TMI Blog2013 (7) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... personnel of Tamil Nadu to form an association to fight their rights against the Government - the respondents had also failed to bring on record that the appellant toured to various Districts and incited serving police personnel over forming an association in a manner prejudicial to the maintenance of the public order. Personal liberty - Personal liberty is of the widest amplitude covering variety of rights - Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law, the Constitution - the investigator must be alive to the mandate of Constitution and is not empowered to trample upon the personal liberty of a person when he had acted by malafides – as decided in State of Bihar and another vs. P.P. Sharma, IAS(1991 (4) TMI 365 - SUPREME COURT). Intention to form Association - whether the intention of the appellant was to form Association of Police force amounts to causing disaffection towards the Government established by law to attract Section 3 of Police (Incitement to Disaffection) Act, 1922 – Held that:- Respondent grossly abused legal power to punish the appellant to destroy his reputation in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent, Ramasamy, is former Inspector of Police, Fairlands Police Station, Salem City. The 4th respondent, E.Gopi, is former Inspector of Police, Sooramangalam Police Station, Salem City on whose complaint a case in Crime No.11/98 was registered against the appellant under Section 3 of the Police (Incitement to Disaffection) Act, 1922 and Section 505(1)(b) of the Indian Penal Code. 4. According to the appellant, he had served both the Indian Army and State Police Service with devotion and had the privilege to win the appreciation of his superior officers in both the capacities. He is a family man and his wife is working as Senior Lecturer in the Government Arts College, Salem. His sons having completed their seven year course in Medicine in Russia are doing their internship in the Government Kilpauk Medical College, Chennai. They are all living together as a happy close knit family sharing their joys and sorrows with one another. Besides, the appellant has wide relations as well as friends who are all having high esteem on him and his family. The version of the appellant is that after his retirement, he had the opportunity to realize the difficulties encountered by each and every m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. The Governor of Tamil Nadu, in view of the recommendation, revoked the order of detention and directed that the appellant be released forthwith by the Government Order Rt.No.636, Prohibition and Excise(XIV) Department, dated 3rd March, 1998. 6. According to the appellant, the above detention order was clamped by the respondents against him with a malafide intention of detaining the appellant under the Tamil Nadu Act 14 of 1982 with a view to punish him. The 3rd respondent, Ramasamy, the then Inspector of Police, Fairlands Police Station had registered the said complaint given by 4th respondent Gopi in his Police Station Crime No.11/98 and the appellant was arrested in connection with the said crime and subsequently detained under the Tamil Nadu Act 14 of 1982 for a period of two months till he was released by the order of the Advisory Board revoking the order of detention dated 3rd March, 1998. It is alleged that after the release from prison, there was no action from the part of the 3rd respondent for a long time and no charge sheet was filed against the appellant in the Police Station Crime No.11/98. Ultimately, a final report was filed which was received by the Judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention order. The 2nd respondent forwarded the same to the Chief Office, Chennai with his report. The 3rd respondent was present before the Advisory Board when the matter came up for review and he presented a copy of the representation of the appellant. Only on the basis of the undertaking of the appellant that he will not indulge in any such activity in future, the Advisory Board ordered the release of the appellant. It was alleged that the appellant had willfully suppressed the material fact that he tendered an apology and gave in writing an undertaking that he will not indulge in any such activity in future. 10. Further, according to the 2nd respondent, the order of detention issued by him was confirmed by the Government of Tamil Nadu in G.O.Rt.No.195, Prohibition and Excise Department dated 20th January, 1998. Before issuing the detention order on the basis of the report of the 3rd respondent, the concerned legal advisor was consulted by the 2nd respondent and only after he gave his opinion that the activities of the appellant would attract the provisions of the Tamil Nadu Act 14 of 1982 the detention order was issued. Therefore, according to the 2nd respondent, he issued t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation Report, the communication made by the parties, order of detention, etc. It was submitted by the learned counsel for the appellant that the burden was wrongly placed on the detenu particularly when no explanation was given by the respondents as to why action was taken for detention of the appellant. It was further contented that the High Court erred in holding that the appellant 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, though there was no material available on record to support the same. According to the learned counsel for the appellant, in absence of any evidence against the appellant it was not open for the High Court to hold that the appellant toured various Districts to mobilize public opinion. 