2016 was passed on 18 April, 2016. The detention order in H.C.P.(MD)No.687 of 2016 was passed on 18 May, 2016. Similarly, the detention order in H.C.P.(MD)No.688 of 2016 was passed on 11 May, 2016.
34. The affidavit of the sponsoring authority in H.C.P.(MD)No.556 of 2016 is dated 20 April, 2016. Based on the said affidavit, duly attested by the Commissioner of Police, the very same Commissioner of Police, Madurai, in his capacity as the Detaining Authority passed the order of detention on 21 April, 2016, which is challenged in H.C.P.(MD)No.556 of 2016.
35. The sponsoring authority is at liberty to make a request to the Detaining Authority to detain the accused. Mere affidavit is not sufficient. The sponsoring authority must produce materials before the Detaining Authority to show that the detenu is acting in a manner prejudicial to the maintenance of public order and as such, he should be detained under the provisions of Tamil Nadu Act 14 of 1982. Here, in this case, the authority empowered to detain, himself acted as the complainant by attesting the affidavit of the sponsoring authority.
NATURE OF JURISDICTION:
36. The Tamil Nadu Act 14 of 1982 was enacted to prevent dangerous activities prejudicial to the maintenance of public order. The Act empowers the State Government, District Magistrate and Commissioner of Police, to deny or deprive the citizen of his liberty without resorting to enquiry or trial. It is only because of the nature of jurisdiction conferred under Tamil Nadu Act 14 of 1982, the power is given to the State Government and few superior officers.
37. The detention by invoking the provisions of Act 14 of 1982 is not in the nature of punishment. It is essentially to prevent the detenu from undertaking activities prejudicial to public order.
38. The Commissioner of Police was designated as the authority to detain a person under Act 14 of 1982. He is, therefore, empowered to deprive the detenu of his freedom and personal liberty for a particular period. The Detaining Authority, therefore, must be satisfied that there are sufficient grounds justifying preventive action against the person concerned. He should analyze the materials produced before him by the sponsoring authority and must arrive at a subjective satisfaction that in case the detenu is not detained, he would indulge in activities prejudicial to the maintenance of public order.
39. The Commissioner of Police was expected to consider the materials independently and in an unbiased manner without the intervention of the sponsoring authority. He is exercising a statutory function conferred on him by the statute. He is not acting as a police officer, but as an authority empowered to detain a person under Act 14 of 1982. Since the Commissioner of Police is the statutory authority to detain those who are likely to engage in acts prejudicial to maintenance of public order, he is not expected to take part in any of the preparatory works for detention. The Commissioner of Police should not be seen as a complainant or privy to the decision to make a request to detain a person. If it is demonstrated that the Commissioner of Police himself made the ground work to detain a person, and thereafter, passed the order of detention, such orders are liable to be quashed on the ground of pre-determination.
40.The Act mandates that the Commissioner of Police must arrive at a satisfaction on the basis of materials placed before him. In case the materials were collected by him, or he actively took part either to make out the grounds to detain a person or to make a request to detain a person through the sponsoring authority, it would be clear that he acted with a pre- conceived notion to set the scores.
41. The Detaining Authority should act independently and with an open mind. He should not prejudge the issue even before considering the materials produced before him by the sponsoring authority.
42. In the subject cases, it is clear that the Commissioner of Police actively took part in the process of sponsoring the case of the detenus for detention. The affidavits of the sponsoring officers were attested by the Commissioner of Police by sitting in the arm-chair of the Detaining Authority. He was, therefore, in the know of things, even before the commencement of statutory proceedings for detention. In short, the Commissioner of Police himself was part of the team of complainants otherwise called as sponsoring authorities. Thereafter, he turned the chair and acted in a different capacity as the Detaining Authority. The sponsoring authority and Detaining Authority are practically one and the same in all these matters.
43. The active participation of the Detaining Authority in the process of sponsoring the name of the detenus for detention would go to the root of the matter and, therefore, is sufficient to set aside the orders of detention on the ground of pre-determination. We are, therefore, of the view that the detention orders are unsustainable in law."
Following the same order, this Court has also passed several orders. Thus, he prayed to set aside the detention order.
