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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO & THE HONOURABLE MR. JUSTICE C.T. SELVAM
S. James Peter
Versus
The Secretary to Government & Another
Habeas Corpus Petition No.260 of 2009
Decided on: 17-04-2009
(B)National Security Act, 1980(65 of 1980)-Sec.3-Preventive detention-Exercise of power-No carte blanche is given to the authorities to be the sole arbiter on personal liberty.
The compulsions of the primordial need to maintain order in society are the true justifications for the laws of preventive detention. … No law is an end itself and the curtailment of liberty for reasons of States security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters. Para 15
(C)National Security Act, 1980(65 of 1980)-Sec.3-Preventive detention-Exercise of power-Procedural safeguards are to be meticulously complied.
The detention being preventive, not punitive, meticulous compliance with the procedural safeguard, however technical, is mandatory. Para 17
(D)National Security Act, 1980(65 of 1980)-Sec.3-Preventive detention-Exercise of power-Branding assembly of advocates as unlawful assembly-Unfortunate
It is rather unfortunate to brand such democratic form of meeting/assembly of advocates, practising the noble profession, as unlawful assembly. No such illegal attempt will ever be permitted to be made on the part of the law implementing agency to cow down the citizens of this great country and interfering with the rights guaranteed by the Constitution to its citizens. Para 24
(E) Unlawful Activities (Prevention) Act, 1967. (37 of 1967)-Sec.13-Mere speech in public meeting is not an offence under Sec.13.
Merely giving speech in a public meeting is not sufficient to punish a person under Section 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967. Para 30
In the absence of any proof that any such law and order problem has arisen pursuant to the speech delivered by the detenu and in the absence of any material to show that the detenu has taken part in any unlawful activities or committed any unlawful activity, so as to fall within the ambit of Section 13(1)(a) of the Unlawful Activities (Prevention) Act, 1967 and further in the absence of any material to show that the detenu has assisted any unlawful association, so as to say that he has committed the offence under Section 13(2) of the Unlawful Activities (Prevention) Act, 1967, the ingredients of Section 13(1)(a) and 13(2) are not attracted. Para 30
Two requirements are to be satisfied with, the first one is delivering a speech, having the capacity of affecting the sovereignty of the country and the second one is arising of consequential law and order problems, pursuant to such a speech delivered. Para 31
(F)National Security Act, 1980(65 of 1980)-Sec.3-Preventive detention-Exercise of power-Subjective satisfaction-Detaining authority directed registration of FIR-Subjective satisfaction is vitiated.
When the Detaining Authority himself has recommended for registration of the case, prior to passing of the detention order, he becomes a part of the investigating agency and there is every possibility of his not arriving at any subjective satisfaction. Para 32
Elipe Dharma Rao, J.
1. The challenge in this Habeas Corpus Petition is to the order of detention passed by the 2nd respondent herein in No.04/N.S.A./2009 dated 27.02.2009, praying to set aside the same as illegal and consequently, direct the respondents to produce the detenu, S.Seeman, now confined in Central Prison, Kalapattu, Puducherry, before this Court and set him at liberty.
2. The petitioner, who is the brother of the detenu, challenges the order of detention passed against the detenu detaining him under sub section (2) of Section 3 of the National Security Act, 1980 (Central Act 65/1980) read with G.O.Ms.No.61/Public (Law and Order-F) Department, dated 12.01.2009, which was passed on the basis of a speech delivered by the detenu on 17.02.2009 between 19.10 hours and 23.00 hours at Jawahar Thidal, Palayamkottai, Tirunelveli City.
3. It is alleged that in a public meeting organised by the Tirunelveli Bar Association on 17.02.2009, the detenu, who had participated in the said meeting, had spoken about Srilankan Tamils issue, in support of the Liberation Tigers of Tamil Eelam, a banned organisation, instigating violence amidst the youth and thereby disturbing the public order. It is also stated in the order of detention that the detenu had spoken in the said meeting that he had accepted Prabhakaran, the leader of the Liberation Tigers of Tamil Eelam, as his brother and he had also spoken in such a manner to instigate violence among youth of Tamil Nadu for the liberty of Tamil Eelam. In view of the above, a case in Crime No.308 of 2009 on the file of Palayamkottai Police Station was registered against the detenu for the offences under Section 505 IPC and Section 13(1)(b) and 13(2) of Unlawful Activities (Prevention) Act, 1967 and thereafter, he was arrested on 24.02.2009 and lodged at Central Prison, Kalapattu, Puducherry.
4. The detaining authority, after going through the materials placed before him by the Sponsoring Authority, has arrived at the subjective satisfaction that the detenu played a vital role in disturbing the public order and further came to the conclusion that in order to prevent him from indulging in such antisocial activities, which will severally affect the maintenance of public order, as contemplated under Section 3(2) of the National Security Act, 1980, and hence, an order of detention came to be passed against the detenu. Aggrieved of the same, the present habeas corpus petition has been filed.
5. Heard the learned Senior Counsel appearing for the petitioner and the learned Additional Advocate General appearing for the State.
6. The learned counsel appearing for the petitioner assailed the order of detention passed against the detenu on the following grounds:-
7. Firstly, the learned Senior Counsel appearing for the petitioner submitted that at page No.13 of the First Information Report, the 1st respondent has referred to the opinion of the Deputy Commissioner, Law and Order, wherein it is stated as follows:-
"Perused the opinion of the Deputy Commissioner, Law and Order. Register a case and investigate."
According to the learned Senior Counsel, the Commissioner of Police, who is the detaining authority, has become a part of the investigating agency and thus, acted in dual capacity, which caused substantial prejudice to the detenu.
8. Secondly, he has contented that the opinion of the legal advisor to the Commissioner of Police, is neither placed before the detaining authority nor supplied to the detenu and non furnishing of the same vitiates the order of detention passed against the detenu.
9. Thirdly, it is contended by the learned Senior Counsel that in the first information report, reference has been made to the report of the stenographer attached to the police department and the full and true transcription of the said report has neither been placed before the detaining authority nor supplied to the detenu which vitiates the order of detention passed against the detenu.
10. It is further c
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