# VEERAMANI v. STATE OF TAMIL NADU

- **Citation:** [1994] 1 S.C.R. 616
- **Court:** Supreme Court of India
- **Decided:** 1994-02-04
- **Bench:** K. Jayachandra Reddy, G.N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/veeramani-v-state-of-tamil-nadu-12121
- **Pages:** 26

## Headnote

Constitution of India, 1950: Article 22-Preventive Detention-Order of
detention under s. 3 of Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Dmg Offenders, Forest Offenders, Goondas, Immoral Traffic
C Offenders and Slum Grabbers Ac~ 1982-Representation for revocation
of-Held, representation must be made to authority who has power to approve,
rescind or revoke the decision.
Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Dmg
Offend.ers, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum
D Grabbers Act, 1982: Section 2(f), 3-'Goonda'-Order of detention served on
detenu in jaif-Held, detention order can validly be passed if lietaining ·
authority is aware that detenu is in custody and there is a possiblity of his
being released on bail and on being so released he would indulge in activities
prejudicial to maintenance of public order.
E
Section 8--Grounds of detention-Disclosure to detenue-Limitation-Held, if grounds are served within five days from passing of order, it
must be constmed that they are served 'as soon as possible'.
Sections 3, 14-0rder of detention-Approval of by State GovemmentF
Representation for revocation of-Held, representation can only be made to
State Government which has power to approve or revoke.
General Clauses Ac~ 1897/Tamil Nadu General Clauses Act, 1891:
Section 21/Section 15-Detaining authority under T.N. Act 14 of 1982-Power
to issue order of detention-Whcr:·1er ·includes power to revoke-Held, after
G approval of order by State Govt., power preserved by virtue of provisions under
General Clauses Act is no more exercisable.
Words and Phrases: Expression 'as soon as may be' occurring ins. 8
of T.N. Act No. 14 of 1982-lnterpretation of
H
'I)te petitioner was detained on 16.2.1993 under s. 3 of the Tamil
616
VEERAMANI v. STATEOFT.N.
617
Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, A
Forest Offenders, Goondas, Immoral Traffic Offenders, and Slum Grabbers Act, 1982. The grounds of detention were served on him on 20.2.1993
in jail. The grounds mentioned that the petitioner was a Goonda. The
petitioner had come to adverse notice in six cases. Four ca~es related to
the crimes committed by the petitioner in the year 1991 and two cases were B
in respect of the crimes committed on 10.2.1993. The detenu filed a writ of
habeas corpus which was dismissed by the High Court. Thereafter he filed
the special leave petition as also the writ petition under Article 32 of the
Constitution.
It was contended on behalf of the petitioner that the order of detenC
tion was illegal as the detaining authority did not apply its mind to certain
aspects, namely: in the grounds of detention the incidents pertaining to
the year 1991, besides being remote, were not of that magniture as to
disrupt public order and the two incidents of 10.2.1993 could be only
prejudicial to maintenance of law and order; on the date of order of
detention the petitioner was already in custody in connection with crimes D
under ss. 147, 148, 302, 307 I.P.~., and there was no question of his being
released on bail nor had he applied for bail, and therefQi:e the detention
order was unwarranted; the detaining authority while satisfying itself that
the petitioner was a 'goonda' relied on some documents which were not
supplied to the detenue but in the grounds mentioned only some first E
information reports in the cases which by themselves did not constitute
sufficient material to declare him to be a 'goonda', as a result of which the
petitioner could not make an effective representation; there was delay in
serving the grounds on the detenu. It was also contended that the detention
was vitiated for the reasons that the grounds did not indicate that the
detenu could make representation to the detaining authority itself; when
the representation reached the detaining authority, it should hav.e examined the sam-e and considered whether it could exercise its power under
s. 14 and revoke the detention;

## Text

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A
VEERAMANI
v.
STATE OF TAMIL NADU
FEBRUARY 4, 1994
B
[K. JAYACHANDRA REDDY AND G.N. RAY, JJ.)
Constitution of India, 1950: Article 22-Preventive Detention-Order of
detention under s. 3 of Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Dmg Offenders, Forest Offenders, Goondas, Immoral Traffic
C Offenders and Slum Grabbers Ac~ 1982-Representation for revocation
of-Held, representation must be made to authority who has power to approve,
rescind or revoke the decision.
Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Dmg
Offend.ers, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum
D Grabbers Act, 1982: Section 2(f), 3-'Goonda'-Order of detention served on
detenu in jaif-Held, detention order can validly be passed if lietaining ·
authority is aware that detenu is in custody and there is a possiblity of his
being released on bail and on being so released he would indulge in activities
prejudicial to maintenance of public order.
E
Section 8--Grounds of detention-Disclosure to detenue-Limitation-Held, if grounds are served within five days from passing of order, it
must be constmed that they are served 'as soon as possible'.
