Shyna Shyni Shoba Rajee and Others Vs the Secretary Government of India New Delhi and Others - Citation 1188225 - Court Judgment

Judgment:

(Prayer: Habeas Corpus Petition No.2268 of 2015: This petition filed under Article 226 of the Constitution of India, praying for calling of entire records relating to the order of detention passed by the 3rd respondent in Crl.M.P.No.4/NSA/E4 dated 16.07.2015 detaining the petitioner/detenue-Shyna @ Shyni @ Shoba @ Rajee, aged about 42 years, W/o. Roopesh @ Prasanth @ Praveen @ Prakash @ Ruban @ Kariyan and for issuance of a writ setting aside the said order of detention and to set the petitioner/detenue, who has been now confirmed at Central Prison, Coimbatore, at liberty forthwith.)

Common Order:

S. Nagamuthu, J.

1. In all these Habeas Corpus Petitions, the preventive detention orders passed under sub-section (3) of Section 3 of The National Security Act, 1980 [Central Act 65 of 1980], by the 3rd respondent are under challenge.

2.0 The circumstances under which these detention orders came to be issued by the 3rd respondent are, in brief, as follows:-

2.1. On 04.05.2015 at about 03.00 p.m. one Mr.P.Chandra Mohan, the Inspector of Police, Q Branch CID, Coimbatore District, allegedly received a reliable information from an informant and based on the said information, he rushed to a bakery shop known as, "R.C. Bakery Shop" at Annur Road, Karumathampatti along with follow police personnel and the Village Administrative Officer of Karumathampatti. They reached the said shop, at 03.45 p.m. In the shop, one Shyna @ Shyni @ Shoba @ Rajee [petitioner in H.C.P.No.2268 of 2015] and her four associates (1) Roopesh @ Prasanth @ Praveen @ Prakash @ Ruban @ Kariyan [petitioner in HCP No.2271 of 2015], aged 45 years, S/o.Ramachandran, (2) Kannan @ Senthil @ Kumar @ Minnal, [petitioner in HCP No.2269 of 2015] aged 46 years, Son of Sankaran; (3) Veeramani @ Natraj @ Sunilkumar @ Sara @ Eswar @ Vajramani @ Riswan [petitioner in HCP No.2270 of 2015], aged 60 years, Son of Chinnapillai and (4) Anup Mathew George [petitioner in HCP No.2337 of 2015], aged 32 years Son of George were sitting inside.

2.2. The police party and the Village Administrative Officer of Karumathampatti took cover under the guise of customers of the aforesaid bakery, sat around the five persons, who according to the respondents, belong to Communist Party of India (Maoist). They over heard the conversation held among the five maoists. From their conversation it came to light that they were conspiring for sedition by recruiting youth from Tamilnadu, Kerala and Karnataka to strengthen the armed squad of Communist Party of India (Maoist) in the tri-junction area of Tamilnadu, Kerala and Karnataka States and collection of funds for furthering their terrorist activities. The above said Inspector of Police with the assistance of the police party arrested all the above five persons at 04.30 p.m. since according to the Inspector of Police, they had committed crimes. At the time of arrest, they raised slogans in vernacular Tamil language "khnthaprk; $pe;jhghj;. nghyp!; muh$fk; xHpf. kf;fs; nghuhl;lk; bty;f. murpw;F vjpuhd Ma[j nghuhl;lk; bty;f. Ma[jg; nghuhl;lnk kf;fspd; mjpfhuhj;jpw;fhd tHp" which means in English "Up up Maoism, down down police atrocities! Success for people's war! Success for armed struggle against the Government! Armed struggle alone is the only way-out for the people's power!". The Inspector of Police with the help of the other police men brought them to Q Branch CID, Office at Coimbatore, with their belongings at 05.00 p.m. At the police station , search was conducted on the detenu(e)s. From them, cellphones, pamphlets, letters, incriminating materials and documents from each detenu(e) were recovered under individual mahazar. A cash of Rs.20,000/- was also recovered from Shyna @ Shyni @ Shoba @ Rajee and cash of Rs.16,500/- was recovered from the other detenus.