14. Learned counsel for the Ist respondent strenuously took pain to define malafide intention to suggest that nothing malafide either on facts or in law has been proved by the appellant. 15. The only question requires for our consideration is whether in the facts and circumstances of the case the appellant is entitled for any damage for havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxxx xxxx xxxx xxxx xxxx Humbly Submitted: Today i.e. on 6.1.98 at about 8.00 p.m. night while I being the Inspector of Police was at the station, the Inspector of Police, Sooramangalam Police Station, Salem City Thiru Gopi was present at the station and gave a report along with a paper News cutting dated 8.12.97 published in the news paper called Malai Murasu at page 2 which reads as follows:- From: E. Gopi, Inspector of Police, Sooramangalam P.S. Salem City. To The Inspector of Police, Fairlands Police Station, Salem City. Sir, I am working as Inspector of Police, Sooramangalam Police Station, Salem City. Today 6.1.98, I read Malai Murasu dated 8.12.97 and I came toknow that one Thiru N. Sengodan, formerly Inspector of Police, Attur Police Station, Salem District now retired and settled at 3/90 P T Colony, New Fairlands, Salem.16, Salem City has given a statement to Malai Murasu, Salem Edition as In the Report given by Sengodan, Organizer of the Tamil Nadu State Police Department Association it has been stated as follows: The Police Department which is giving protection to the General public is forced to seek protection for themselves as we have n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NNATHAN, I.P.S., Office of the Inspector General and Commissioner of Police, Salem City. C.M.P .No.04/GOONDA/SALEM CITY/98 Dated:09-01-1998 DETENTION ORDER Whereas, I, V. Jegannathan, I.P.S., Inspector General and Commissioner of Police, Salem City, on the materials placed before me, am satisfied that Thiru. N. Sengodan, Male, aged 59 years, son of late Nanjappa Gounder, No.3/9, P T Colony, (East) New Fairlands, Salem-16, Fairlands Police Station Limits, Salem City is a "Goonda" as contemplated under Tamil Nadu Act 14 of 1982, and Whereas the aforesaid individual is found indulging in an activity prejudicial to the maintenance of Public Order and details of which are set out in detail in the grounds of detention. Now, therefore, in exercise of the powers conferred by Sub section (2) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slumgrabbers Act, 1982 (Tamil Nadu Act 14/1982) read with the orders issued by the Government in G.O.Ms.No.221, Prohibition and Excise (XIV) Department dated:18.10.1997 under sub-section (2) of Section 3 of the said Act, I hereby direct tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby incidentally inciting the police personnel. Which is in a manner prejudicial to the maintenance of the public order on being produced before the Judicial Magistrate, I was remanded to judicial custody and lodged in the Central Prison, Salem. On 9.1.1998 at about 3.45 p.m. the Superintendent, Central Prison, Salem served the order in reference on me. The Inspector General and Commissioner of Police, Salem City has passed the said order exercising the powers vested in him as the detaining authority under Act 14 of 1982, The detaining authority has passed this detention order on the basis and acting upon an Affidavit filed by Thiru.M.Ramasamy, Inspector of Police, Fairland Police Station as the sponsoring authority. I submit that I had never been cited much less convicted for any offence previously, I have retired as a honest Police Officer I have never come to adverse notice even during my service, I have been an ex-serviceman while in service while many officers were not willing to join the TASK FORCE that was formed to nab the notorious sandal wood smuggler Veerappan I offered to join and indeed served in the TASK FORCE". I humbly submit that my record of service as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Salem City, were placed before the Advisory Board under Section 10 of the Prevention of Dangerous Activities of Bootleggers, Drug- Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum-grabbers Act 1982 (Tamil Nadu Act 14/1982). 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:9-2-98 and the connected records and also the oral representation of the detenu before the Advisory Board has expressed its unanimous opinion that there is no sufficient cause for the detention of Thiru.N. Sengodan. Therefore, in accordance with the Provisions of sub- section (2) of Section 12 of the aforesaid Act, the Governor of Tamil Nadu hereby revokes the order of detention dated:9-1-98 made by the Commissioner of Police, Salem City against the said Thiru. N. Sengodan and direct that Thiru.N. Sengodanbe released forthwith from detention under the Tamil Nadu Act 14/1982 unless he has been detained under any law or is serving any sentence having been convicted by any court. R. POORNALINGAM, SECRETARY TO GOVERNMENT. 21. In criminal case Crime No.11/98 after investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lacking and in one and advised to drop further action. Accordignly, further action in this case is hereby dropped. Sd/- Ramasamy, Inspector of Police, FairlandsP.S. In the meantime, because of criminal case and the detention order the appellant had to remain under detention for a period from 6th January, 1998 to 3rd March, 1998. 