IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 27.4.2010 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL W.P.No.1243 of 2003 N.Sengodan Petitioner vs. 1. The Secretary to Government, Home (Prohibition and Excise) Department, Fort St. George, Chennai 600 009. 2. Thiru.V.Jegannathan, Inspector General of Police (Retired), 63, Narayanapuram (West), Natham Road, Madurai-14. 3. Thiru.Ramasamy, Inspector of Police, Pallapatti Police Station, Salem. 4. Thiru.E.Gobi, Inspector of Police, Nachiyaar Koil Police Station, Kumbakonam, Tanjore District. Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the respondents to pay him jointly and severally a sum of Rs.10,00,000/= (Rupees ten lakhs only) as damages and compensation in terms of money for his confinement in Central Prison, Salem for a period of two months and for the mental agony and physical sufferings meeted out to him and his family members. For petitioner : Mr.S.Shanmugavelayutham, Senior Counsel for Mr.Vijayaraghavan https://hcservices.ecourts.gov.in/hcservices/ For R1 : Mr.D.Srinivasan, AGP For RR 2 to 4 : Mr.K.Doraisami, Senior Counsel for Mrs.Muthumani Doraisami ORDER The petitioner served in the Indian Army for a period of seven years and thereafter, joined in the Tamil Nadu Subordinate Police Services and retired as Inspector of Police, Athur Police Station, Salem District on 31.10.1997. After his retirement, he had the opportunity of realizing the difficulties encountered by each and every member of the police force in Tamil Nadu and had voiced the merits of forming an association through which the demands of the members of the police force could be legally made to set right the wrongs committed to them. In the Tamil Daily Malai Murasu dated 8.12.1997, there was a news item allegedly authored by N.Sengodan, the petitioner herein in his capacity as State Convenor, Tamil Nadu Police Officials Association. Based on the said news item, a complaint dated 6.1.1998 was lodged by the fourth respondent with the third respondent Inspector of Police, Fairlands Police Station, Salem City. The third respondent registered a case in Crime No.11/98 for offence under section 3 of the Police (Incitement to Disaffection) Act, 1922 and for offence under section 505(1)(b) of the Indian Penal Code. The petitioner was arrested by the third respondent and was remanded to judicial custody. While he was in judicial custody, an order of detention dated 9.1.1998 passed by the second respondent Inspector General and Commissioner of Salem City was served on him. The order of detention was passed by the second respondent based on the proposal submitted by the third respondent. The petitioner made a written representation to the Secretary to Government on 19.2.1998 through the Superintendent, Central Prison, Salem. The Advisory Board established under the provisions of the Tamil Nadu Act 14/1982 recommended for revocation of the detention order. The Government of Tamil Nadu revoked the order of detention made by the Inspector General and Commissioner of Police. 2. The petitioner would contend that the order of detention was clamped against him with a mala fide intention of detaining him under Act 14/1982. The petitioner was detained under Act 14/1982 for a period of two months. The ground case also was dropped by the learned Judicial Magistrate V, Salem based on the final report submitted by the third respondent in the month of June 2001. Respondents 2 to 4 have acted with an object of destroying the reputation and image of the petitioner. The petitioner issued lawyer's notice dated 27.6.2002 claiming damages, but, the respondents gave a reply claiming immunity to their actions. Alleging https://hcservices.ecourts.gov.in/hcservices/ that the petitioner, alongwith his family members, underwent mental agony and physical sufferings, he sought for compensation of Rs.10,00,000/= from the respondents. 3. The first respondent has contended in the counter that the petitioner is guilty of suppression of material facts. The petitioner, having falsely claimed to be the Convenor of the Tamil Nadu Police Employees Association, visited several Districts and insisted the members of the Disciplined Forces to join the said association so as to raise their voice against the Government. The order of detention was passed by the second respondent only after obtaining legal advice. The petitioner submitted a representation dated 19.2.1998 undertaking that he would not indulge in any such activity in future. The Advisory Board, after perusing the order of detention, report of the detaining authority, the written representation of the detenu dated 19.2.1998 and the connected records, expressed its opinion that there was no sufficient cause for the detention of the petitioner. The Government revoked the order of detention passed as against the petitioner based on the advice of the Advisory Board. The final report was filed dropping the proceedings as against the petitioner only based on the fact that the detention order was revoked by the Advisory Board and the petitioner kept up his undertaking not to indulge in any activity for the next three years. The order of detention was passed by the second respondent in his official capacity. Therefore, the claim for damages made by the petitioner is totally unsustainable, it is contended. 