Rekha Vs. State of
Tamil Nadu Tr.Sec.To Govt. & ANR
Heard learned counsel
for the parties.
This Appeal has come up
in a reference made by a two Judge Bench of this Court by order dated
15.03.2011. The detenu in this Appeal Ramakrishnan (whose wife Rekha has filed this
Appeal) has been detained by a detention order dated 08.04.2010 passed under
the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders,
Forest Offenders, Goondas, Immoral Traffic :1:Offenders, Sand Offenders, and Slum
Grabbers and Video Pirates Act, 1982, on the allegation that he was selling
expired drugs after tampering with the labels and printing fresh labels showing
them as non-expired drugs.
The habeas corpus
petition filed by the wife of the detenu before the Madras High Court
challenging the said detention order has been dismissed by the impugned order dated
23.12.2010. Hence this Appeal. Several grounds have been raised before us, but,
in our opinion, this Appeal is liable to succeed on one ground itself, and hence
we are not going into the other grounds. The detention order reads as under :- "No.
199/2010 Dated 08.04.2010 DETENTION ORDER Whereas I, T. Rajendran, IPS., Commissioner
of Police, Chennai Police, is satisfied that the person known as Tr. Ramakrishnan,
male aged 35, S/O Devaraj, No. 82-B, South Mada Veethi, Villivakkam, Chennai-49
is a Drug Offender as contemplated under Section 2(e) of the Tamil Nadu Act 14
of 1982 and that with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order, it is necessary to make the
following order. Now therefore in exercise of the powers conferred on me by sub-section
(1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of
Bootleggers,
Drug-offenders,
Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, and Slum Grabbers
and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) read with orders issued
by the Government in G.O. (D) No. 6, Home, Prohibition and Excise (XVI) Department
dated 18th January, 2010 under sub- section (2) of Section 3 of the said Act, I
hereby direct that the said Drug Offender Tr. :2: Ramakrishnan, S/o Devaraj, be
detained and kept in custody at the Central Prison, Puzhal, Chennai. Given
under my hand and seal of this office the 8th day of April, 2010."
The relevant part of the
grounds on which the said detention order has been made is as follows :- "Thiru.
Elango, M. Pharm, male aged 43, S/O Ramasamy is working as a Drug Inspector, Drug
Control Department, Perambur Range, Zone-II, D.M.S. Complex, Teynampet, Chennai-18.
On 15.03.2010, Thiru. Elango appeared before the Inspector of Police, Crimes P-6
Kodungaiyur Police Station and lodged a complaint against Thiruvalargal, Prabhakar
@ Ravi, 2) Venkatesan, 3) Sanjay Kumar, 4) Sekar, 5) Baskar, 6) Pradeep Kumar
Chordia and 7) Meenakshi Sundaram. In his complaint, he has stated that expired
drugs collected from the medical shops of Chennai city and Suburban used to be
dumped at dump yard of Corporation ground at Ezhil Nagar, Kodungaiyur, Chennai.
On 15.3.2010,
Thiru, Elango
received a secret information that expired drugs dumped at the dump yard at Corporation
ground, Ezhil Nagar, Kodungaiyur, Chennai, were taken by Thiru. Prabhakar @
Ravi residing at the first floor of No. A-6/541, 151st Street, Muthamizh Nagar,
Kodungaiyur, Chennai and by keeping the same with his associates tampered the same
tampering the original labels and printing fresh labels to make it appear as
though they are not expired drugs and redistribute the same for sale to the
general public." :3:In para 4 of the grounds of detention, it is stated :-
"4. I am aware that Thiru. Ramakrishnan, is in remand in P.6, Kodungaiyur Police
Station Crime No. 132/2010 and he has not moved any bail application so far.
