IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.04.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE C.T.SELVAM Habeas Corpus Petition No.260 of 2009 S.James Peter ... Petitioner Vs 1. The Secretary to Government, Public (Law and Order-F) Department, Government of Tamil Nadu, Secretariat, Chennai-600 009. 2. The Commissioner of Police, Tirunelveli City. ... Respondents Prayer:- Petition under Article 226 of the Constitution of India praying for the issuance of a writ of Habeas Corpus for the relief as stated therein. For Petitioner : Mr.N.Natarajan, S.C., for Mr.N.Chandrasekar For Respondents : Mr.S.Ramasamy, Additional Advocate General assisted by Mr.N.R.Elango, Addl. Public Prosecutor. O R D E R (Order of the Court was made by ELIPE DHARMA RAO, J.) 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. https://hcservices.ecourts.gov.in/hcservices/ 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." https://hcservices.ecourts.gov.in/hcservices/ 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 contended that the speech delivered by the detenu would not attract the provisions of Section 13(1)(b) of the Unlawful Activities (Prevention) Act 1967. 11. Finally, it is contended by the learned Senior Counsel appearing for the petitioner that the detaining authority has failed to consider the fact that the speech made by the detenu is only in support of the Tamils who are suffering due to the ongoing war at Srilanka and the same is not against the sovereignty or integrity of India. 12. We have heard the learned Additional Advocate General on the above contentions raised by the learned Senior Counsel appearing for the petitioner. A counter affidavit has been filed on behalf of the respondents, wherein it is stated that the detenu had spoken in such a manner instigating violence among the youth of Tamil Nadu for the liberty of Tamil Eelam and he also acted in a manner prejudicial to the maintenance of public order and Indian Sovereignty and in this connection, a case in Crime No.308 of 2009 under Section 505 IPC. r/w. Section 13(1)(b) and 13(2) of the Unlawful Activities (Prevention) Act, 1967, on the file of Palayamkottai Police Station has been registered against the detenu. As regards the 1st contention, viz., the detaining authority has acted in a dual manner, it is explained in paragraph No.6 of the counter affidavit that it is the practice that whenever a serious offence is reported, the same is brought to the notice of senior officials and to take their orders and when the papers were placed for detention, the Commissioner of Police took an independent decision uninfluenced by the fact that it is he who directed to register the case, especially when the law clothes power to supervise all the investigations and functions of the subordinates and also to pass the order of detention and hence, it cannot be said that the detaining authority has acted in a dual capacity. https://hcservices.ecourts.gov.in/hcservices/ 13. With regard to the 2nd contention, viz., non furnishing of the opinion of the legal advisor to the Commissioner of Police, it is stated in the counter affidavit that the said document is meant for internal communication among the officers and it is sought to know the legal position and for the purpose of registering the first information report alone and the same is neither relied on nor referred to at the time of passing the order of detention against the detenu. 14. Insofar as the 3rd contention, viz., non-furnishing of the report of the stenographer attached to the police department to the detenu is concerned, it is stated in paragraph No.8 of the counter affidavit that the detaining authority has gone through the entire report of the Police Shorthand Reporter relating to the speech made by the detenu at Jawahar Thidal, Palayamkottai, on 17.02.2009 and after arriving at the subjective satisfaction by referring to the said document, the order of detention came to be passed and the said document was furnished to the detenu on 17.02.2009 and the C.D. relating thereto was also furnished on 18.02.2009 to the detenu. 15. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, a person’s greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty, would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a “jurisdiction of suspicion”, and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of individual liberty. No law is an end itself and the curtailment of liberty for reasons of State’s 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. 16. At this juncture, we feel it apt to quote the judgment of the Honourable Apex Court in SUNIL FULCHAND SHAH vs. UNION OF INDIA [(2000) 3 SCC 409], wherein it has been observed as follows: "Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over https://hcservices.ecourts.gov.in/hcservices/ individual liberty. Since, preventive detention is a form of precautionary State action, intended to prevent a person from indulging in a conduct, injurious to the society or the security of the State or public order, it has been recognised as “a necessary evil” and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. However, the power being drastic, the restrictions placed on a person to preventively detain must, consistently with the effectiveness of detention, be minimal. