Direction to stay in Special Camp does not amount to detention.

P.K. Misra, J.

This matter was referred to a larger Bench to resolve the conflict between the Division Bench decisions of this Court.

2. The conflicting decisions in question are 1995-2-L.W.(Crl.) 690(2) (KALAVATHY, ETC. v. STATE OF TAMIL NADU & OTHERS), hereinafter referred to as Kalavathys case, and 2003-1-L.W.(Crl.) 352 (YOGESWARI v. THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVT., PUBLIC (SC) DEPARTMENT, CHENNAI AND ANOTHER), hereinafter referred to as Yogeswaris case). In a later unreported decision of the Division Bench in HCP.No.1038 of 2003 (PREMAVATHY @ RAJATHI v. STATE OF TAMIL NADU) dated 111. 2003, the Division Bench without referring the matter to a larger Bench, followed Kalavathys case and observed that Yogeswaris case was not correctly decided as it had not noticed the fact that the ratio of Kalavathys case had received the imprimatur of the Supreme Court.

3. The contentions raised by the counsel for the petitioner and by Mr.B. Kumar, Senior Counsel, who has been appointed as Amicus Curiae, are to the following effect :-

.(1) The Special Camp established by the State Government was previously a Sub Jail at Chengelpat and even though it is now described as a Special Camp, in effect it amounts to a jail, which is guarded by armed policemen round the clock, inmates are locked up in cells between 6.00 P.M. and 6.00 A.M., and they cannot go out of the Special Camp during the day time, however, the relatives can visit them during the day time after obtaining permission from the Tahsildar. It is therefore submitted by the learned counsel appearing for the petitioner and the Senior Counsel appearing as Amicus Curaie that the order passed is in effect an order under Section 3(2)(g) rather than an order under Section 3(2)(e).

.(2) It is further submitted that a Division Bench of the Madras High Court in 2003-1-L.W. (Crl.) 352 (YOGESWARI v. THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVT., PUBLIC (SC) DEPARTMENT, CHENNAI AND ANOTHER) under similar circumstances held that such an order regarding confinement in the Special Camp would amount to order of preventive detention and can be passed only in accordance with the provisions contained in the National Security Act, 1980 and Section 3(2)(e) of the Foreigners Act will have no applicability to such a case.

4. Mr.R. Viduthalai, Advocate General, representing the State, on the other hand, submitted that the decision of the Division Bench reported in 2003-1-L.W.(Crl.) 352 (cited supra) can no longer be considered as operative in view of the subsequent Division Bench decision of this Court in HCP.Nos.1038 of 2003 & other connected matters disposed of on 111. 2003. It is further submitted by him that in the earlier Division Bench decision of the Madras High Court reported in 1995-2-L.W.(Crl.) 690(2) (KALAVATHY, ETC. v. STATE OF TAMIL NADU & OTHERS) it was indicated that a special refugee camp cannot be termed as an internment camp. It is further submitted by the Advocate General that the said decision was challenged before the Supreme Court in Special Leave Petition, but such S.L.P having been dismissed, it must be held that the ratio of the said decision was approved by the Supreme Court and, therefore, binding on the Madras High Court as well as other Courts in India being the law of land as declared under Article 141 of the Constitution of India.

5. In 1995-2-L.W.(Crl.) 690(2) (cited supra), orders had been passed in exercise of power under Section 3(2)(e) of the Foreigners Act directing that the persons concerned, who were of foreign origin, were to reside within the special camps established for the foreigners. The camp was guarded by armed policemen round the clock. Inmates of the camp could be visited by the relatives under supervision, but were not allowed to go outside and such inmates were kept inside the cells during night. The main contention raised was to the effect that such order actually amounted to confinement of the foreigners an