The sponsoring authority
has stated that the relatives of Thiru. Ramakrishnan are taking action to take him
on bail in the above case by filing bail applications before the Higher courts since
in similar cases bails were granted by the Courts after a lapse of time. Hence,
there is real possibility of his coming out on bail in the above case by filing
a bail application before the higher courts. If he comes out on bail he will indulge
in further activities, which will be prejudicial to the maintenance of public health
and order.
Further the recourse to
normal criminal law would not have the desired effect of effectively preventing
him from indulging in such activities, which are prejudicial to the maintenance
of public health and order. On the materials placed before me, I am fully satisfied
that the said Thiru. Ramakrishnan is also a Drug Offender and that there is a
compelling necessity to detain him in order to prevent him from indulging in such
further activities in future which are prejudicial to the maintenance of public
order under the provisions of Tamil Nadu Act 14 of 1982."
A perusal of the above
statement in para 4 of the grounds of detention shows that no details have been
given about the alleged similar cases in which bail was allegedly granted by the
concerned court. Neither the date of the alleged bail orders has been mentioned
therein, nor the bail application number, nor whether the bail orders were
passed in respect of the co-accused on the same case, nor whether :4: the bail orders
were passed in respect of other co-accused in cases on the same footing as the case
of the accused. All that has been stated in the grounds of detention is that "in
similar cases bails were granted by the courts". In our opinion, in the
absence of details this statement is mere ipse dixit, and cannot be relied
upon. In our opinion, this itself is sufficient to vitiate the detention order.
It has been held in T.V.
Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi Vs. State through
Secretary and Anr., (2006) 2 SCC 664; A. Shanthi (Smt.) Vs. Govt. of T.N. and
Ors., (2006) 9 SCC 711; Rajesh Gulati Vs. Govt. of NCT of Delhi and Anr. (2002)
7 SCC 129, etc. that if no bail application was pending and the detenue was
already, in fact, in jail in a criminal case, the detention order under the preventive
detention law is illegal. These decisions appear to have followed the
Constitution Bench decision in Haradhan Saha Vs. State of West Bengal, (1975) 3
SCC 198, wherein it has been observed (vide para 34):
"Where the concerned
person is actually in jail custody at the time when an order of detention is passed
against him and is not likely to be released for a fair length of time, it may be
possible to contend that there could be no satisfaction on the part of the detaining
authority as to the likelihood of such a person indulging in activities which would
jeopardise the security of the State or public order." :5: On the other hand,
Mr. Altaf Ahmed, learned senior counsel appearing for the State of Tamil Nadu,
has relied on the judgments of this Court in A. Geetha Vs. State of T.N. And Anr.
(2006) 7 SCC 603; and Ibrahim Nazeer Vs. State of T.N. and Anr., (2006) 6 SCC 64,
wherein it has been held that even if no bail application of the petitioner is
pending but if in similar cases bail has been granted, then this is a good ground
for the subjective satisfaction of the detaining authority to pass the
detention order.
In our opinion, if details
are given by the respondent authority about the alleged bail orders in similar
cases mentioning the date of the orders, the bail application number, whether the
bail order was passed in respect of co-accused in the same case, and whether the
case of the co-accused was on the same footing as the case of the petitioner,
then, of course, it could be argued that there is likelihood of the accused
being released on bail, because it is the normal practice of most courts that
if a co-accused has been granted bail and his case is on the same footing as
that of the petitioner, then the petitioner is ordinarily granted bail. However,
the respondent authority should have given details about the alleged bail order
in similar cases, which has not been done in the present case.
