V.S. Sirpurkar, J.
1. The petitioner herein is the father of one Haleel Rahman alias Kaleel and seeks to challenge the order dated 29-7-1999 passed by the Commissioner of Police, Coimbatore under the provisions of Section 3(2) of the National Security Act, 1980, directing the detention of the said Haleel Rahman alias Kaleel, hereinafter referred to as the detenu for the sake of convenience, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
2. In support of this order, a number of grounds are suggested. It is stated that the said detenu is the sympathizer of the banned organisation called 'Al-Umma' and has established close contacts with Zulfikar Ali alias Appa Kutty alias Thulfukar Ali and Hakkim alias Pavadai Hakkim. It is further suggested in the grounds that one Jahir Hussain has hatched a conspiracy along with the detenu at Palani and Madurai to plant a bomb at the Police Quarters which were being constructed in Coimbatore. This was done as a retaliatory step to the harsh treatment meted out to the Muslim prisoners at Central Prisons in Tamil Nadu. It is suggested that the detenu participated in this conspiracy and proceeded to Madurai on 28-5-1999, met Jahir Hussain and received the bag containing a bomb and xerox copies of hand written pamphlets at the house of Sathakathulla and received further instructions about the bomb and the plans to plant the said bomb at the Police Quarters. He returned to Coimbatore on the night of 28-5-1999 and transported the said bomb to Sheik Mohammed Ummer Sha alias Raju's Engineering Company at Nanjundapuram Ettari along with Abdul Nazeer. It is then suggested that on 30-5-1999, the detenu thereafter took the bag containing the bomb with the help of one Abdul Jaleel to the Police Quarters and planted the same. However, he could not switch on the bomb as he had to escape in haste. The grounds further suggest that the Inspector of Police, Law and Order, B-1 Bazaar Police Station conducted searches under the instructions of the Commissioner of Police at the Police Quarters and detected a Ruf and Tuf rexin bag containing a time devised bomb in a Zinc box with two switches. The said bomb along with the bag was seized and defused and an offence under Section 4(b) of the Explosive Substances Act was registered in B-l Bazaar Police station vide : Crime No. 1163/99. The grounds further suggest that on 30-5-1999, the Inspector of Police, CB CID, Coimbatore, took up the investigation along with the police and arrested the detenu near coconut grove and recorded his confession statement in the presence of witnesses on 3-6-1999. It is suggested that on the basis of the information and the confession statement of the detenu, the house of Sheik Mohammed Ummer Sha alias Raju was searched and a big shopper bag containing bomb and same pamphlets were seized. The detenu, thereafter, was produced before the Judicial Magistrate No. V, Coimbatore on 4-6-1999 and remanded to the judicial custody. His custody was further extended from time to time. The grounds further suggest that the investigation reveals the conspiracy hatched by Jahir Hussain along with the detenu and others at Palani and Madurai to take retaliatory action by planting bomb and that in pursuance of the said conspiracy, the detenu had planted the bomb using the Motor Cycle TN 37-F 4786. It is then suggested that the news about the seizure of the bomb from the new police Quarters had made the general public shell shocked and a feeling of great scare prevailed in the city. It is expressed that had the bomb exploded as per their plan, there would have been loss of lives and damages to the properties in great measure; so also the law and order and the communal harmony would have been at peril. It is then suggested that the detenu's close association with Zulfikar Ali alias Appa Kutty aliasTulfukar Ali, Hakkim alias Pavadai Hakkim and Abdul Nazeer, his visit to Madurai on 26-5-1999 and his visit to Santhakuthulla's house.with Jahir Hussain, his meeting with Santhkathulla, TADA Moosa, Sultan, Ummer Farook and Rizwan alias Ammaani, his receiving the bag containing the bomb and the pamphlets from Jahir Hussain and his further activities of planting the bomb were established from the records. There is also a reference made in the grounds to the evidence gathered in shape of statements of witnesses viz., Manikandan, Muthusamy, Rajan, Shiva-kumar, Ganesen, Philip, Anwardeen, Nazar AH, Biju, Jaffar AH, Nazar, Yusuf and Nagaraja. There is also a reference to the confession statement of the accused persons and also 164,Cr.P.C. Statements of the accused before the Judicial Magistrate suggesting the involvement of the detenu. It is generally on these grounds that the detention has been ordered.