2.3. In connection with the above occurrence, a case was registered in Crime No.1 of 2015 under Sections 120-B r/w 124-A of IPC and Section 20 of the Unlawful Activities (Prevention) Act, 1967. During the course of investigation, these accused made voluntary confessions individually admitting their involvement in the crime. The investigation revealed that the detenue Shyna @ Shyni @ Shoba @ Rajee and Anup Mathew George are the members of Kerala State Committee of CPI (Maoist) and they were assisting in the activities of Western Ghats Special Zonal Committee of CPI (Maoist) and the others namely, Roopesh @ Prasanth @ Praveen @ Prakash @ Ruban @ Kariyan, Kannan @ Senthil @ Kumar @ Minnal, Veeramani @ Natraj @ Sunilkumar @ Sara @ Eswar @ Vajramani @ Riswan are the members of Western Ghats Special Zonal Committee representing Kerala, Tamil Nadu and Karnataka respectively and it also came to light during the investigation that Western Ghats Special Zonal Committee was exclusively formed by the CPI (Maoist) to further the terrorist activities in the tri-junction areas, i.e., the bordering districts of Tamil Nadu, Kerala and Karnataka. The detenue Shyna @ Shyni @ Shoba @ Rajee has acted as a co-coordinator among the members of Western Ghats Special Zonal Committee of CPI (Maoist) and rendered her assistance in the terrorist activities that took place at tri-junction areas. The detenu Roopesh @ Prasanth @ Praveen @ Prakash @ Ruban @ Kariyan is the husband of the detenue Shyna @ Shyni @ Shoba @ Rajee. They were living together at Tiruppur City by concealing their original names. The detenu Roopesh @ Prasanth @ Praveen @ Prakash @ Ruban @ Kariyan went to Tiruppur for some time and had come out of the forest area from the armed squad. The detenue Shyna @ Shyni @ Shoba @ Rajee actively participated continuously in the matter of collection of funds, recruitment of youth and sending the youths to armed squads of Communist Party of India (Maoist) functioning at tri-junction areas. She also assisted her associates to carry out the party activities at selected places.

2.4. It is further alleged that these detenu(e)s were involved in the underground activities of CPI (Maoist) for preparing people to carry out armed revolution to overthrow the present democratic Government in the tri-junction area of Tamil Nadu, Kerala and Karnataka. These detenu(e)s had used different alias names at different places to conceal their identity. The Maoist party to which these detenu(e)s belong to conducted Politico Military campaign at tri-junction areas in view of 10th Anniversary of formation of Communist Party of India (Maoist) during the period from December, 2014 to March, 2015. During the politico military campaign, their Maoist party members attacked an administrative office of one Nitta Gelatin Company at Ernakulam, one Agraharam Tourist Home at Thirunelli of Wayanad District, a forest office at Attapadi of Palkkad District, a check post of Forest Department at Kunjam of Wayanad District, two restaurants viz., KFC and Mcdonalds at Palakkad, a quarry office of New Bharat Stone Crusher at Chekkery of Kannur District and made attack on the Thunder Bolt, Special Police Force of Kerala State Police. It is also further alleged that for the purpose of making attack on these establishments, they had formed armed squads and concealed these squads in the forest area of tri-junction area of Kerala, Tamil Nadu and Karnataka. The armed squad of CPI (Maoist) visited on several occasions, the tribal villages and received rice, vegetables and other eatables by threatening the tribal people. The CPI (Maoist) had involved in the process of forming a red-corridor in the forest area of Kerala, Karnataka and Tamil Nadu through armed struggle by mobilizing the tribal population. The detenue Shyna @ Shyni @ Shoba @ Rajee as a Kerala State Committee Member of CPI (Maoist) has involved clandestinely in all the above mentioned terrorist activities of CPI (Maoist) by her underground work.

2.5. It also came to light that these detenu(e)s had distributed a bulletin in the name of "Kaattu Thee"in Malayalam to spread their ideology among general public. They had also planned extortion activity in urban areas in the name of "Money Action"to manage their party expenditure. She and her associates carried out all these terrorist activities to show their protest against the democratic Governments of Kerala, Karnataka and Tamil Nadu established by well settled law and thus created a fear in the minds of general public of these three states. Their activities in the tri-junction and other areas affected the normal life and mobility of the general public in these three states. The said case is still under investigation.

3. Based on the above allegations and on considering the records placed before him, the 3rd respondent passed the detention orders under challenge. It is also brought to our notice that the period of detention of these detenu(e)s has been subsequently extended periodically. Challenging the orders of detention, the detenu(e)s are before this court with these habeas corpus petitions.

4. In all these petitions almost common grounds have been raised and arguments were also advanced in common. The grounds are as follows:-

(i) The grounds of detention are so vague and the detenu(e)s could not formulate any ground of defence to attack the order of detention and the order is bereft of particulars to answer.