Sections 3, 14-0rder of detention-Approval of by State GovemmentF
Representation for revocation of-Held, representation can only be made to
State Government which has power to approve or revoke.
General Clauses Ac~ 1897/Tamil Nadu General Clauses Act, 1891:
Section 21/Section 15-Detaining authority under T.N. Act 14 of 1982-Power
to issue order of detention-Whcr:·1er ·includes power to revoke-Held, after
G approval of order by State Govt., power preserved by virtue of provisions under
General Clauses Act is no more exercisable.
Words and Phrases: Expression 'as soon as may be' occurring ins. 8
of T.N. Act No. 14 of 1982-lnterpretation of
H
'I)te petitioner was detained on 16.2.1993 under s. 3 of the Tamil
616
VEERAMANI v. STATEOFT.N.
617
Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, A
Forest Offenders, Goondas, Immoral Traffic Offenders, and Slum Grabbers Act, 1982. The grounds of detention were served on him on 20.2.1993
in jail. The grounds mentioned that the petitioner was a Goonda. The
petitioner had come to adverse notice in six cases. Four ca~es related to
the crimes committed by the petitioner in the year 1991 and two cases were B
in respect of the crimes committed on 10.2.1993. The detenu filed a writ of
habeas corpus which was dismissed by the High Court. Thereafter he filed
the special leave petition as also the writ petition under Article 32 of the
Constitution.
It was contended on behalf of the petitioner that the order of detenC
tion was illegal as the detaining authority did not apply its mind to certain
aspects, namely: in the grounds of detention the incidents pertaining to
the year 1991, besides being remote, were not of that magniture as to
disrupt public order and the two incidents of 10.2.1993 could be only
prejudicial to maintenance of law and order; on the date of order of
detention the petitioner was already in custody in connection with crimes D
under ss. 147, 148, 302, 307 I.P.~., and there was no question of his being
released on bail nor had he applied for bail, and therefQi:e the detention
order was unwarranted; the detaining authority while satisfying itself that
the petitioner was a 'goonda' relied on some documents which were not
supplied to the detenue but in the grounds mentioned only some first E
information reports in the cases which by themselves did not constitute
sufficient material to declare him to be a 'goonda', as a result of which the
petitioner could not make an effective representation; there was delay in
serving the grounds on the detenu. It was also contended that the detention
was vitiated for the reasons that the grounds did not indicate that the
detenu could make representation to the detaining authority itself; when
the representation reached the detaining authority, it should hav.e examined the sam-e and considered whether it could exercise its power under
s. 14 and revoke the detention; and the power of the·detaining authority
does not cease to exist even after approval by the State Government.
Dismissing the cases, this Court
F
G
HELD: 1. It cannot be said that the activities mentioned in the
grounds are not prejudicial to the maintenance of public order. The
detaining authority in Paragraph 3 of the grounds has mentioned that the H
'
618
SUPREME COURT REPORTS
[1994] 1 S.C.R.
A two incidents dated 10.2.1993 and the attack on police party by the
petitioner and his associates on 11.2.1993 certainly affected the main·
tenance of public order. (624-E]
B
c
2.1. Even in the case of a person in custody, a detention order .can
validly be passed if the authority passing the order is aware of the fact that
the detenu is actually in custody, and the d~taining authority has reason
fObelieve on the basis of the reliable material that there is a-possibility of
the detenu being released on bail and on being so released, he would in all
probabilities indulge in prejudicial activities; and if the authority passes
an order after recording his satisfaction the same cannot be struck down.
(626-H; 627-A·B]
2.2. The detaining authority noted in Paragraph 4 · of the grounds
that it was aware that the detenu was on remand, and was likely to file a
bail application and bail was usually granted by the courts in such cases.
It was further emphasised that there was 'imminent possibility' of the
D detenu coming out on bail, and if he came out on bail he was likely to
indulge in further illegal activities prejudicial to the maintenance of public
order. Therefore, it cannot be said that the detaining authority has not
applied its mind to this aspect. (627-G, H; 628-D, E]
Sanjay Kumar Aggarwal v. Union of India and Ors., (1990) 3 S.C.C.
E 309; N. Meera Rani v. Government of Tamil Nadu and Anr., (1989] 4 S.C.C.
418; Dharmendra Suganchand Chelawat andAnr. v. Union of India and Ors.,
A.I.R. (1990) S.C. 1196; Kamarunnissa and Anr. v. Un.ion of India and Anr.,
A.I.R. (1991)..S.C. 1640 andAbdul Sathar Ibrahim Manik andAnr. v. Union
of India and Ors., (1992] 1 S.C.C. 1, relied on.
F
G
Rameshwar Shaw v. District Magistrate, Burdwan and Anr., A.I.R.
(1964) S.C. 334, referred to.