A mere ipse dixit
statement in the grounds :6:of detention cannot sustain the detention order and
has to be ignored. In our opinion, the detention order in question only contains
ipse dixit regarding the alleged imminent possibility of the accused coming out
on bail and there was no reliable material to this effect. Hence, the detention
order in question cannot be sustained. Moreover, even if a bail application of the
petitioner relating to the same case was pending in a criminal case the detention
order can still be challenged on various grounds e.g. that the act in question
related to law and order and not public order, that there was no relevant
material on which the detention order was passed, that there was mala fides,
that the order was not passed by a competent authority, that the condition precedent
for exercise of the power did not exist, that the subjective satisfaction was
irrational, that there was non-application of mind, that the grounds are vague,
indefinite, irrelevant, extraneous, non-existent or stale, that there was delay
in passing the detention order or delay in executing it or delay in deciding
the representation of the detenu, that the order was not approved by the
government, that there was failure to refer the case to the Advisory Board or
that the reference was belated, etc. :
In our opinion, Article
22(3)(b) of the Constitution of India which permits preventive detention is only
an exception to Article 21 of the Constitution. An exception is an exception, and
cannot ordinarily nullify the full force of the main rule, which is the right
to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting
the civil liberties of the people, and not to put them in jail for a long period
without recourse to a lawyer and without a trial. As observed in R Vs. Secy. Of
State for the Home Dept., Ex Parte Stafford, (1998) 1 WLR 503 (CA) :- "The
imposition of what is in effect a substantial term of imprisonment by the
exercise of executive discretion, without trial, lies uneasily with ordinary concepts
of the rule of law." Article 22, hence, cannot be read in isolation but
must be read as an exception to Article 21. An exception can apply only in rare
and exceptional cases, and it cannot override the main rule. Article 21 is the most
important of the fundamental rights guaranteed by the Constitution of India.
Liberty of a citizen
is a most important right won by our forefathers after long, historical,
arduous struggles. Our Founding Fathers realised its value because they had seen
:8:during the freedom struggle civil liberties of our countrymen being trampled
upon by foreigners, and that is why they were determined that the right to individual
liberty would be placed on the highest pedestal along with the right to life as
the basic right of the people of India. Right to liberty guaranteed by Article
21 implies that before a person is imprisoned a trial must ordinarily be held giving
him full opportunity of hearing, and that too through a lawyer, because a
layman would not be able to properly defend himself except through a lawyer.
The importance of a
lawyer to enable a person to properly defend himself has been elaborately explained
by this Court in A.S. Mohd. Rafi Vs. State of Tamilnadu, AIR 2011 SC 308, and in
Md. Sukur Ali Vs. State of Assam, JT 2011 (2) SC 527. As observed by Mr Justice
Sutherland of the U.S. Supreme Court in Powell Vs. Alabama, 287 U.S. 45 (1932) "Even
the intelligent and educated layman has small and sometimes no skill in the science
of law", and hence, without a lawyer he may be convicted though he is
innocent. Article 22(1) of the Constitution makes it a fundamental right of a person
detained to consult and be defended by a lawyer of his choice. But Article 22(3)
specifically excludes the applicability of clause (1) of :9:Article 22 to cases
of preventive detention.
Therefore, we must confine
the power of preventive detention to very narrow limits, otherwise the great
right to liberty won by our Founding Fathers, who were also freedom fighters,
after long, arduous, historical struggles, will become nugatory. In State of of
Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 (para 23)
this Court observed : "...Personal liberty is a precious right. So did the
Founding Fathers believe because, while their first object was to give unto the
people a Constitution whereby a government was established, their second object,
equally important, was to protect the people against the government. That is why,
while conferring extensive powers on the government like the power to declare
an emergency, the power to suspend the enforcement of fundamental rights or the
power to issue ordinances, they assured to the people a Bill of Rights by Part
III of the Constitution, protecting against executive and legislative despotism
those human rights which they regarded as fundamental.
The imperative necessity
to protect these rights is a lesson taught by all history and all human experience.
Our Constitution makers had lived through bitter years and seen an alien
Government trample upon human rights which the country had fought hard to preserve.
They believed like Jefferson that "an elective despotism was not the Government
we fought for". And, therefore, while arming the Government with large powers
to prevent anarchy from within and conquest from without, they took care to
ensure that those powers were not abused to mutilate the liberties of the people.