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. This court, as the guardian of the Constitution, though not the only guardian, has zealously attempted to preserve and protect the liberty of a citizen...." 17. The detention being preventive, not punitive, meticulous compliance with the procedural safeguard, however technical, is mandatory. 18. In this backdrop, now let us deal with various points urged on either side, to find out the legality of the impugned detention order. 19. The ground case came to be registered against the detenu under Sections 13(1)(b) and 13(2) of the Unlawful Activities (Prevention) Act, 1967, besides Section 505 IPC. For the sake of convenience and better appreciation, we extract hereunder Sections 13 (1)(b) and 13(2) of the Unlawful Activities (Prevention) Act, 1967, which read as follows:- 13.(1)(b) – Punishment for unlawful activities- Whoever – advocates, abets, advices or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine." 20. Section 13(2) of the Unlawful Activities (Prevention) Act, 1967, reads as follows:- "13(2) – Punishment for unlawful activities- Whoever, in any way, assists any unlawful activity of any association, declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both." 21. The term 'unlawful activity' has been defined under section https://hcservices.ecourts.gov.in/hcservices/ 2 (o) of the Unlawful Activities (Prevention) Act, 1967, as follows:- "2(o)-"Unlawful activity" in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),-" 22. Likewise, the term 'unlawful association' has been defined under section 2(p) of the Unlawful Activities (Prevention) Act, 1967, as follows:- "unlawful association" means any association, - (i)which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or (ii)which has for its object any activity which is punishable under Section 153-A or Section 153-B of the Indian Penal Code (45 of 1860), or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity: Provided that nothing contained in sub-clause (ii) shall apply to the State of Jammu and Kashmir;" 23. On a thorough and scrupulous analysis of the above extracted Sections, we could understand that clauses (o) and (p) of Section 2 contain definitions of “unlawful activity” and “unlawful association” respectively. An “unlawful activity”, defined in clause (o), means “any action taken” of the kind specified therein and having the consequence mentioned. In other words, “any action taken” by such individual or association constituting an “unlawful activity” must have the potential specified in the definition. Determination of these facts constitutes the foundation for declaring an association to be unlawful under sub-section (1) of Section 3 of the Act. Clause (p) defines “unlawful association” with reference to “unlawful activity” in sub-clause (i) thereof, and in sub-clause (ii) the reference is to the offences punishable under Section 153-A or Section 153-B of the Indian Penal Code. In sub-clause (ii), the objective determination is with reference to the offences punishable under Section 153-A or Section 153-B of the IPC while in sub-clause (i) it is with reference to “unlawful activity” as defined in clause (o). These definitions make it clear that the determination of the question whether any association is, or has become, an unlawful association to justify such declaration under sub-section (1) of Section 3 must be based on an objective decision; and the determination should be that “any action taken” by such association constitutes an “unlawful activity” which is the object of the association or the object is any activity punishable under Section https://hcservices.ecourts.gov.in/hcservices/ 153-A or Section 153-B IPC. It is only on the conclusion so reached in an objective determination that a declaration can be made by the Central Government under sub-section (1) of Section 3. 24. At this juncture, the question that was hovering in our minds, that when admittedly, in the case on hand, the alleged meeting, organised by the Advocates Association, said to be exclusively for the Advocates, does such an assembly of advocates could be called as an 'unlawful assembly', was remained unanswered. But, the effect of the said illegal and unacceptable attempt made on the part of the respondents to brand the assembly of the advocates as 'unlawful assembly', unmindful of the far-reaching consequences it will have on the society in general and the robed community in particular, has very much disturb us. 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. 25. Article 19 (1) of the Constitution of India contemplates that all citizens shall have the right- (a) To freedom of speech and expression; (b) To assemble peaceably and without arms; (c) To form associations or unions; (d) To move freely throughout the territory of India; (e) To reside and settle in any part of the territory of India; [and] (f) * * * * * (g) To practise any profession, or to carry on any occupation, trade or business. 