Rivadeneyra Ricardo Agustin v. Government of the National Capital
Territory of Delh~ (Decided by this Court on 8.4.1993), distinguished.
3. The grounds disclos~ that the serious incidents of 10.2.1993 and
11.2.1993 alone formed the grounds of detention. The earlier incidents have
been referred to only for showing that the detenu has been indulging
habitually in committing offences and as such comes within the meaning
of 'goonda', and to that extent the detenu has been put on sufficient notice
H by referring to all the FIRs and the copies of the same have been supplied
VEERAMANI v. STATEOFT.N.
619
to him. The copies of statement under s. 161 Cr. P.C. and the connected A
materials which were simply placed before the detaining authority and
which were looked into to verify whether the contents of the FIR were
substantial, cannot be said to be the real material forming the basis of the
grounds and non supply of copies thereof did not cause any prejudice to
the detenu. Besides, while making the representation, the detenu did.not B
ask for any such documents. [629-F, G; 630-A]
· Debu Mahato v. The State of West Bengal, [1974) 4 S.C.C. 135 and
Khudiram Das v. The State of West Bengal and Ors., [1975] 2 S.C.C. 81,
referred to.
c
4. The grounds, as provided under the Act, were served within five
days from the date of passing the order of detention. The words 'as soon
as may be' should be understood in the context in which they are used. If
the grounds are served within five days, it must be construed that they are
served as soon as possible. However, if the grounds are served b~yond five
days, the reasons for delay ought to be recorded. [630-B, C]
D
A.K Roy and Ors. v. Union of India and Ors., [1982] 1 S.C.C. 271,
referred to.
5.1. Article 22(5) of the Constitution casts an obligation on the detainE
ing authority to communicate to the detenu the grounds and to afford to the
detenu the earliest opportunity of making the representation. The Article
does not say to whom such representation is to be made but the right to
make a representation against the detention order undoubtedly flows from
the constitutional guarantee enshrined therein. The question as to whom
such representation should be made depends upon the provisions of the Act F
and such a representation must be made to the authority who has power to
approve, rescind or revoke the decision. [639-A-C]
5.2. The Act provides that any detention order made by the empowered officer shall cease to be in operation if not approved by the State G
Government within 12 days. Therefore it is clear that the Act never
contemplated that the detaining authority has specific power to revoke and
it cannot be inferred that a representation can be made to it within the
meaning of Article 22(5). [639-D]
5.3. The representation to be made by the detenu, after the earliest H
620
SUPREME COURT REPORTS
[1994] 1 S.C.R.
A
opportunity was afforded to him, can be only to the Government which has
the power to approve or to revoke. That being the position the question of
detenu being informed specifically in the grounds that he had also a right
to make a representation to the detaining authority itself besides the State
Government does not arise. [639-E]
B
5.4. The detention order passed under the enactments where there is
specific provision for approval by the Government, cannot be revoked by
the detaining authority after such approval and the power preserved by
virtue of the provisions of the General Clauses Act is no more exercisable.
Under the Act there is a specific provision for such approval by the State
C Government within 12 days from the date of making the order and the
-Government approved the detention. [636-D; 638-G]
State of Maharashtra andAnr. v. Smt. Sushi/a Mafatlal Shah and Ors.,
[1988] 4 S.C.C. 490, relied on.
D
Raj Ki.shore Prasad v. State of Bihar and Ors., [1982] 3 S.C.C. 10,
E
F
referred to.
Ibrahim Bachu Baf an and Anr. v. State of Gujarat and Ors., [1985] 2
S.C.C. 24 and Shad Khan and Anr. v. L. Hmingliana and Ors., [1991] 4
S.C.C. 39, held inapplicable.
Smt. Razia Umar Bakshi v. Union of India, [1981] Suppl. S.C.C. 195,
cited.
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl.) No.
364of1993.
(Under Article 32 of the Constitution of India).
Ram Jethmalani, R.K. Dey, AK. Sahu and Ms. Lata Krishnamurthy
for the Petitioner.
G
--C.S. Vaidyanathan, K.V. Vishwanathan and K.V. Venkataraman for
the Respondent.
The Judgment of the Court was delivered by
K. JAYACHANDRA REDDY, J. 1. The petitioner, who is himself the
H detenu, was detained under the provisions of Tamil Nadu Prevention of
VEERAMANl v. STATE OFT.N. [K.J. REDDY, J.)
621
Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, A
Goondas, Immoral Traffic Offenders. and Slum Grabbers Act, 1982
('Tan1ilnadu Act' for short). He challenged the detention order before the
High Court by filing a writ of habeas corpus and the same was dismissed.
Questioning the same, he has filed S.L.P. (Crl.) No. 2685/93 in this Court.
He has also filed Writ Petition (Crl.) No. 364/93 under Article 32 of the B
Constitution in this Court and both are being disposed of togethf'.r by a
common judgment.