4. Respondents 2 to 4 would contend in their counter that the petitioner submitted a representation dated 19.2.1998 tendering apology for his conduct and gave assurance that he would not indulge in any such activity in future. The second respondent forwarded the same to the Chief Office, Chennai with his report. Only on the basis of the undertaking given by the petitioner, the Advisory Board ordered the release of the petitioner. Legal Advisor was consulted beforeever the second respondent passed the order on the report submitted by the third respondent. The second respondent passed the detention order in his official capacity exercising the power vested with him. The order of detention passed by the second respondent was confirmed by the third respondent. No animosity was alleged as against respondents 2 to 4 by the petitioner. Very vague allegation has been made that the petitioner was detained with mala fide intention. The petitioner, claiming himself to be the Convenor of the Tamil Nadu Police Employees Association, made efforts to form an association. Respondents 2 to 4 cannot be fastened with any liability to pay compensation, it is contended. 5. A retired Inspector of Police, who was detained under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders and Slum Grabbers Act, 1982 (in short "Tamil Nadu Act 14/1982") and was released thereafter from detention by the https://hcservices.ecourts.gov.in/hcservices/ Government of Tamil Nadu as per the recommendation of the Advisory Board constituted as per the provision of the said Act, claims compensation from the respondents on the ground that respondents 2 to 4 have acted with mala fide intention in order to malign his reputation though there was no ground for booking a case as against him and passed an order of detention under the said Act. 6. There was a news item in the Tamil Daily Malai Murasu dated 8.12.1997 alleged to have been given by the petitioner in his capacity as State Convenor, Tamil Nadu Police Employees Association. The said news item is in the form of an address to the Honourable Chief Minister of Tamil Nadu. The sum and substance of it is as follows:- The police officials, who are supposed to give protection to the public, have been forced to seek protection for themselves. The police officials are not in a position to articulate their demands to the Government. The attack launched on Mr.Selvaraj, Police Constable and his subsequent death that took place at Coimbatore on 30.11.1997 is a classic example. As the police officials were not in a position to properly bring to the notice of the Government, their wives had to inform the Government about the incident through their strike on the street. In order to obviate such a situation, a demand was also placed before the State to permit them to have an association for themselves. Reminding the above development, a demand has now been made to permit them to have an association in order to ventilate their grievances and also to protect themselves. Therefore, the police officials make a demand to the Honourable Chief Minister to give permission to them to form an association in the above facts and circumstances. 7. Though this news item was published in the Tamil Daily Malai Murasu on 8.12.1997, on the basis of the complaint dated 6.1.1998 given by the fourth respondent, Inspector of Police, Sooramangalam Police Station, Salem City, the third respondent, Inspector of Police, Fairlands Police Station, Salem City registered a case in Crime No.11 of 1998 under section 3 of the Police (Incitement to Disaffection) Act, 1922 and section 505(1)(b) of the Indian Penal Code. The fact remains that the petitioner retired from service on 31.10.1997 itself. Therefore, this news item appeared long after his retirement. The petitioner was, thereafter, arrested on 6.1.1998 and was remanded to judicial custody on 7.1.1998. 8. The third respondent filed an affidavit before the second respondent praying for an order of detention under section 3(2) of the Tamil Nadu Act 14/1982. In the affidavit, he has averred to the fact that the petitioner, who has retired from the service on 31.10.1997, was known for his pro-police Association activities even while he was in Government service. He claimed to be the President of South Arcot District Police Association. The press statement given by the petitioner appeared in the Tamil Daily Malai Murasu on https://hcservices.ecourts.gov.in/hcservices/ 8.12.1997 has the potential to incite the police personnel of Tamil Nadu to form an association to fight for their rights. He had toured various Districts of Coimbatore, Tiruchirappalli, Pudukottai and Chennai and incited the serving police personnel with an idea to form an association. Bringing to the notice of the second respondent that he was acting in a manner prejudicial to the maintenance of public order, the third respondent prayed for an order of detention under section 3(2) of the Tamil Nadu Act 14/1982. The second respondent passed an order of detention considering the adverse activities of the petitioner which were brought to his notice. Having categorically held that the petitioner had acted in a manner prejudicial to the maintenance of public order, he passed an order under section 3(2) of the Act 14/1982. 9. On 9.1.1998 itself, the petitioner moved an application for bail. The learned Judicial Magistrate V, Salem, having adverted to the fact that the petitioner, having formed an association, made an open invitation to all the police officials to join the association, dismissed the application. 10. It is the admitted case of the first respondent that the first respondent also approved the order of detention passed by the second respondent. The Advisory Board, after perusing the grounds of detention, the report of the detaining authority to the Government, the written representation of the detenu dated 19.12.1998, the connected records and the oral representation of the detenu before the Advisory Board, unanimously expressed its opinion that there was no sufficient cause for the detention of the petitioner under Act 14/1982. Invoking the provision under section 12(2) of Act 14/1982, the Governor of Tamil Nadu revoked the order of detention passed on 9.1.1998 by the second respondent. As per the directions of the first respondent, the petitioner was released forthwith from detention under Tamil Nadu Act 14/1982. 