22. From the counter-affidavit we find that M. Subbannan, Assistant Commissioner of Police, Western Range, Salem City, Salem by letter dated 7th January, 1998 informed the Inspector General and Commissioner of Police, Salem City, Salem that the Additional Director of Prosecution, I/C Salem on perusal of the records of the Crime No.11/98 opined that the accused (appellant herein) is a fit person to be detained as 'Goonda' under the Tamil Nadu Act 14 of 1982. He thereby requested that the action may be taken against the appellant to detain him as 'Goonda' under the Tamil Nadu Act 14 of 1982. The said letter dated 7th January, 1998 reads as follows: D.THIRU.NAVUKKARASU, Dated: 7-01-1998. ASST. DIRECTOR OF PROSECUTION, DHARAMPURI i/c SALEM. ------------------------------------------------- I have perused the case diary file of Thiru.N. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... masamy, the then Inspector of Police, Fairlands Police Station, Salem City reads as follows: BEFORE THE INSPECTOR GENERAL AND COMMISSIONER OF POLICE, SALEM CITY. M. Ramasamy, ) Inspector of Police, ) Fairlands P.S., ) Salem City. ) PETITIONER Versus Thiru N. Sengodan, ) male, aged 59 years, ) son of late Nanjappa Gounder, ) 3/90, P T Colony (East) ) New Fairlands, Salem-16, ) Fairlands P.S. Limits, Salem City. RESPONDENT AFFIDAVIT FILED BY THIRU M. RAMASAMY, INSPECTOR OF POLICE, FAIRLANDS P.S., BEFORE THE COMMISSIONER OF POLICE, SALEM CITY, PRAYING FOR AN ORDER OF DETENTION UNDER SECTION 3(2) OF THE TAMIL NADU ACT 14/1982. I, M. Ramasamy, aged 43 years, son of Thiru Maruthaiah, Inspector of Police, Fairlands Police Station, Salem City, do hereby solemnly affirm and sincerely state as follows:- (1) I submit that I am the Inspector of Police, Fairlands P.S., having jurisdiction over Fairlands P.S. Limits. I have been entrusted with the work of enforcement of law and order, detention of crime, prohibition and other related offences, prosecution of criminals who commit offences in violation of the provisions which adversely affect the public order. (2) During the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and Commissioner of Police, Salem City, which reads as follows: PROCEEDINGS OF THE INSPECTOR GENERAL AND COMMISSIONER OF POLICE. SALEM CITY. PRESENT: THIRU V. JEGANNATHAN, I.P.S. C.M.P.NO.04/GOONDA/SLM(C)/98 DATED:09.01.1998. Sub: Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers Act, 1982 (Tamil Nadu Act 14/1982) Detention of Thiru N. Sengodan, male, aged 59 years, son of late Nanjappa gounder, residing at No.3/90, P T colony (East), New Fairlands, Salem-16, Fairlands P.S. Limits, Salem city under section 8(2) of the Act Grounds of detention. - - - ORDER: Thiru N. Sengodan, male, aged 59 years, son of late Nanjappa gounder and a retired Inspector of Police, residing at No.3/90, P T Colony (East), New Fairlands, Salem-16, Fairlands P.S. Limits; Salem City; has come to adverse notice as detailed below: i) Thiru N. Sengodan, who retired as Inspector of Police on 31-10-1997 from Attur Town Police Station in Salem District, is known for his pro- Police Association activities. ii) Even while he was in Government service, he had indulged in such Police Association act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested to take appropriate action against Thiru N. Sengodan. The Inspector of Police, Fairlands Police Station recorded the said complaint in the G.D. at 2000 hours on 06.01.98 and registered a case in Cr.No. 11/98, u/s 3 of the Police (Incitement to disaffection) Act, 1922 and Section 505(1) (b) IPC, against Thiru N. Sengodan, for commission of offences in inciting the police personnel to form an Association. The Inspector of Police, Fairlands P.S. took up investigation of the case, and he, alongwith his party proceeded to the residence of Thiru N. Sengodan, No.3/90, P T Colony (East), New Fairlands, Salem-16, and arrested him at 2200 hours, on 06.01.98. On being interrogated, Thiru N. Sengodan, admitted of having given the press statement to Malai Murasu on 08.12.97 on the need for the formation of an Association for Police personnel. He was then brought to Fairlands Police Station at 2230 hours on 06.01.98 and was handed over to the station sentry Gr. 1 PC. 2340 Selvakumar for custody. Later, Thiru N. Sengodan was produced before the Judicial Magistrate No.5, Salem at 0100 hours on 07.01.98 and was remanded to judicial custody for 15 days upto 20.01.98, at Central Prison, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Section 3. Penalty for causing disaffection, etc. Whoever intentionally causes or attempts to cause, or does any act which he knows is likely to cause disaffection towards the Government established by law in India amongst the members of a Police Force, or induces or attempts to induce, or does any act which he knows is likely to induce any member of a police force to withhold his service or to commit a breach of discipline shall be punished with imprisonment which may extend to six months or with fine which may extend to two hundred rupees, or with both. 27. Thus the question that arises is whether the intention of the appellant (a retried police officer) to form Association of Police force amounts to causing disaffection towards the Government established by law to attract Section 3 of Police (Incitement to Disaffection) Act, 1922. To decide such issue one may refer one of the Central Acts enacted by the Parliament known as The Police-Forces (Restriction of Rights) Act, 1966 (Act 33 of 1966) (hereinafter referred to as the 1966 Act") to provide for the restriction of certain rights conferred by Part III of the Constitution in their application to the members of the Force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Central Government or of the prescribed authority. For attracting the penalty under Section 3 for causing disaffection, it is to be proved that the person concerned intentionally caused or attempted to cause or done any act which is likely to be disaffection towards the Government established by law in this country among the members of the Police force or induces or attempts to induce or does any act which he knows likely to induce any member of the Police force to withhold his service or committed breach of discipline. 