(vide A.K. Roy Vs. Union of India (1982) 1 SCC 271, and Attorney General for India
Vs. Amratlal Prajivandas, (1994) 5 SCC 54." [emphasis supplied] :10: In the
Constitution Bench decision of this Court in M. Nagaraj & Ors. Vs. Union of
India & Ors. (2006) 8 SCC 212, (para 20) this Court observed :
"It is a fallacy
to regard fundamental rights as a gift from the State to its citizens. Individuals
possess basic human rights independently of any Constitution by reason of the
basic fact that they are members of the human race." In the 9 Judge Constitution
Bench decision of this Court in I.R. Coelho (dead) By LRs. Vs. State of T.N.,
(2007) 2 SCC 1 (vide paragraphs 109 and 49), this Court observed : "It is necessary
to always bear in mind that fundamental rights have been considered to be the heart
and soul of the Constitution.....Fundamental rights occupy a unique place in the
lives of civilized societies and have been described in judgments as "transcendental",
"inalienable", and primordial". In our opinion, Article 22(3)(b)
cannot be read in isolation, but must be read along with Articles 19 and 21,
vide Constitution Bench decision of this Court in A.K. Roy Vs. Union of India (1982)
1 SCC 271 (para 70). It is all very well to say that preventive detention is preventive
not punitive.
The truth of the
matter, though, is :11:that in substance a detention order of one year (or any
other period) is a punishment of one year's imprisonment. What difference is it
to the detenu whether his imprisonment is called preventive or punitive? Mr. Altaf
Ahmed, learned senior counsel for the respondents, submitted that there are very
serious allegations against the detenu of selling expired drugs after removing the
original labels and printing fresh labels to make them appear as though they
are not expired drugs. In this connection, criminal cases are already going on
against the detenu under various provisions of the Indian Penal Code as well as
under the Drugs and Cosmetics Act, 1940 and if he is found guilty, he will be convicted
and given appropriate sentence.
In our opinion, the ordinary
law of the land was sufficient to deal with this situation, and hence, recourse
to the preventive detention law was illegal. Mr. Altaf Ahmed, learned senior counsel,
further submitted that the impugned detention order was passed on 08.04.2010, and
the bail application of the detenu was also dismissed on the same date. Hence, he
submitted that it cannot be said that no bail application was pending when the
detention order in question was passed. :12: In this connection, it may be
noted that there is nothing on the record to indicate whether the detaining
authority was aware of the fact that the bail application of the accused was
pending on the date when the detention order was passed on 08.04.2010.
On the other hand, in
para 4 of the grounds of detention it is mentioned that "Thiru.
Ramakrishnan is in remand in crime No. 132/2010 and he has not moved any bail
application so far". Thus, the detaining authority was not even aware whether
a bail application of the accused was pending when he passed the detention
order, rather the detaining authority passed the detention order under the
impression that no bail application of the accused was pending but in similar
cases bail had been granted by the courts. We have already stated above that no
details of the alleged similar cases has been given. Hence, the detention order
in question cannot be sustained.
It was held in Union of
India Vs. Paul Manickam and another, (2003) 8 SCC 342, that if the detaining
authority is aware of the fact that the detenu is in custody and the detaining authority
is reasonably satisfied with cogent material that there is likelihood of his
release and in view of his antecedent activities he must be detained to prevent
him from indulging in such prejudicial activities, the detention order can
validly be made. :
In our opinion, there
is a real possibility of release of a person on bail who is already in custody
provided he has moved a bail application which is pending. It follows logically
that if no bail application is pending, then there is no likelihood of the person
in custody being released on bail, and hence the detention order will be
illegal. However, there can be an exception to this rule, that is, where a co-accused
whose case stands on the same footing had been granted bail. In such cases, the
detaining authority can reasonably conclude that there is likelihood of the detenu
being released on bail even though no bail application of his is pending, since
most courts normally grant bail on this ground.