4.Per contra, the learned State Public Prosecutor appearing for the respondents submitted that mere signing by the detaining authority in the affidavit filed by the sponsoring authority would not amount to predetermination of mind in passing the order of detention, as the affidavit filed by the sponsoring authority is only a covering letter for the materials furnished to the detaining authority and it would contain only the list of materials placed before the detaining authority. Further, the detaining authority is not passing orders based on the said affidavit filed by the sponsoring authority. In support of his contention, he relied upon a decision of the Hon'ble Supreme Court in S.Gayathiri Vs. the Commissioner of Police, Madras and others reported in AIR 1981 SC 1672, wherein the Hon'ble Supreme Court has held in paragraph No.4 as follows:
"4.Yet another submission made on behalf of the detenu was that a copy of the affidavit of Somasundaram, Inspector of Police, Prohibition Enforcement Wing, which was mentioned in the order of detention as having been perused by the detaining authority was not supplied to the detenu. This affidavit we find was in the nature of a mere forwarding letter and not the basis of any of the grounds of detention. There was, therefore, no need to supply the detenu with a copy of the affidavit. The appeal is dismissed."
He has also relied upon yet another decision of a Division Bench of this Court in Ravi and others Vs. the Government of Tamil Nadu and others, reported in CDJ 1993 MHC 024, wherein in paragraph Nos.9 to 11 this Court has held as follows;
"9. As regards the affidavit, the learned Additional Public Prosecutor placed reliance on a Division Bench judgment of this Court in W.P. No. 1201 of 1983 (P. Mohammed Ismail v. The State of Tamil Nadu - order dated 30-3- 1983), to contend that affidavit is to be construed only as a letter of the Sponsoring Authority sent as an enclosure to the documents; and that therefore, the non-supply of that affidavit is not fatal. He also submitted by placing reliance on the decision of this Court in W.P. Nos. 7092 and 7093 of 1991 (referred to supra), that it is not necessary to supply all the documents to the detenu except those on which the Detaining Authority placed reliance, to sustain the grounds of detention. Let us now see whether these two judgments help the respondents.
10. It is true, in W.P. 1201/83 (supra), S. Natarajan, J., as he then was, presiding over the Bench, has opined on the nature of an affidavit of the Sponsoring Authority as follows :-
".......... we have been taking the view that generally an affidavit filed by a police officer before the detaining authority to take action under the provisions of the Act for detaining illicit distillers, goodas, etc. can only constitute a covering letter for the materials sent to the detaining authority for consideration and for deciding the question whether an order of detention against the bootlegger or goonda should be passed or not."
The same Division Bench, after citing an earlier decision in W.P. No. 39 of 1983 (Thangathai v. State of Tamil Nadu - order dated 2-3-1983), held as follows :-
"........... affidavits filed by the Police Inspectors can only constitute covering letters and they cannot be termed as "materials" which would have influenced the mind of the detaining authority to pass an order of detention. It is needless to say that a detaining authority will pass an order of detention only on the basis of the materials placed before him and will not allow his mind to be influenced by what is set out by the Inspector of Police in an affidavit sent along with the materials against the bootlegger or goonda for being considered by the detaining authority ........"
It is clear from the later portion of the extract that the Division Bench was of the view that the affidavit was only a letter and that cannot be taken as a "material" placed before the Detaining Authority. If that be so, there is no material in these cases before the Detaining Authority to indicate that the individuals to be detained were on remand. There cannot be any two opinion on the necessity of application of mind on the question of compelling necessity to claim orders of detention by invoking Act 14 of 1982. The Supreme Court, in (supra), observed as follows (para 13) :-
"From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released, he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him from so doing. If the Authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court."
As per the above ratio laid down by the Supreme Court, in cases where the person was in custody, the Detaining Authority is expected to have reason to believe on the basis of reliable materials placed before him that there is a real possibility of the individual to be detained being released on bail, and that on being so released, he would, in all probability, indulge in prejudicial activity. Further, the Detaining Authority must feel that it is essential to detain him to prevent him from so doing. To satisfy the above test, there must be material. In this case, if the affidavit is not to be taken as a material as per the ratio in W.P. 1201/83 (supra), then there is no other material for the Detaining Authority to state that the individual to be detained was actually in custody and to apply his mind further, as held by the Supreme Court in the above decision . Further, if the affidavit is not to be treated as a material, then the non-supply of the same is of no consequence. On the other hand, if the affidavit is to be treated as a material, then that material which is the basis for the Detaining Authority to proceed further to find out whether there is compelling necessity to detain the individual notwithstanding the person being already in custody, cannot be considered as a document not relevant. In any view of the matter, the reliance placed on the Division Bench judgment in W.P. Nos. 7092 and 7093 of 1991 (referred to supra) that all documents need not be given is of no avail to the learned Additional Public Prosecutor.