30. From the press statement dated 8th December, 1997 it is apparent that no incitement has been made by the appellant against the State Government nor the Police force has been instigated. The appellant cited past incident of 30th November, 1997 in which one Selvaraj a Police constable was attacked and killed which could not be brought to the notice of the Government by Police constables for taking proper action and their wives were forced to fight for their rights by coming to the street in bringing this to the notice of the Government. A reminder was given to the Chief Minister to allow to form Association or Union for the purpose of seeking proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the Fairlands Police Station Crime No.11/98 by Mr. M. Ramasamy, Inspector of Police, Fairlands Police Station, as quoted above, we also find that in absence of ingredients to hook-up the appellant under the aforesaid sections of law it was advised to drop the criminal case and the same was accordingly dropped. 34. The appellant was declared as 'Goonda' under detention order dated 9th January, 1998 and was detained under the Tamil Nadu Act 14 of 1982. 'Goonda' is defined under Section 2(f) of the Tamil Nadu Act 14 of 1982 which reads as follows: Section 2(f) Goonda means a person, who either by himself or as a member of or leader of a gang habitually commits, or attempts to commit or abets the commission of offence, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860). 35. Section 2(a) of the Tamil Nadu Act 14 of 1982 defines "acting in any manner prejudicial to the maintenance of public order", which in the case of 'Goonda' means Section 2(a): acting in any manner prejudicial to the maintenance of public order means (iii) in the case of a goonda, when he is engaged, or is making preparations for eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation and after retirement from service as Inspector of Police on 31.10.1997, he has reportedly floated a self styled Union, viz., Tamil Nadu Government Police Officials Union and he claims to have applied for recognition of his Union by the Government. 4. Considering his past history and present activities inciting the police personnel to form an Association of their own to fight for their rights, I am of the opinion that the prevailing penal law is of no avail to curb his activities and with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order of detention and the accused is a fit person to be detained as GOONDA under Tamil Nadu Act 14/1982. 38. The 3rd respondent, M. Ramasamy, the then Inspector of Police, Fairlands Police Station, Salem City in his affidavit stated that the appellant who retired from service on 31st October, 1997 is known for his pro-police association activities even while he was in service. It was further stated that the appellant claimed to be the President of the South Arcot District Police Association while in service and is a self styled leader of Tamil Nadu Government P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he public order. Again similar plea has been taken that the appellant was the President of South Arcot District Police Association and after retirement on 31st October, 1997 he floated a self styled Union, viz., Tamil Nadu Government Police Officials Union and there is a past history and present activities to show that he incited the police personnel to form an association of their own to fight for their rights against the Government. These statements made in the counter-affidavit are not based on the record and the justification given for detention clearly shows that the Ist respondent, 2nd respondent, V.Jegannathan, the then Inspector General and Commissioner of Police, Salem City and the 3rd respondent, M. Ramasamy, the then Inspector of Police, Fairlands Police Station, Salem City with an intention detained the appellant on 6th January, 1998 based on facts which were not in existence. The appellant had to remain in custody for more than two months on the basis of opinion given by the respondents based on facts which were not in existence. 42. We have noticed that the respondents have not even repented in taking wrong action, they have nowhere mentioned that the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary to the objects, requirements and conditions of a valid exercise of administrative power. 51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand. This Court in the same case of P.P. Sharma (supra) further held that the person against whom mala fides or bias was imputed should be impleaded as a party respondent to the proceedings and given an opportunity to meet those allegations. 46. In this case the appellant has not only made assertion but demonstrated by placing either by admitted or proved facts and circumstances obtainable that even though the case is not made out but he was harassed. 47. Personal liberty is of the widest amplitude covering variety of rights. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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