However, details of
such alleged similar cases must be given, otherwise the bald statement of the
authority cannot be believed. Mr. Altaf Ahmed, learned senior counsel, further
submitted that we are taking an over technical view of the matter, and we should
not interfere with the preventive detention orders passed in cases where serious
crimes have been committed. We do not agree. Prevention detention is, by nature,
repugnant to democratic ideas and an anathema to the rule of law. No such law exists
in the USA and in England (except during war time). Since, however, Article
22(3)(b) of the Constitution :14:of India permits preventive detention, we cannot
hold it illegal but we must confine the power of preventive detention within
very narrow limits, otherwise we will be taking away the great right to liberty
guaranteed by Article 21 of the Constitution of India which was won after long,
arduous, historic struggles.
It follows, therefore,
that if the ordinary law of the land (Indian Penal Code and other penal
statutes) can deal with a situation, recourse to a preventive detention law
will be illegal Whenever an order under a preventive detention law is challenged
one of the questions the court must ask in deciding its legality is : Was the
ordinary law of the land sufficient to deal with the situation ? If the answer
is in the affirmative, the detention order will be illegal. In the present case,
the charge against the detenu was of selling expired drugs after changing their
labels. Surely the relevant provisions in the Indian Penal Code and the Drugs
and Cosmetics Act were sufficient to deal with this situation.
Hence, in our opinion,
for this reason also the detention order in question was illegal. In this
connection, it may be noted that it is true that the decision of the 2 Judge
Bench of this Court in Biram Chand Vs. State of Uttar Pradesh & Anr, (1974)
4 SCC 573, was overruled by the Constitution Bench decision in Haradhan Saha's
case (supra) (vide para 34). However, we should carefully analyse these
decisions to correctly understand the legal position. In Biram Chand's case
(supra) this Court held that the authorities cannot take recourse to criminal
proceedings as well as pass a preventive detention order on the same facts
(vide para 15 of the said decision).
It is this view which
was reversed by the Constitution Bench decision in Haradhan Saha's case
(supra). This does not mean that the Constitution Bench laid down that in all
cases the authorities can take recourse to both criminal proceedings as well as
a preventive detention order even though in the view of the Court the former is
sufficient to deal with the situation. This point which we are emphasizing is
of extreme importance, but seems to have been overlooked in the decisions of
this Court. No doubt it has been held in the Constitution Bench decision in Haradhan
Saha's case (supra) that even if a person is liable to be tried in a criminal court
for commission of a criminal offence, or is actually being so tried, that does not
debar the authorities from passing a detention order under a preventive detention
law.
This observation, to be
understood correctly, must, however, be construed in the background of the
constitutional scheme in :16:Articles 21 and 22 of the Constitution (which we
have already explained). Articles 22(3)(b) is only an exception to Article 21
and it is not itself a fundamental right. It is Article 21 which is central to the
whole chapter on fundamental rights in our Constitution. The right to liberty
means that before sending a person to prison a trial must ordinarily be held giving
him opportunity of placing his defence through his lawyer.
It follows that if a
person is liable to be tried, or is actually being tried, for a criminal
offence, but the ordinary criminal law (Indian Penal Code or other penal
statutes) will not be able to deal with the situation, then, and only then, can
the preventive detention law be taken recourse to. Hence, the observation in para
34 in Haradhan Saha's case (supra) cannot be regarded as an unqualified
statement that in every case where a person is liable to be tried, or is
actually being tried, for a crime in a criminal court a detention order can
also be passed under a preventive detention law.
It must be remembered
that in cases of preventive detention no offence is proved and the
justification of such detention is suspicion or reasonable probability, and
there is no conviction which can only be warranted by legal evidence. Preventive
detention is often described as a :17: 'jurisdiction of suspicion', (Vide State
of Maharashtra Vs. Bhaurao Punjabrao Gawande, (supra) - para 63).