3. The learned counsel for the petitioner Mr. K. A. Jabbar has firstly contended that the detention order itself is vitiated because of the consideration of irrelevant material. According to the learned counsel, the connection of the detenu with 'Al-Umma' and the activities with the 'Al-Umma' were all irrelevant. The learned counsel pointed out that in the decision reported in : 1990CriLJ1311 . (Vashisht Narain Karwariav. State of U. P.) the Apex Court had held that the earlier reports by the Inspecting Officer, regarding the bad character of the detenu having been considered by the detaining authority, the detention order was vitiated. We have gone through the said judgment. We find that the facts are entirely different in Vashisht Narain's case, cited supra. In the first place, that was a case depending upon a single incident in which the detenu had created panic and terror at the place of auction of liquor shops. However, along with the grounds, four documents were also enclosed stating that the detenu was a hardened criminal and he had a gang under his control committing heinous crimes. It was held by the Supreme Court that since the averments touching the character of the detenu were extraneous, they were never referred to in the grounds. However, it was clear that the detaining authority had considered those documents which were sent by the sponsoring authority. It was under these circumstances that it was held that the concerned authority must have been influenced by these documents which were letters sent by the Senior Superintendent of Police, Allahabad. It was found by the Supreme Court that the contents of the letters were quite extraneous to the sole ground relied upon by the authority for detaining the detenu. It is because of that, that the detention was quashed. Such is not the case here. The reference to 'Al-Umma' activities and the connection of the detenu with 'Al-Umma' organisation and his hatching the conspiracy to create terror in pursuance of the objectives of that outlawed organisation cannot be said to be extraneous to the subject of detention. In fact, it was because of this connection that the further incident of planting the bomb has taken place. Under such circumstances, the ruling relied upon by the counsel for the petitioner has no consequence.
4. The learned counsel for the petitioner then suggested that the subjective satisfaction of the detaining authority that there would be a disturbance in the public order is not based on any material and that there was no material on record to suggest that there was actually a disturbance to the public order. On the other hand, the learned counsel pointed out a sentence at the end of paragraph 9 in the grounds which is as follows :-
The law and order and communal harmony would have been at great peril.
The learned counsel says that there was no material on record whatsoever to suggest that there was any panic amongst the public because of the activity on the part of the detenu.
5. The learned Additional Public Prosecutor, however, points out that there are number of statements on record which suggest that there had been panic amongst the public when the news of the planted bomb spread in the public. The Public Prosecutor took us through some of the statements, for example, one such statement of Sivakumar at page 341 of the Paper Book., The Public Prosecutor also made a reference to the other statements on record which suggested that there was actually great public commotion and tension in the area affecting the public order. In that view, it cannot be said that there was no material before the authority to record the subjective satisfaction that the public order was endangered because of the activities of the detenu, if he was allowed to remain free. This contention has to be, therefore, rejected.
6. The learned counsel for the petitioner then suggested that the detenu did not know English and pages 56, 78, 90, 106, 133, 150 and 168 of the documents were in English and their Tamil translations were not supplied. This contention has been raised by the petitioner vide : ground No. 6(x) of the petition. The learned Public Prosecutor points out that first the said documents were the arrest cards. The learned Public Prosecutor points out that there is an endorsement made on all these pages to the effect that these were explained to the detenu in Tamil and then, as if this is not sufficient, on the request having been made for the supply of documents on 20-9-1999, the Tamil translations have actually been supplied on 29-9-1999. If this is so, there could be no question of any illegality having been caused by the detaining authority. The contention of the learned counsel for the petitioner, therefore, is rejected. The learned counsel relied upon the judgment in WP No. 15390 of 1990 (K. Marudhachalam v. The Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi and another) Dt. 23-4-1991 to suggest that the non-supply of the document has been held to be fatal. This has been held by the Division Bench consisting of Nainar Sundaram and Thanikkachalam, JJ. It is found that there was a long delay in the supply of the legible copy sought for by the detenu and the delay was held to be fatal. Such is not the case here. The Tamil translation has been supplied barely within nine days. The contention raised by the petitioner is, therefore, rejected.