11. The learned Additional Public Prosecutor also brought to our notice the view taken by the Supreme Court in Smt. Gayatri v. The Commissioner of Police, Madras, to the effect that the affidavit of the Sponsoring Authority is only in the nature of a letter and, therefore, a copy of the same need not be furnished to the detenu. We have already seen that a Division Bench of this Court, in W.P. 1201 of 1983 (referred to supra), has taken the same view, and the same Division Bench has held further that such an affidavit cannot be treated as a material placed before the Detaining Authority while arriving at subjective satisfaction. Therefore, no assistance can be derived by merely contending that the affidavit is only a letter and non-supply of the same will not vitiate the detention, particularly when the remand order or substance of the same had not been placed before the Detaining Authority."
5. It is yet another submission of the learned State Public Prosecutor that in the last paragraph of the affidavit, it has been mentioned as ?I therefore request that necessary action may be taken under the T.N. Act 14/1982, if deemed fit by the detaining authority.? Hence, the sponsoring authority does not say that the detention order is to be passed based on the affidavit of the sponsoring authority. In the absence of any positive request by the sponsoring authority, it cannot be said that the attestation of the affidavit by the detaining authority would amount to predetermination, because the detaining authority would independently consider the materials and thereafter, he will come to the conclusion as to whether the detention order should be passed or not. Therefore, on that ground also, the detention order is liable to be sustained.
6. Per contra, the learned counsel appearing for the petitioner replied that the judgments relied upon by the learned State Public Prosecutor deals about the effect of non furnishing of the affidavit and not about the attestation made by the detaining authority in the affidavit filed by the sponsoring authority. Therefore, the same cannot be made applicable to sustain the order passed by the detaining authority.
7. We have given our anxious consideration to the rival submissions made on either side and also perused the materials available on record. In view of the submission made on either side, the only question that arise for consideration is whether the attestation made by the detaining authority on the affidavit filed by the sponsoring authority would amount to predetermination?
8. According to the State Public Prosecutor, the affidavit itself is only a covering letter in the nature of mere forwarding letter containing the list of materials enclosed along with the affidavit and that the detaining authority is not determining the issue by relying on the same. In support of his contention, the learned State Public Prosecutor relied upon the decision of the Hon'ble Supreme Court in S.Gayathiri Vs. the Commissioner of Police, Madras and others reported in AIR 1981 SC 1672 and also a Division Bench of this Court in Ravi and others Vs. the Government of Tamil Nadu and others, reported in CDJ 1993 MHC 024. As rightly contended by the learned counsel for the petitioner, these judgments are only related to the effect of non supply of affidavit filed by the sponsoring authority. In fact, the Division Bench of this Court in Ravi's case, cited supra, after an elaborate discussion with regard to the submission made by the learned Additional Public Prosecutor that the affidavit is only a letter and non supply of the same will not vitiate the detention order, has ultimately rejected the same. For better appreciation, the paragraph No.11 of the said case is again reproduced hereunder:
"11. The learned Additional Public Prosecutor also brought to our notice the view taken by the Supreme Court in Smt. Gayatri v. The Commissioner of Police, Madras, to the effect that the affidavit of the Sponsoring Authority is only in the nature of a letter and, therefore, a copy of the same need not be furnished to the detenu. We have already seen that a Division Bench of this Court, in W.P. 1201 of 1983 (referred to supra), has taken the same view, and the same Division Bench has held further that such an affidavit cannot be treated as a material placed before the Detaining Authority while arriving at subjective satisfaction. Therefore, no assistance can be derived by merely contending that the affidavit is only a letter and non-supply of the same will not vitiate the detention, particularly when the remand order or substance of the same had not been placed before the Detaining Authority."
(emphasis supplied)
9.Before going into the issue involved in this case, this Court is of the view that it would be appropriate to extract the affidavit filed by the sponsoring authority:
"I, C.Sethumani Mathavan, aged 46/2016, S/o.Chinnasamy, Inspector of Police, Law and Order, B3 Teppakulam Police Station, Madurai City do hereby solemnly affirm and sincerely state as follows:-
2.I submit that I am the Inspector of Police, Law & Order, B3 Teppakulam Police Station, Madurai City and I have been entrusted with the work of prevention and detection of crimes, prosecution of criminals, who commit offences against human body by using force which adversely affect the public order and prosecution of persons who commit offences against properties.
3.During the course of my above-mentioned duties, I came to know about the activities of Thiru.Muthukumar @ Vellaian, male, aged 24/2016, S/o.Late.Meenatchisundaram, 31, Nadar Street, Nadutheru, Thiruppuvanam, Sivagangai District. He has come to adverse notice in the following case and necessary documents relating to the case are enclosed.
i.B3, Teppakulam P.S. C.no.803/2015, U/s.302 IpC @ 120(b), 147, 148, 341, 342, 302 & 201 IPC r/w 149 IPC.