The detaining
authority passes the order of detention on subjective satisfaction. Since
clause (3) of Article 22 specifically excludes the applicability of clauses (1)
and (2), the detenu is not entitled to a lawyer or the right to be produced
before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially
dangerous power the law of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards, however, technical, is,
in our opinion, mandatory and vital. It has been held that the history of
liberty is the history of procedural safeguards. (See : Kamleshkumar Ishwardas
Patel Vs. Union of India and others (1995) 4 SCC 51, vide para 49). These
procedural safeguards are required to be zealously watched and enforced by the
court and their rigour cannot be allowed to be diluted on the basis of the
nature of the alleged activities of the detenu. As observed in Rattan Singh Vs.
State of Punjab, (1981) 4 SCC 1981 :-
"May be that
the detenu is a smuggler whose tribe (and how their numbers increase!) deserves
no sympathy since its activities have paralysed the Indian economy. But the laws
of preventive detention afford only a modicum of safeguards to persons detained
under them, and if freedom and liberty are to have any meaning in our
democratic set-up, it is essential that at least those safeguards are not
denied to the detenus." As observed in Abdul Latif Abdul Wahab Sheikh Vs. B.K.
Jha and another (1987) 2 SCC 22, vide para 5, : "...The procedural requirements
are the only safeguards available to a detenu since the court is not expected to
go behind the subjective satisfaction of the detaining authority. The procedural
requirements are, therefore, to be strictly complied with if any value is to be
attached to the liberty of the subject and the constitutional rights guaranteed
to him in that regard...."
As observed by Mr.
Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee
Committee Vs. McGrath, 341 US 123 at 179, "It is procedure that spells
much of the difference between rule of law and rule of whim or caprice. Steadfast
adherence to strict procedural safeguards are the main assurances that there
will be equal justice under law." Procedural rights are not based on sentimental
concerns for the detenu. The procedural safeguards are not devised to coddle
criminals or provide technical loopholes through which dangerous persons escape
the consequences of their acts.
They are basically society's
assurances that the authorities will behave properly within rules distilled
from long centuries of concrete experiences. Personal liberty protected under
Article 21 is so sacrosanct and so high in the scale of constitutional values
that it is the obligation of the detaining authority to show that the impugned detention
meticulously accords with the procedure established by law. The stringency and
concern of judicial vigilance that is needed was aptly described in the following
words in Thomas Pacham Dale's case, (1881) 6 QBD 376, :
"Then comes the
question upon the habeas corpus. It is a general rule, which has always been
acted upon by the Courts of England, that if any person procures the
imprisonment of another he must take care to do so by steps, all of which are
entirely regular, and that if he fails to follow every step in the process with
extreme regularity the court will not allow the imprisonment to continue."
For the reasons given above, this Appeal is allowed, the impugned order is set
aside and the impugned detention order is quashed. However, we make it clear
that this will not affect the criminal cases pending against the alleged
accused. :
We further direct that
the concerned detenu in this Appeal shall be released forthwith if not required
in any other case.CRIMINAL APPEAL NO. 756 of 2011; CRIMINAL APPEAL NO. 757 of
2011; CRIMINAL APPEAL NO. 759 of 2011; CRIMINAL APPEAL NO. 760 of 2011; CRIMINAL
APPEAL NO. 762 of 2011; CRIMINAL APPEAL NO. 763 of 2011; CRIMINAL APPEAL NO.
764 of 2011 The Order passed in CRIMINAL APPEAL NO. 755 OF 2011 will also
govern these Appeals. Accordingly, for the reasons given in the Order passed in
CRIMINAL APPEAL NO. 755 OF 2011, these Appeals are allowed, the impugned common
order is set aside and the impugned detention orders are quashed. However, we
make it clear that this will not affect the criminal cases pending against the
alleged accused persons. We further direct that the concerned detenus in these Appeals
shall be released forthwith if not required in any other case.
........................J.
(MARKANDEY KATJU)
.........................J.
(SURINDER SINGH NIJJAR)
.........................J.
(GYAN SUDHA MISRA)
NEW
DELHI;
APRIL
05, 2011
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