7. The learned counsel then made a complaint that there was no sufficient opportunity given to the detenu to prepare for his appearance before the Advisory Board. The learned counsel points out that the detenu used to have the interview with his family members only on 5th and 20th of every month, but this schedule was also changed and the detenu was permitted to have the interview on every alternate Thursday on 12-8-1999 and 26-8-1999. He points out that the detenu was informed orally on 22-8-1999 that the sitting of the Advisory Board would be held barely after three days i.e. on 25-8-1999 where the detenu would be produced. It is complained that no written communication was served on the detenu about the Advisory Board's meeting and that, therefore, the detenu could not contact the family members and make any effective representation before the Advisory Board. The learned Public Prosecutor, however, strongly refuted this contention by pointing out that the intimation from the Government was sent on 17-8-1999 and it was served on the detenu on 19-8-1999. Therefore, the detenu had full one week's time to prepare himself for the Advisory Board meeting to be held on 25-9-1999. It is further pointed out that the detenu did appear before the Advisory Board personally and he did not make any grievance about his not having been given enough time to prepare himself. There is nothing to dispute his claim as there is no counter affidavit against this claim on the part of the detaining authority on oath. There is, therefore, no question of the detenu not getting enough time to prepare himself for the meeting of the Advisory Board. The contention is, therefore, rejected.
8. The learned counsel for the petitioner then urged that though the detenu had asked for certain documents, the said documents were not supplied. According to the learned counsel, he had sought for those documents on 21 -9-1999 in his representation. The said contention is being raised by the petitioner vide : Ground No. 6 (xvi) in the Petition. The learned Public Prosecutor, however, points out that the concerned documents were not at all the relied upon documents, nor were they even the referred documents. In the counter filed by the State Government, it is pointed out that the documents shown in Item Nos. (c) and (e) of Ground No. 6 (xvi) of the Petition i.e., Tamil translations of some pages of the documents and xerox copies of the handwritten pamphlets seized under mahazars dated 3-6-99 and 4-6-99 were actually supplied to the detenu. It is then pointed out that Item Nos. (d), (f) and (g), which were bail order dated 26-8-1999, statement by Jahir Hussain and remand order relating to Jahir Hussain, were the documents which came into existence only after passing of the detention order and were not the relied upon documents by the detaining authority while passing of the order. It is suggested that Item No. (a), which pertains to the bail application, was also not a relied upon document and, therefore, they were not supplied, as regards Item No. (b) of Ground No. 6 (xvi) of the Petition, which pertains to the English translations for the Tamil documents sent to the central Government, it is pointed out that the mother-tongue of the detenu being Tamil, there is no necessity for supplying those documents. The learned Public Prosecutor, therefore, heavily relies on these aspects and points out that such complaint cannot be made by the detenu for the aforementioned reasons. We are completely convinced that the so-called non-supply of those documents can be of no consequence, particularly because those documents either came into existence after the detention or those documents were not relied upon or referred documents at all. For this reason, the argument has to be rejected.