4.Further, on 30.05.2016, he has come to adverse notice and acted in a manner prejudicial to the maintenance of public order. in this connection, a case in B3 Teppakulam P.S. Cr.No.569/2016 U/s.392 r/w 397 & 506(ii) IPC has been registered against him. (Necessary documents relating to the case are enclosed.)
5.I submit that Thiru.Muthukumar @ Vellaian, s/o.(late) Meenatchisundaram, wa arrested on 30.05.2016. Thereafter, he was produced before the JM No.I, Madurai and remanded to judicial custody at the Central Prison, Madurai. The remand period of Thiru.Muthukumar @ Vellaian s/o.(late) Meenatchisundaram has been extended upto 11.07.2016. The case is under investigation. (Necessary documents are enclosed).
6.I submit that bail application filed on behalf of Thiru.Muthukumar @ Vellaian in the above said ground case, before the JM.No.I, Madurai, in Crl.M.P.No.1624/2016 was dismissed on 02.06.2016. Another bail application filed in the above said the ground case before the Principal District and Sessions Judge, Madurai in Crl.M.P.No.2761 of 2016 is pending disposal. He has already obtained bail in the adverse case. (Necessary documents are enclosed).
7.I also submit that in the ground case, Manthiramoorthy and Palani Bharathi, (co-accused of Thiru.Muthukumar @ Vellaian) were granted bail by the Principal Sessions Judge, Madurai in Crl.M.P.No.2561/206 dated 13.06.2016. (Necessary documents are enclosed).
8.I, therefore, request that necessary action may be taken against him under the Tamil Nadu Act, 14 of 1982, if deemed fit by the detaining authority."
(C.Sethumani Mathavan) Inspector of Police, (Law & Order), B3,Teppakulam Police Station, Madurai City.
30.06.2016 Solemnly affirmed at Madurai this 30th day of June 2016 and signed his name in my presence.
Commissioner of Police, Madurai City."
10. On reading of the same, it is clear that in this case, the affidavit contains the brief details about the arrest and remand of the detenu along with details about the supporting documents. In the last paragraph of the affidavit, the detaining authority has made a request as follows; "I, therefore, request that necessary action may be taken against him under the Tamil Nadu Act 14 of 1982, if deemed fit by the detaining authority." According to the learned State Public Prosecutor, it is only a request by the sponsoring authority to the detaining authority to pass a order of detention, if he is satisfied with the materials placed before him and as such the request of the sponsoring authority can be not taken as a positive request. When that being the position, according to the learned State Public Prosecutor, no significance could be given to the attestation made by the detaining authority in the affidavit submitted by the sponsoring authority. But, in our considered opinion, though there is no positive request made by the sponsoring authority to pass a detention order in his affidavit, the detaining authority, who is a superior officer of the sponsoring authority, has made an attestation affirming the necessity insisted by the sponsoring authority. It is common knowledge that no one would attest or sign in the affidavit prepared by others without verifying the details related to the same. Thus, the detaining authority, before making attestation as higher officer to the sponsoring authority, definitely, would come to know about the necessity of the orders to be passed. Hence, the possibility of predetermination cannot be ruled out.
11.Of-course, it is true that the detaining authority is obligated to consider the materials placed before it independently and then to pass order on merits, without influencing the contents set out in the affidavit. However, the detaining authority cannot play a dual role, i.e., in one role he, being as a higher officer, affirms the necessity of the action to be taken and in another role, he, being the detaining authority, passes an order of detention. If the affidavit of the sponsoring authority is signed by some other higher official, then the question of possibility of predetermination would not arise. Since, in this case, the detaining authority played dual role, the contention of the learned counsel for the petitioner that the same led to predetermination of mind on the part of the detaining authority, is acceptable.
12. In the result, this Habeas Corpus Petition is allowed and the impugned detention order dated 01.07.2016 made in No.43/BCDFGISSSV/2016 by the second respondent is set aside and the detenu by name Muthukumar @ Vellaian, S/o.Late.Meenatchisundaram, aged about 24 years, is directed to be released forthwith, if his continued custody is not authorised in specific cases or by any other detention order.
To
1.The Secretary to Government, Home Prohibition and Excise Department Secretariat, Chennai ? 600 009.
2.The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai.
3.The Superintendent of Police, Madurai Central Prison, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.