2. The petitioner is a resident of Madras City. On 16.2.1993 he was
detained under Section 3 of the Tamilnadu Act in order to prevent him
from acting in any manner prejudicial to the maintenance of public order, C
by an order passed by the Commissioner of Police, M~dras. The grounds
of detention in support of the order were served on the petitioner in jail
on 20.2.1993. In both these petitions, common grounds challenging the
detention have been advanced. Before we proceed to consider the same,
it is necessary to refer to the relevant portions of the grounds which also
came under severe attack by the learned counsel for the petitioner. After D
referring to the subject it was mentioned thus:
S. No.
1.
1.
2.
3.
4.
5.
6.
"Thiru Veeramani, male, aged 35, s/o Kalappan, No. 28/1,
Ayodhiyakuppam, Madras-5 is a Goonda. He has came
to adverse notice in the following cases:
E
Police Station and
Section of Law
Disposal/
Crime No.
Present State
2.
3.
4.
D-5 Marina P.S.
341, 323, r/w 34 and 506 On 8.1.91
Crime No. 14/91
(ii) IPC
F
D-5 Marina P.S.
341, 324, 336, 426 & 506 On 17.1.91
Crime No. 41/91
(ii) IPC r/w 109 IPC
D-5 Marina P.S.
448, 324 and 307 IPC
On 18.5.91
Crime No. 379/91
D-5 Marina P.S.
341, 324 IPC
On 18.5.91
Crime No. 380/91 ·
G
R-7 K.K. Nagar P.S.
141, 341, 302 & 506 (ii) On 10.2.93_
Crime No. 288/93
IPC
B-2 Esplanade P.S.
147, 148, 120-B, 341,
Crime No. 237/93
307, 506 (ii) and 109 On 10.2.93
IPC r/w 149 IPC"
H
622
SUPREME COURT REPORTS
[1994] 1 S.C.R.
A After listing the above crimes, in Paragraph 2 of the grounds, it is just
mentioned that the detention order has been made against the petitioner
under Section 3(1) of the Tamilnadu Act on 16.2.1993. In Paragraph 3,
reference is made to the occurrence on 10.2.1993. It is stated that on
10.2.1993 a special police party headed by the Inspector of Police, Law and
B
c
Order along with a police party consisting of a number of constables was
constituted for the purpose of apprehending the petitioner and his associates connected with Crime No. 288/93 of K.K. Nagar Police Station
under Sections 148, 341, 302 and 506(ii) I.P.C. and also in connection with
Crime No. 237/93. On 11.2.1993 at about 3 P.M. the aforesaid special police
party proceeded to Ayodhakuppam, Madras to apprehend ilie petitioner
and others. While they were so proceeding, the petitioner and his associates shouted at them and when the police party surrounded the
petitioner and his associates to apprehend them, the members of the police
party were challenged and were attacked and the petitioner aimed a cut
on the head of the Inspector with a patta knife but which fell on his left
D fore-arm causing a bleeding injury and similal'ly some of the associates of
the petitioner inflicted injuries on the constables and stones were pelted
against them which caused injuries. However, they were apprehended but
the petitioner threatend the general public and thereby instilled a sense of
fear and panic in their minds. Some more details of the crime were
E
F
mentioned and finally it was concluded that from this material, the
authority was satisfied that the petitioner and his associates acted in a
manner prejudicial to the maintenance of public order. Towards the end
of Paragraph 3, it was mentioned as under:
"In arriving at my subjective satisfaction I have not taken
into account the bootlegging activities of Tr. Veeramani
or his connection and sentence in the murder case, as
revealed in his confessional statement. recorded by the
Inspector of Police during the course. of investigation bf
Cr. No. 61/93 on the file of the D-5 Marina Police Station".
G Paragraph 4 of the grounds reads thus:
H
"I am aware that T 11iru Veeramani is now in remand he
is likely to file a bail application and come out on bail. I
am also aware that bail is usually granted by the Courts
in such cases and hence there is imminent possibility that
I
VEERAMANI v. STATE OFT.N. [KJ. REDDY,J.]
he will come out on bail. If he comes out on bail, he is
likely to indulge in such further illegal activities in future
which will be prejudicial to the maintenance of public
order ......................................................... "
Relevant portion of Paragraph 5 reads thus :
"Thiru Veeramani is informed that he has a right to make
representation in writing against the order by whicy he is
kept in detention. If he wishes to make such a representation he should address it to the Secretary to Government, Prohibition and Excise Department, Madras-9, and
forward it through the Superintendent of Prison in which
he is confined as expeditiously as possible".