9. Lastly, the learned counsel for the petitioner very strenuously suggested that in this case, the charge-sheet was filed on 15-9-1999 against the detenu. The said charge-sheet was not placed before the State Government which became the detaining authority at the time of confirmation of the order under Section 12 of the National Security Act. The learned counsel submits that the State Government was duty bound to consider this charge-sheet and it not having considered the same, the further detention has become vitiated. The learned counsel points out that though the charge-sheet was filed on 15-9-1999, the confirmation of the detention order was made by the State Government on 25-9-1999. He, therefore, say that there was ample time and yet, this important task was not done. In the result, the confirmation itself is vitiated. In support of his argument, the learned counsel for the petitioner heavily relied upon two judgments of the Division Benches of this Court in W. P. No. 9706 of 1989 (Yusuf v. State of Tamil Nadu Rep. by Additional Secretary to Government, Government of Tamil Nadu, Public (SC) Department, Madras-9) dated 25-4-1990 (S. T. Ramalingam and Kanakraj, JJ.) and H.C.P. No. 603 of 1997 (Peer Mohammed Mohideen v. The State of Tamil Nadu Rep. By the Secretary To Government, Public (SC) Department, Chennai-9) dated 25-2-1998 (T. Jayarama Chouta and V. Bhakthavatsalu, JJ). The learned counsel also heavily relies on the observations of the Supreme Court in the decision reported in : 1981CriLJ1501 (Nand Lal Bajaj v. State of Punjab) as also the observations made in : 1974CriLJ1479 (Haradhan Saha v. State of West Bengal etc.) more particularly in paragraph 27 therein. The learned Public Prosecutor, however, points out that there is no duty on the part of the State Government to consider this charge-sheet particularly which has come into existence after the report of the Advisory Board has been given. The learned Public Prosecutor points out that in the first place, the said charge-sheet by itself is not a relied upon document and could not be so, because the charge-sheet, as such, has come into existence on 15-9-1999. He then points out that all the relevant materials, which were incriminating nature against the detenu, such as statements of the witnesses, mahazars, spot mahazars, confession statements under Section 164 Cr.P.C., arrest memos and other incriminating documents on which the prosecution has relied on have already been supplied to the detenu as those documents were already taken into consideration. The learned Public Prosecutor also argues that the said charge-sheet, therefore, is not a relevant document at all which the State would be duty bound to consider under Section 12 of the National Security Act after the detention order has been approved by the Advisory Board. As regards the two Division Benches judgments referred to earlier the learned Public Prosecutor submits that the factual situation therein was entirely different and as such, the law laid down therein would not be applicable to the present case. He alternatively argues that the law laid down in those two judgments requires a fresh look.
10. We would, therefore, first consider as to whether the so-called charge-sheet can be said to be a relevant document in the first place, which was required to be considered by the State Government before confirming the order. But, before that, we would make a short reference to the above referred judgments in the field.
11. It is indeed held by the Division Bench of this Court in Yusuf s case, cited supra, relying 6n the language of Section 8(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 that the words 'as it thinks fit' take into the ambit and enable the confirming authority to receive any material touching the liberty of the individual even though it emanates after the opinion of the Advisory Board and as such it is the duty of the authorities concerned to place that material before the confirming authority so as to come to the appropriate conclusion as to the period of detention. The Division Bench further holds that since the complaint filed by the authorities against the petitioner for criminal prosecution was not placed before the confirming authority in that case, it had caused prejudice to the rights to the petitioner under the Constitution. In fact, in that decision, the Public Prosecutor had invited the attention of the learned Judges to the decision reported in : 1988CriLJ951 (Vijay Kumar v. Union of India) in which while considering the duty on the part of the State Government while confirming the detention order, the Supreme Court had observed in paragraph 38 as follows at page 959 of Cri LJ :-
38. If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned authority may confirm and continue the detention of the person for such period as it thinks fit. The expression 'as it thinks fit' in Section 8(f) of the Act indicates that the concerned Authority after considering the report of the Advisory Board may fix any period for detention. The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under Section 10. The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even up to the maximum period prescribed. Section 11 provides for revocation of detention order. The detention order may at anytime be revoked or modified. When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act.