(ii) The detenu(e)s were arrested without informing the grounds of arrest and the case has been falsely foisted against them.

(iii) Para 3 of the detention orders are very vague and it could never be considered as materials to detain a person under the National Security Act.

(iv) The grounds of detention revealed that the allegations relate only to law and order problem and it will never be considered as an act affecting the public order.

(v) The so-called terrorist activities as enumerated in the orders of detention are the brain children of the sponsoring authority to elevate the detaining authority affecting public order.

(vi) There was no compelling necessity to detain the detenu(e)s under the National Security Act.

(vii) The bail pleas made by the detenu(e)s were rejected and there was no imminent possibility of the release of the detenu(e) s in the near future.

(viii) The facts fo the similar case particulars are not similar to the case on hand.

(ix) The representations made by the detenu(e)s were not considered by the respondents 1 to 3 at all.

(x) The arrest of detenu(e)s were not at all informed to their relatives.

(xi) The delay of two months in passing the orders of detention after the arrest vitiates the orders of detention.

(xii) The detaining authority had no territorial jurisdiction to pass the orders of detention.

5. In the counter filed by the respondents 2 and 3, the facts of the case under which these detenu(e)s were arrested and the circumstances under which the detenu(e)s were detained under the National Security Act, have been very elaborately narrated. It is stated that the detaining authority had taken into consideration all the records placed before it, more particularly, the First Information Report, the confession statements of the detenu(e)s , materials seized from them and the other records in the case. It is further stated that the activities of the detenu(e)s are not only prejudicial to the maintenance of public order but also prejudicial to the security of the Sate. It is further contended that the detention orders are valid in the eye of law.

6. So far as the information regarding the arrest of these detenu(e)s is concerned, it is contended in para 6 of the counter that at the time of arrest, the detenu(e)s were informed of the grounds of arrest by the Inspector of Police. It is specifically denied that the activities of the detenu(e)s could make out only a law and order problem. It is stated that in all likelihood the activities of the detenu(e)s are prejudicial to the maintenance of public order and also prejudicial to the security of the State and therefore, there was impelling necessity to pass the orders of detention. The allegation that a false case has been foisted against the detenu(e)s has been denied in the counter. The facts which came to light during the investigation have been elaborately narrated in para 8 of the counter.

7. It is further stated in para 8 of the counter that the Government of India in exercise of the power conferred by sub-section (1) of Section 35 of the Unlawful Activities (Prevention) Act, 1967 , had declared the Communist Party of India (Maoist) and its formation and front organisations as Terrorist Organisation on 22.06.2009. The said Communist Party of India (Maoist) is also called as "CPI (Maoist)". It is further stated that the detaining authority cannot be attributed with any motive to pass these orders of detention.

8. Regarding the imminent possibility of the detenu(e)s being release don bail, it is stated in para 9 of the counter that though the detenu(e)s were in judicial custody they were taking constructive efforts to come out on bail. Though bails applications were earlier dismissed, the detenu(e)s were taking further steps to move applications for bail. In similar cases, earlier bail was been granted by the courts. Therefore, the detaining authority had reason to believe that there was imminent possibility of the detenu(e)s coming out on bail. So far as the delay in considering the representation is concerned, in para 12 of the counter, it is stated as follows:-

Representation of the detenue, dated 'Nil"addressed to the Collector, Coimbatore District and copy marked to the Government was received by the Government through the Superintendent, Central Prison, Coimbatore on	:	06.08.2015
Parawar remarks called for from the Detaining Authority on	:	07.08.2015
Saturday	:	08.08.2015
Sunday	:	09.08.2015
Reminded on	:	13.08.2015
Remarks received from the detaining authority on	:	14.08.2015
Circulation note was put up on	:	14.08.2015
Independence Day Holiday	:	15.08.2015
Sunday	:	16.08.2015
Under Secretary to Government Public (Law and Order) Department considered the representation on	:	17.08.2015
Additional Secretary to Government, Public (Law and Order) Department considered the representation on	:	18.08.2015
Principal Secretary to Government Public Department, considered the representation on	:	18.08.2015
Secretary to Government, Law Department considered the representation on	:	19.08.2015
Chief Secretary to Government, considered the representation on	:	21.08.2015
Saturday	:	22.08.2015
Sunday	:	23.08.2015
Hon'ble Minister for Law considered the representation on	:	24.08.2015
Hon'ble Chief Minister considered and rejected the representation on	:	25.08.2015
Reply sent to the detenu on	:	25.08.2015
Detenu received the letter under acknowledgment on	:	27.08.2015

Thus, according to the respondents 2 and 3, there was no delay in considering the representations.