26. Thus, Freedom of Speech and expression has been guaranteed by Article 19(1)(a). But, no doubt, the said right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of or in relation to the several matters set out therein. It is however clear that the freedom of speech and expression is not unfettered and Section 95 of the Code of Criminal Procedure exemplifies this principle on the understanding that this freedom must be available to all and no person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered. 27. In this legal backdrop, now, we have to decide whether the alleged action of the detenu will fall within the ambit of Sections 13(1)(b) and 13(2) of the Unlawful Activities (Prevention) Act, 1967, https://hcservices.ecourts.gov.in/hcservices/ whereupon much emphasis has been made on the part of the respondents. 28. We have gone through the entire materials available on record including the English translated version of the speech delivered by the detenu. 29. As seen from the translated version of the speech delivered by the detenu, it is clear that the leader of the banned organisation, viz., Liberation Tigers of Tamil Eelam, Prabhakaran, asked the detenu to gather 5,000 youth to fight for the liberation of Tamil Eelam. But it is not the case of the respondents that in compliance of the request of the said Prabhakaran, the detenu gathered 5000 youth and thereafter, resorted to unlawful activity affecting the sovereignty of the country or any territory. Therefore, if there is any consequential unlawful activity in pursuance of the speech delivered by the detenu, the provisions of Section 13(1)(b) and 13(2) are attracted. 30. From the reading of the aforesaid sections, it is seen that a person, who takes part or commits any unlawful activity, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. But as seen from the order of detention, it is clear that except participating in a public meeting and delivering a speech by the detenu at Jawahar Thidal, Palayamkottai, the respondents have failed to establish any commission of unlawful activity by the detenu. Therefore, 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. Hence, when the Additional Advocate General is advancing his arguments on this aspect, we required him to show the consequences of committing the unlawful activities by the general public or the participants of the said meeting, having been influenced by the speech delivered by the detenu. Nothing was brought to our notice by the respondents that any law and order problem has arisen anywhere in the State pursuant to the alleged speech delivered by the detenu, so as to clamp the impugned order of detention on the detenu. Further, it is not at all the case of the respondents that except delivering the alleged speech, the detenu, has in any manner acted in a manner prejudicial to the sovereignty of the country. 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. 31. On a comparative reading of all the above provisions of law, https://hcservices.ecourts.gov.in/hcservices/ 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. As has already been discussed supra in the case on hand, though the detenu is alleged to have delivered the impugned speech in the Tirunelveli Bar Association (which cannot, under any circumstances, be called as an 'unlawful association'), it is not even the case of the respondents that any law and order problem has arisen in the State pursuant to such an alleged speech delivered by the detenu. When there are no materials to show that the alleged act of the detenu in delivering the alleged speech has not caused any disturbance to the law and order of the State and the sovereignty of the country, the impugned order of detention clamped on the detenu by the respondents under that illusion, must be held to be illegal and the same is liable to be set aside. We place on record our anguish over the attempt made on the part of the respondents to brand such democratic form of meeting/assembly of advocates, practising the noble profession, as unlawful assembly and we direct the respondents not to resort to such illegal practices at least in future. 32. Further more, while coming to various arguments advanced, we find every force in the argument advanced on the part of the learned senior counsel for the detenu that 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. It could have been a different situation if the papers had been placed before some other competent authority to arrive at subjective satisfaction, required by law, before passing the order of detention, which is not the situation on hand. Therefore, even on this score, the impugned order of detention clamped on the detenu is liable to be set aside. Since the above discussed grounds/points themselves are sufficient to nullify the impugned order of detention, we do not propose to discuss the other points argued on either side. For all the above reasons, the impugned order of detention passed against the detenu is liable to be set aside and it is, accordingly, set aside. The Habeas Corpus Petition is allowed. The detenu. S.Seeman, is directed to be set at liberty forthwith, unless he is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ bs/Rao To 1. The Secretary to Government, Public (Law and Order-F) Dept., Government of Tamil Nadu, Secretariat, Chennai-600 009. 2. The Commissioner of Police, Tirunelveli City. 3. The Superintendent, Central Prison, Kalapattu, Puducherry. 4.The Joint Secretary to Government Public (Law and Order) Fort St. George, Chennai-9. 5. The Public Prosecutor, High Court, Chennai. +2ccs to Mr.N.Chandrasekaran, Advocate Sr 14960,14837 RSY(CO) km/22.4. H.C.P.No.260 of 2009 https://hcservices.ecourts.gov.in/hcservices/