623
3. At the outset, the learned counsel in a general way submitted that
A
B
c
the first six crimes referred to are of 1991 and they are remote and it D
appears as though the detaining authority has taken them also into consideration and they are not of that magnitude as to disrupt public order
and the other two incidents of 10.2.1993 mentioned in the grounds can be
only prejudicial to the maintenance of law and order and therefore the
detaining authority has not properly applied its mind and also the minor
incidents which are mentioned in the grounds would show that they also E
formed part of the material considered by the detaining authority in
arriving at the necessary satisfaction. We have carefully gone through the
grounds. It may be mentioned here that the Act provides for preventive
detention of bootleggers, Goondas, Immoral traffic off enders etc. for
preventing their dangerous activities prejudicial to the maintenance of F
public order. Therefore first the authority must be satisfied that the person
sought to be detained comes within the meaning of one of these categories
namely Bootlegger, Goonda and Immoral traffic offender. Section 2(t) of
the Tamilnadu Act defines "goonda" thus:
'"'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 offences,
punishable under Chapter XVI or Chapter X\'.ll or Chapter XXII of the Indian Penal Code (Central Act XIV of
1860)".
G
H
624
SUPREME COURT REPORTS
[1994) 1 S.C.R.
A
Relevant portion of Section 3 under which the order of detention is made,
reads thus:
B
c
"3. POWER TO MAKE ORDERS DETAINING CERTAIN PERSONS:-
(1) The State Government may, if satisfied with respect
to any bootlegger or drug-offender or forest-offender or
goonda or immoral traffic offender or slum-grabber that
with a view to prevent him from acting in any manner
prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person
be detained.
·
xxx
xxx
xxx"
It can therefore be seen that at first the authority must be satisfied that the
D person comes within the meaning of "goonda". The relevant part of the
grounds which is noted above would show that the petitioner Veeramani
has come to adverse notice in the six cases mentioned. Then thereafter as
required under Section 3(1) of the Act, the detaining authority must satisfy
himself that it is necessary to detain such a person. The detaining authority
in Paragraph 3 has mentioned that the tw? incidents and the attack on
E
police party by the petitioner and his associates on 11.2.1993 certainly
affected the maintenance of public order. Therefore it cannot be said that
the activities mentioned in the grounds are not prejudicial to the maintenance of public order.
p
4. The next point urged is that on the date of order of detention the
petitioner was already in custody under the orders of the Magistrate who
remanded him on 11.2.1993 in connection with Crime Nos. 288/93 and
237/93 being accused of offences punishable under Sections 147, 148, 302,
307 I.P.C. etc. and there was no question of his being released on bail and
G that as a matter of fact the petitioner did not apply for bail. Therefore, the
detention was unwarranted and it shows that there is no genuine satsfaction
regarding the detention as required under the Act and ther~fore the order
is illegal. As extracted above the detaining authority noted in paragr;aph 4
J
that he was aware that the petitioner is on remand and that he was likely
to file a bail application and that bail is usually granted by the courts in
H such cases and that if he comes out on bail, he is likely to indulge in such
I
VEERAMANI v. STATE OFT.N. [KJ. REDDY, J.)
625
further illegal activities prejudicial to the maintenance of public order. The A
learned counsel, however, contended that the petitioner who was involved
in a murder case punishable under Section 302 I.P.C. would not be released
so ::asually as is being stated by the detaining authority and that only shows
that it has not applied its mind.
5. On the question whether the detaining authority has properly B
applied its mind in such cases where the persons sought to be detained are
already in custody, there are a number or cases decided by this Court. The
learned counsel, however, placed considerable reliance on a judgment of
this Court in Rameshwar Shaw v. District Magistrate, Burdwan and Another,
A.LR. (1%4) S.C. 334. In this case the Constitution Bench considered the C
question "Can a person in jail custody be served with an order of detention
while he is in such custody?" In this context the Bench observed as under:
''The first stage in the process is to examine the meterial
adduced against a person to show either from his conduct
or his antecedent history that he has been acting in a
prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to consider
whether it is likely that the said persons would act in a
prejudicial manner in futhure if he is not prevented from
doing so by an order of detention. If this question is
answered against the petitioner, then the detention order
can be properly made. It is obvious that before an
authority can legitimately come to the conclusion that the
detention of the person is necessary to prevent him from
acting in a prejudicial manner, the authority has to be
satisfied that if the person is not detained, he would act
!n a prejudicial manner and that inevitably postulates
freedom of action to the said person at the relevant time.
If a person is already in jail custody how can it rationally
be postulated that if he is not detained, he would act in a
prejudicial manner? At the point of time when an order
of detention is going to be served on a person, it must be
patent that the said person wwld act prejudicially if he is
not detained and that is a consideration which would be
absent when the authority is dealing with a person already
in detenti::m. The satisfaction that it is necessary to detain
D
E
F
G
H
A
B
c
D
E
626
SUPH.EME COURT REPORTS
[1994] 1 S.C.R.
a person for the purpose of preventing him from acting
in a prejudicial manner is thus the basis of the order under
s. 3(1)(a), and this basis is clearly absent in the case of
the petitioner".