11. section 3 of the Police (Incitement to Disaffection) Act, 1922 provides for penalty for causing dissatisfaction towards the State. Section 505(1)(b) of the Indian Penal Code provides for punishment for publishing or circulating any statement with an intent to cause or likely to cause fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against public tranquility. 12. In para 4 of the affidavit filed in support of the writ petition, the petitioner has categorically stated that after his retirement, he had the opportunity to realise the difficulties encountered by each and every member of the police force in the State of Tamil Nadu and had voiced the merits of forming an association, through which demands could be legally made to set right the wrongs committed to them. The aforesaid averment found in the affidavit of the petitioner is loud and clear that he was toying with an idea of https://hcservices.ecourts.gov.in/hcservices/ forming an association for the police force in order to address their grievance through the association. 13. Admittedly, the petitioner made a representation dated 19.2.1998 before the Advisory Board. In the penultimate paragraph of his representation, he has submitted as follows:- "I submit that I undertake not to indulge in any activities which is per se illegal and unlawful. I submit that I have not taken any part in the strike or in the connected activities. So, I request that I am innocent and I may be released at an early date. I assure you that I will not take any part in future in this connection." 14. If the aforesaid undertaking given before the Advisory Board is read alongwith the averment in the affidavit filed in support of the writ petition, it is quite clear that the petitioner, who had an idea to form an association for the police force, assured the Advisory Board that he would not take any part in future in that connection. 15. In fact, the very same representation was given to the second respondent who forwarded the same to the Director General of Police of Tamil Nadu bringing to his notice the assurance given by the petitioner that he would not indulge in any illegal or unlawful activities and the request made by him to revoke the detention order against him. 16. It is found that the second respondent, without simply forwarding the representation made by the petitioner, virtually recommended for some positive action on the basis of the assurance given by the petitioner. 17. It is not the case of the petitioner that the press note found published in Malai Murasu dated 8.12.1997 was purposely planted to implicate him in a criminal case. As per his own admission, he was toying with an idea for quite sometime to form an association to address the grievance of the police officials. The very fact that he had undertaken before the Advisory Board that he would not indulge in such activities in future would go to show that he expressed remorse for his activities which culminated in registration of the case. 18. The third respondent had after all registered a case based on the complaint given by the fourth respondent. He had suspected that the petitioner toured various Districts for the purpose of mobilising the opinion of the police force to form an association to address their grievance. The second respondent was completely guided by the case which was already registered as against the petitioner on the https://hcservices.ecourts.gov.in/hcservices/ file of the third respondent police and the adverse activities brought to his notice. In fact, the order of detention passed by the second respondent was approved by the first respondent. 19. It appears that there was an apprehension in the mind of the Government of Tamil Nadu that if association activities for the Uniformed Police Force is permitted, public order would be the first casualty. That had prompted the second respondent to pass the order of detention and the first respondent to approve the said order of detention passed by the second respondent. 20. As per section 2(f) of the Tamil Nadu Act 14/1982, a 'goonda' means a person who habitually commits or attempts to commit offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of of the Indian Penal Code, 1860. 21. The learned counsel appearing for the petitioner cites the decision of the Honourable Supreme Court in VIJAY NARAIN SINGH v. STATE OF BIHAR ((1984 3 SCC 14). The phrase "a person habitually commits" acts prejudicial to public order came up for consideration before the Honourable Supreme Court in the aforesaid decision. The Honourable Supreme Court has held that continuous repetition of some offence prejudicial to public order is essential to term a person habitually committing such acts. 22. Though the respondents would contend that the petitioner was involved in habitual activities prejudicial to the interest of the public order by touring various Districts and soliciting the police officials to join the Association, there is no concrete material produced before the court. But, there was a suspicion in the minds of the respondents that the chain of activities indulged by the petitioner by touring various Districts and inciting the police officials to join the Association would be prejudicial to the public order. 23. The third respondent, during the course of investigation, could not collect concrete materials to clamp the petitioner with the offence under section 3(2) of the Tamil Nadu Act 14/1982 and section 505(1)(b) of the Indian Penal Code. Therefore, he filed a final report recommending for dropping of the criminal proceedings initiated as against the petitioner. The learned Judicial Magistrate also accepted such a final report dropping the criminal proceedings initiated as against the petitioner. It is only thereafter the petitioner has filed this writ petition praying for compensation. 