The learned Public Prosecutor had laid a stress on this paragraph and pointed out that the opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention for any period even after the maximum period prescribed. It was tried by the Public Prosecutor there to argue that it was not open to the confirming authority to take into consideration the complaint filed by the authority concerned and the State Government had to come to the independent conclusion only on the basis of the materials which were placed before the Advisory Board and the grounds of detention. Strangely, enough, the Public Prosecutor seems to have argued in favour of the restrictions caused by these observations on the State Government's rights to take into consideration any other document, while confirming and continuing the detention. In our opinion, it could not be argued there by the learned Public Prosecutor that it was not open to the confirming authority to take into consideration the complaint filed by the authority concerned and that the State Government could consider only the materials which are placed before the Advisory Board and the grounds of detention. The observations in Vijay Kumar's case, cited supra, do not suggest such an extreme position. It is for this reason that the Division Bench rejected that argument. It has to be borne in mind that in Vijay Kumar's case, the main complaint on behalf of the detenu was that the State Government had not given the reasons while confirming the detention order and, therefore, it was argued before the Apex Court that there was a breach of duty on the part of State. In Vijay Kumar's case, the Supreme Court has clearly found that there is no such duty on the part of the State Government to give any reasons. Before us also, the learned Public Prosecutor heavily relied on Vijay Kumar's case and pointed out that the law laid down in that case has not so far been disturbed. In our opinion, the plain reading of Section 8 and more particularly Sub-section (f) would mean that there is a 'power' in the appropriate Government to confirm the. detention order and to continue the detention for such period as it thinks fit, where the Advisory Board has reported that there was sufficient cause for the detention of the person. Thus, what is created by Section 8 is a power which 'power' has been recognised in Vijay Kumar's case in that very paragraph 38. We reiterate the following lines in that paragraph :
When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act.
We would venture to point out that the section casts no duty on the State Government but clothes it with a power to confirm the detention or at any rate to prescribe the length of the period of detention, in sharp contradistinction to the duty. If there is no duty in the appropriate Government under Section 8, much less created by the statute then, there would be no question of any corresponding right as against the appropriate Government in favour of the detenu. The Apex Court in Vijay Kumar's case has very specifically found that it was in pursuance of that 'power' under Section 8 that the State Government acts and, therefore, it was not necessary nor is it under any duty to articulate special reasons for continuing the detention. The Division Bench, in our opinion, directly did not accept the contention of the Public Prosecutor in that case that it was not open to the confirming authority to take into consideration the complaint filed by the authority concerned and that they had to come to the independent conclusion only on the basis of the materials which were placed before the Advisory Board and the grounds of detention. In our opinion, such an argument could not have been made, as it was not opposite to the question and such an argument could not be a fall out from Vijay Kumar's case. However, we wish to point out that Vijay Kumar's case spells out only a power in favour of the appropriate Government and does not speak in terms of any corresponding right in favour of the detenu as there cannot be any corresponding right to a power under Section 8. In our opinion, therefore, there would be no question of any duty on the part of the authorities to place any materials before the confirming authority. We may point out here that the Division Bench also is silent about the 'concerned authorities' whose duty it is to place any material before the 'confirming authority'. The judgment is silent about both the 'authorities'. We are at pains to point out this, because under the National Security Act, the appropriate Government becomes the authority after the initial period of 12 days which position has been affirmed by the Supreme Court in the latter judgment reported in 1995 SCC (Cri) 643 (Kamleshkumar Ishwardas Patel v. Union of India). There, while comparing the provisions of the COFEPOSA Act vis-a-vis the National Security Act, the Supreme Court has clearly held that the authority which writes the detention order does not remain as such and the appropriate authority itself becomes the detaining authority particularly after the initial period of twelve days is over and after the grounds are supplied to the detenu within the specified period under the provisions of the National Security Act. Therefore, there would be no question of any duty by any other authority than the appropriate Government which has been 'seen by the Division Bench in the aforementioned judgment, because both the authorities i.e., the authority which passes the order and the authority which confirms are merged because of the special provisions in the National Security Act. Section 3(4) of the National Security Act does speak that where any order is made under Section 3(3), a report has to be made by the authority to the State Government and such order shall remain in force only for twelve days unless, in the meantime, it has been approved by the State Government. In the present case, the order has been passed by the Commissioner of Police. Therefore, within twelve days thereafter, it has been approved by the State Government and it is the State Government which has become the confirming authority. No fault, therefore, can be found against the Commissioner of Police in not 'placing' the materials before the confirming authority as the State Government is not expected to 'place' any materials before itself while confirming the detention order. The observations in the Division Bench judgment,.and as such, it is the duty of the authorities concerned to place that material before the confirming authority so as to come to an appropriate conclusion as to the period of detention' cannot now apply in the wake of the law laid down by the Apex Court in Kamleshkumar Ishwardas Patel's case, cited supra, which decision was unfortunately not available to the Division Bench in the year 1989. Even at the cost of repetition, we may then point out that it is only the breach of a duty cast by the constitution or by the Act which would invalidate the detention. Section 8 does not spell out such a duty much less a constitutional duty. All the earlier judgments of the Apex Court speak only in terms of the constitutional duty under Article 22(5) which is a corresponding duty to the right of the detenu to make a representation against his detention. There does not appear to be any such duty to consider the subsequent facts while confirming the detention. At any rate, for the reasons stated above, the law laid down by the earlier Division Bench would not be binding on us in view of the subsequent judgment in Kamleshkumar Ishwardas Patel's case, cited supra.