But in the same judgment it was also observed in Paragraph 12 that as an
abstract proposition of law, there may not be any doubt that S. 3(1)(a) does
not preclude the authority from passing an order of detention against a
person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ. In the same paragraph it was
further observed thus:
"Whether the detention of the said person would be necessary after he is released from jail, and if the authority is
bona fide satisfied that such detention is necessary, he can
make a valid order of detention a few days before the
person is likely to be released.
xxx
xxx
xxx
Therefore, we are satisfied that the question as to whether
an order of detention can be passed against a person who
is in detention or in jail, will always have to be determined
in the circumstances of each case".
But in 111:ter case this question has been considered further and this Court
has clearly laid down that no decision of this Court has gone to tke extent
of holding that no order of detention can validly be passed against a person
F . in custody under any circumstances and that the facts and circumstances
of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in
jail. (vide Sanjay Kumar Agganval v. Union of India and others, [1990) 3
S.C.C. 309; N. Meera Rani v. Government of Tamil Nadu and another,
[1989) 4 S.C.C. 418; Dhannendra Suganchand Chelawat and another v.
G Union of India and others, A.I.R. (1990) S.C. 1196; Kamarunnissa and
Another v. Union of India and Another, A.I.R. (1991) S.C. 1640 andAbdul
Sathar Ibrahim Manik and Another v. Union of India and Others, [1992) 1
S.C.C.1.
H
6. From the catena of decisions of this Court it is clear that even in
l
\
\
VEERAMANI v. STATE OFT.N. [KJ. REDDY,J.)
627
~
the case of a person in custody, a detention order can validly be passed if A
the authority passing the order is aware of the fact that he is actually in
custody;_if he has reason to believe on the basis of the reliable material
that there is a possibility of his being released on bail and that on being SJ
released, the detenu would in all probabilities indulge in prejudicial activities and if the authmity passes an order after recording his satisfaction B
the same can not be struck down.
7. Learned counsel, however, submitted that by malcing a sweeping
statement that the petitioner is likely to be released on bail, the detaining
authority can not pass a detention order and when there is no likelihood
of his being released on bail from custody, the order of detention is illegal c
inasmuch as there is no proper application of mind. In this context the
learned counsel also submitted that since the detenu was in actual custody
in connection with the murder case, no reasonable person can arrive at the
conclusion that he was likely to be released on bail and that the statement
,..(
of the detaining authority in the grounds that the detenu is likely to file a
bail application and come out on bail and that he was aware that bail is D
usually granted by the courts in such cases, is illogical and unsound. In this
context the learned counsel relied on an unreported judgment of this Court
in Writ Petition (Crl.) No. 604 of 1992 - Rivadeneyra Ricardo Agustin v.
Government of the National Capital Territory of Delhi and Ors., decided on
8.4.1993. In that case in the grounds it was only mentioned that there was E
a 'possibility' of the detenu being released in case he moves a bail application. This Court observed tll.at since the grounds did not indicate that such
release was likely or that it was imminent and that on a mere possiblity the
detention order could not have been passed. The Bench also examined the
relevant file and observed that there was no material indicating that the F
release of the petitioner was likely.
8. But in the instant case what we have to mainly see is whether there
was awareness in the mind of the detaining authority that the detenu is in
custody and that he had reason to believe that he is likely to be released. G
The grounds do disclose that the detaining authority was aware that the
'<.
detenu is in custody and it is further mentioned that he was also aware that
bail is usually granted by the courts in such cases and it is further emphasised that there is 'imminent possibility' of the detenu coming out on
bail. As a matter of fact the High Court in its judgment while considering
this aspect also observed thus:
H
628
A
B
c
D
SUPREME COURT REPORTS
(1994) 1 S.C.R.
"The grounds indicate that the detenu, who was in remand,
was likely to file a bail application and come out on bail.
This shows the subjective satisfaction of the detaining
authority not only of the awareness of the petitioner being
in remand, but his subjective satisfaction of the likelihood
of the petitioner coming out on bail by filing bail application. Of course, the detaining authority need not have
stated that he was also aware that bail is usually granted
by Courts in such cases and hence there is imminent
possibility that he will come out on bail if it has to be held
to be a sweeping statement, but on facts, it can not be said
that the statement is of a sweeping nature for, it is well
known that in offences punishable under the. sections
listed above, bail orders are usually granted after some
time and most certainly except in rarest of rare cases after
the final report is laid".
,
Therefore it can be said that the detaining authority has not applied its
mind tb this aspect. It is also submitted that the detenu, as a matter of fact,
did not file any bail application. But it must be noted that the detenu was
arrer;ted on 11.2.1993 and remanded to custody and on 16.2.1993 itself the
detention order was passed. Therefore there was no opportunity for him
E to file a bail application within this short interval.