24. It may be a case where the third respondent was not in a position to collect materials to show that the petitioner was involved habitually in activities inciting the Uniformed Police Force to join the Association. That does not mean that the respondents acted with malicious or mala fide intention to malign the reputation https://hcservices.ecourts.gov.in/hcservices/ of the petitioner, who had already retired from service. There was no reason for the respondents to select a retired official to book a case and detain him under Tamil Nadu Act 14/1982, if they had not in good faith intended to prevent any violation to public order. 25. The learned counsel appearing for the petitioner cited a decision of the Supreme Court in BHIM SINGH, MLA v. STATE OF JAMMU AND KASHMIR AND OTHERS (AIR 1986 SC 494(1)). It has been held therein as follows:- "When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri.Bhim Singh a sum of Rs.50,000/= within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri.Bhim Singh." 26. That was a case where an MLA was imprisoned with malicious intent and thereby his constitutional and legal rights were invaded. Not only the police officials acted deliberately with mala fide intention but the learned Judicial Magistrate and the Subordinate Judge also aided them either by colluding with them or by their casual attitude. Under such circumstances, the above referred observation was made by the Honourable Supreme Court. 27. In the instant case, the press note published in Malai Murasu in the name of the petitioner was the source for registration of a case as against the petitioner. The respondents had to promptly act in order to avoid any upheaval in the police force on account of the call which emanated from the said press note. If any indiscipline is set in in the Uniformed Force, the State would be incapacitated to maintain the public order. Therefore, a case was registered by the third respondent based on the complaint given by the fourth respondent on the strength of the press note published in the Tamil Daily. There can be no mala fide intent on the part of the respondents to malign the reputation of the petitioner. The facts and circumstances of this case cannot be equated with the fact situation of the above case dealt with by the Supreme Court. 28. The learned Senior Counsel appearing for respondents 2 to 4 would submit that a protection has been provided under section 16 of the Tamil Nadu Act 14/1982 for the State Government as well as for the officers concerned in connection with the acts done in good faith by them. The above section would read that no suit or prosecution or https://hcservices.ecourts.gov.in/hcservices/ legal prosecution shall lie against the State Government or any other officers or person for anything in good faith done or intended to be done in pursuance of Act 14/1982. 29. It is found that there is a source for registering a case as against the petitioner. As the respondents apprehended that the entire police force would wake up to the call given in the press note, they acted in good faith to prevent any such untoward incident in the police force which may culminate in an upheaval. There may be some misconception of law by the respondents while clamping a detention order on the petitioner. Mala fide intention cannot be attributed for such misconception of law. 30. In this context, it is relevant to note that the second respondent, who, in fact, passed an order of detention as against the petitioner, thought it fit to give a positive signal to the authorities concerned to consider the request of the petitioner on the basis of the assurance given by him that he would not indulge in such activities in future. If there had been any mischievous or malicious intent to deprive the petitioner of the fundamental rights or to malign his reputation, the second respondent would not have acted in such a fair manner. 31. Coming to the role of the third respondent, it is found that he, having found that no substantial materials could be collected to charge sheet the petitioner, recommended for dropping of proceedings as against the petitioner in the final report filed by him before the court. The court also accepted the final report and dropped the proceedings as against the petitioner. The aforesaid act of the third respondent would go to show that there was no mala fide intention on his part in registration of a case and recommending for clamping an order of detention by the second respondent. Just because the Advisory Board found that there was no sufficient cause for detaining any more the petitioner and the case booked against the petitioner was dropped, mala fide intention cannot be attributed as against the respondents. 32. Preventive detention is an anticipatory measure. The main object of the law of preventive detention is not punitive but only preventive. Preventive detention is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law concerned. 33. Justifying the enactment of law of preventive detention, the Supreme Court has held in UNION OF INDIA v. AMRIT LAL MANCHANDA ((2004) 3 SCC 75) as follows:- "Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an https://hcservices.ecourts.gov.in/hcservices/ anticipatory measure and does not relate to an offence, while criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law concerned. The action of the executive in detaining a person being only precautionary, normally the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner, the failure to conform to which should lead to detention. The satisfaction of the detaining authority, therefore, is considered to be of primary importance, with great latitude in the exercise of its discretion. The