12. The next judgment relied upon by the learned counsel for the petitioner is recent, but we are afraid that even in this judgment, the law laid down in Kamlesh kumar Ishwardas Patel's case has not been brought to the notice of the learned judges. That apart, the facts in Peer Mohammed Mohideen's case, cited supra, are entirely different. There, the complaint on the basis of the sanction order dated 30-6-1997 was not placed before the Government at the time of confirmation of the detention. Again, we may point out that in both the aforementioned judgments, the detention was under the COFEPOSA Act and not under the National Security Act and, therefore, there was duality of the Detention authorities as has been pointed out in Kamleshkumar Ishwardas Patel's case, cited supra. In the COFEPOSA detention, the authority, which passes the order, remains to be a detaining authority but, in sharp contradistinction, in the National Security Act detentions, the authority which passes the order merges with the appropriate Government. For this reason even the second judgment would not be binding on us. Once that position is obtained, there would be no question of any irregularity having been committed by the detaining authority in not placing the material before the State Government in this case.
13. We would again venture to point out that it is only the breach of a constitutional right under Article 22(5) which would invalidate the detention. We are not able to find any such breach of the constitutional right in favour of the detenu to make a representation. At this stage, we may point out that the law laid down in Haradhan Saha's case, cited supra, is not applicable at all, as the observations in paragraph 27, on which the learned counsel has placed heavy reliance, do not spell out any such duty on the part of the appropriate Government. That is a case where the Court was considering the duty on behalf of the Advisory Board as also the powers of the appropriate Government in Section 14 of the Maintenance of Internal Security Act, 1971. The learned counsel wants us to read a similar duty cast on the Advisory Board vis-a-vis the State Government while confirming the order also. We do not find any such reference in the reported decision. The reported decision is, therefore, of no consequence.
14. Similar is the situation in Nand Lal Bajaj's case, cited supra. There also, the case entirely revolves around the duty of the Advisory Board. It does not even refer to any duty on the part of the appropriate Government, while confirming the order of detention. The ruling is, therefore, of no consequence.
15. In the wake of the situation that this charge-sheet was never a relied upon document which, indeed, could not be deemed to be such a document, it was not bound to be considered by the confirming authority for the reasons stated above. We have already pointed out in Paragraph 9 that the documents, which were relied upon by the detaining authority, included all the statements, spot mahazars, confession statements as also statements under Section 164 Cr.P.C. etc. Thus, all the documents, which supported the involvement of the detenu in the aforementioned crime, were already there before the detaining authority itself. A mere technical charge-sheet, which would be supported only by those documents, therefore, could not spell out any different factual position. Therefore, it cannot be said to be a relevant document as was tried to be argued by the counsel for the petitioner. The learned counsel for the petitioner could not show as to which precise document along with the charge-sheet was not there for the consideration of the detaining authority. Under such circumstances, the contention of the learned counsel for the petitioner in this behalf must be rejected.
16. In the result, we are of the opinion that the Habeas Corpus petition has no merits and deserves to be dismissed. We accordingly dismiss the petition.