9. The next submission is that the detaining authority has relied on
some documents which were not supplied to the detenu. It is submitted
that under the. Act, the authority himself first be satisfied that the detenu
F
comes within the meaning of "goonda" and then he should be further
satisfied that he was likely to indulge in activities prejudicial to the main-
. tenance of public order and that the detaining authority while satisfying
himself that the detenu was "goonda" has mentioned only the F.l.Rs. in
those six cases which by themselves .do not constitute sufficient material to
declare him to be a "goonda" and that the authority must have been
G influenced by some unproved and irrelevant material. In this context
reliance is also placed on some of the averments in the counter-affidavit
)
filed by the detaining authority. In Paragraph 10 of the -counter-affidavit
the detaining authority stated that besides the first information reports, the
statement of witnesses under Section 161, the confessional statement of the
H detenu and various other materials relating to those six cases had been
VEERAMANI v. STATE OFT.N. (K.J. REDDY, J.]
629
placed and considered and it is also stated that it has not taken into A
account the bail application or the bail orders in any of the earlier cases
nor relied upon. The learned counsel submitted that the material relied
upon by the detaining authority has not been supplied to the detenu and
that he could not make an effective representation. Therefore the detention
is illegal. Learned counsel placed reliance on the Judgments of this ~ourt B
in Debu Mahato v. The State of West Bengal, [1974) 4 S.C.C. 135 and
Khudiram Das v. The State of West Bangal and Others, [1975) 2 S.C.C. 81,
wherein it was held that the grounds may not include all the basic facts and
y
materials which have been taken into account by the detaining authority in
making the order of detention must be communicated to the' detenu. But
the real questhn is whether those materials whicy have just been placed C
before the detenu also formed basis for arriving at the necessary satisfaction and whether they thus constitute part of grounds. In paragraph 3 of
the grounds, it is clearly stated that:
"In arriving at my subjective satisfaction I have not taken
into account the bootleSc,aing activities of Tr. Veeramani
or his connection and sentence in the murder case, as
revealed in his confessional statement recorded by the
Inspector of Police during the course of investigation of
Cr. No. 61/93 on the file of the D-5, Marina Police Station".
D
E
The grounds furth\!r disclose that the serious incidents of 10.2.1993 and
11.2.1993 alone formed the grounds of detention. The earlier incidents
were only referred to for showing that the detenu has been indulging
habitually in committing offences and to that extent all the F.I.Rs. have F
been referred to and the copies of the same have been supplied to the
detenu and the copies of statement under Section 161 and the connected
materials which were simply placed before the detaining authority and
which were looked into to verify whether the contents of the F.I.R. were
substantial, can not be held to be the real material forming the basis of the
grounds as mentioned above. Under the Act, the authority must be satisfied G
that the detenu comes within the meaning of "goonda". No doubt even as
against that the detenu has to make his representation stating how he does
not come within the meaning of "goonda". To that extent he has been put
on sufficient notice by referring to the F.I.Rs. in six consecutive cases which
could show that he has been habitually indulging in offences and which by H
630
SUPREME COURT REPORTS
[1994],1 S.C.R.
A
themselves form sufficient material to show that he comes within the
meaning of "goonda". Even otherwise the non-supply of the statement
under Section 161 etc. which are only in support of the contents of F.I.Rs.
did not cause any prejudice to the detenu and as a matter of fact while
making the representation the detenu did not ask for any such document.
B
c
10. The next submission is that though the grounds were prepared
on 15.2.1993 and signed on.16.2.1993 itself, were served on the detenu only
on 20.2.1993 a:nd according to the learned counsel the grounds ought to
have been served alongwith the detention order .and the authority ought
not to have just waited for five days because the same have to be served
"as soon as may be" as required under the statute. Learned counsel for the
petitioner, however, relied on a judgment of this Court in A.K Roy and
Ors. v. Union of India and Ors., {1982] 1 S.C.C. 271, wherein it was observed
that the normal rule is that grounds of detention must be communicated
to the detenu without avoidable delay. It is not in dispute that as provided
D under the Act the grounds can be served within five days. In the counteraffidavit it · is stated that the grounds were served within the period
prescribed. It is not in dispute that as provided under the Act the grounds
were served within five days. In A.K Roy's case it was also observed that
in order to meet practical exigencies of admisintrative affairs, the
authorities are permitted to communicate the grounds of detention not
E
later than -five days ordinarily but not later than 10 days if there are
exceptional circumstances which are to be recorded. It can therefore be
seen that if the grounds are served beyond five days then the reasons for
delay ought to be recorded. The words "as soon as may be" should be
understood in the context in which they are used. If the grounds are served
F
within five days, it must be construed that they are served as soon as
possible. In the counter-affidavit it is stated that the grounds were served
within five days from the date of passing the order.
11. The further submission of the learned counsel for the petitioner
is that the detaining authority . .ts the power to revoke the detention and
G such power is preserved as provided under Section 14 of the Act and that
in the grounds it is not indicated that he can make representation for such
revocation by the detaining authority himself and that on the other hand it
is mentioned in the grounds that the detenu has a right to make representation in writing addressed to the Secretary to the Government through
H the Superintendent of Prisons as expeditiously as possible and such repre-
(
VEERAMANI v. STATE OFT.N. [KJ. REDDY, J.]
631
sentation would duly be considered by the Government and would also be A
placed before the Advisory Board which according to the learned counsel
is a Wrong advice. His further submission is that at any rate when the
representation reached the detaining authority it should have examined the
same and considered whether it could exercise its power under Section 14
and revoke the detention and that failure to do so vitiated the detention B
itself. Section 14(1) of the Tamilnadu Act, which is relevant in the context,
reads thus:
"14. REVOCATION OF DETENTION ORDERS. - (1)
Without prejudice to the provisions of ~tion 15 of Tamil
Nadu General Clauses Act, 1891 (Tamil Nadu Act I of
1891) a detention ordennay, at any time, be revoked or
modified by the State Government, notwithstanding that
the order has been made by an officer mentioned in
Sub-section (2) of section 3".
c
Section 15 of the Tamil Nadu General Clauses Act Teferred to herein D
corresponds to Section 21 of the Central General Clauses Act. Section 11
of the COFEPOSA Act is also the same as Section 14 of the Tamilnadu
Act and it reads thus:
"11. Revocation of detention orders - (1)
Without
prejudice to the provisions of Section 21 of the General
Clauses Act, 1897, (10 of 1897) a detention order may, at
any time, be revoked or modified-
(a) notwithstanding that the order has been made by an
officer of a State Government, by that State Government,
or by the Central Government;
(b) notwithstanding that the order has been made by an
officer of the Central Government or by a State Government, by the Central Government.
(2) The revocation of a detention order shall not bar the
making of another detention order under Section 3 against
the same person".
E
F
G
12. In Ibrahim Bachu Baf '!!.'.J!:!U! Anr. v. State of Gujarat and Others,
[1985] 2 S.C.C. 24, a Bench. of three Judges of this Court considered the H
632
SUPREME COURT REPORTS
[1994) 1 S.C.R.
A
scope of Sectin 11(1) of COFEPOSA Act and observed thus:
B
"That section provides that a power to issue orders includes a power exercisable in the like manner.and subject
to the like sanction and conditions, if any, to add, to
amend, vary or rescind such orders. Under Section 21 of
the General Clauses Act, therefore, the authority making
an order or detention would be entitled to revoke that
order by rescinding it".
Relying on this observation, the learned counsel submitted that the detainC ing authority should have mentioned in the grounds that there is such
power of revocation vested in it and that the detenu could make representation to the detaining authority also.
13. We see no force in this submission. In Ibrahim Bachu Bafan's
D case nothing is mentioned about the right of the detenu to make representation to the detaining authority itself on the basis of the language of
Section 11 of COFEPOSA Act. It is important to note that in COFEPOSA
Act, there is no provision to the effect that when an authorised officer of
the State Government passes detention order, he should report the fact to
E
the State Government alongwith the grounds and that no such order shall
remain in force for 12 days after making thereof unless in the meantime it
has been approved by the State Government. In other words, the approval
of the State Government is not contemplated under COFEPOSA Act and
what all Section 3(2) lays down is that when any order of detention is made
F
by the State Government or by an officer empowered by the State Government, the State Government within 10 days shall forward to the Central
Government a i'eport in respect of the order. There is no provision specifically mentioning that such an order of detention should get the approval
of any of the respective Governments. Therefore the above observations in
Ibrahim Bachu Bafan's case do not apply to cases arising under other
G Preventive Detention Acts including the Tamil Nadu Act where there is a
specific provision for such approval by the Government within 12 days from
the date of making the order and in the instant case where the detention
is made .under the Tamilnadu Act, the State Government approved the
detention. Further in the counter-affidavit it is stated that the question
H whether the detaining authority should consider the representation by itself
y
VEERAMANI v. STATE OFT.N. [KJ. REDDY, J.]
633
did not factually arise inasmuch as no representation either by the detenu A
· or by his wife addressed to it reached within 1,2 days from the date of order
of detention and that in the meanwhile the Government approved the
detention and therefore the question of revocation by the detaining
authority itself after such approval did not arise.
14. Learned counsel for the petitioner, however, submitted that the
power of the detaining authority even after the approval by the Government as required under Section 3(3) of the Tamilnadu Act, does not cease
B
to exist and that to the same effect is the observation in Ibrahim Bachu
Bafan's case.