9. In para 13 of the counter, it is stated as follows:-

"As far as averments made in ground (j) of the affidavit are concerned, it is submitted that the representation dated nil of the detenu addressed to the District Collector, Coimbatore and a copy marked to the 2nd respondent was received fromt he Superintendent of Prison, Central Prison, Coimbatore on 05.08.2015. Further a copy of the representation dated nil of the detenu was received from the 2nd respondent vide Government letter No.3255/Law and Order-G/2015-1, dated 07.08.2015. Since, the contents of both the representations have been sent to 2nd respondent on 14.08.2015. The 2nd respondent considered the representation and a reply in this regard was sent to the detenu vide Government letter No.3255/Law and Order-G/2015-4, dated 25.08.2015 and the same has been acknowledged by the detenu on 27.08.2015. Hence, the averments of the petitioner are incorrect, baseless and unsustainable."

10. So far as information to the family members regarding the arrest of the detenu(e)s is concerned, it is stated that immediately after the arrest on 04.05.2015 , the respective relatives of the detenu(e)s were informed of the arrest of the detenu(e)s. The details of the persons to whom such information were passed on have also been set out in the counter.

11. So far as the delay of two months in passing the orders of detention is concerned, it is stated that immediate steps were taken by the sponsoring authority for detaining these detenu(e)s under the National Security Act. Since the investigation had to be made simultaneously collecting materials and to place the same before the authority it took about two months. Thus, the delay, according to the respondents, has not caused any prejudice to the detenu(e)s. Thus, according to the 3rd respondent, the orders of detention do not require any interference at the hands of this court.

12. The 1st respondent - Under Secretary, Ministry of Home Affairs [Department of Internal Security], has filed a separate counter wherein he has stated that a copy of the representation and the petition without para wise comments was forwarded to the Secretary, Ministry of Home Affairs, New Delhi by the Government of Tamil Nadu in letter No.3252/L and O.G./2015-2 dated 07.08.2015 and the same was received by the department only on 18.08.2015. Para wise remarks were received on 25.08.2015 and the same was forwarded to the Joint Secretary and the Joint Secretary after perusal of the records forwarded the same to the Home Secretary on 28.08.2015. THe home Secretary rejected the representation on 01.09.2015. Then, the file was sent back to the Joint Secretary, who, in turn, sent the same to the Home Secretary, Government of Tamil Nadu, Chennai. Thereafter, the rejection order was communicated through wireless message to the Superintendent of Central Prison, Coimbatore so as to be informed to the detenu(e)s concerned. Then, a copy of the wireless message was also sent on 03.09.2015 by post to the detenu(e)s with a request to serve the copy meant for the detenue and forward the acknowledgement from the detenu to the Ministry. It is further stated that as required under Section 3(5) of the National Security aCt, 1980, a report was received from the Government of Tamil Nadu through letter dated 27.07.2015 which was received by the Central Government on 05.08.2015. The same was put up on 06.08.2015 for consideration of the Joint Secretary (Security) and the Joint Secretary , in turn, took note of the report under Section 3(5) of the National Security Act and felt that there was no reason to interfere with the said orders of detention. Thus, according to the 1st respondent also, the orders of detention do not require any interference.

13. The respondents 2 and 3 filed their additional counters. The details of the dates during which representations were received and dealt with by various authorities and also the details with regard to the ultimate rejection of the representations have been given in an attempt to explain that there was no delay in considering the representations.

14. The learned counsel for the detenu(e)s would reiterate the grounds raised in the habeas corpus petitions elaborately and pray for setting aside the orders of detention.

15. The learned State Public Prosecutor Mr.S.Shanmugha velayudham appearing for the respondents 2 and 3/State would vehemently oppose these habeas corpus petitions. He would reiterate the contentions raised in the counter affidavit originally filed by the respondents 2 and 3 and their additional counter affidavits. The standing counsel for the Central Government would also oppose these habeas corpus petitions. He also elaborated the facts set out in the counter affidavit filed by the 1st respondent.

16. We have considered all the above submissions and also perused the records carefully.

17. As projected by the respondents, the detenu(e)s are active members of the CPI (Maoist) organization which is, admittedly, a banned organisation under sub-section (1) of Section 35 of the Unlawful Activities (Prevention) Act, 1967 [Vide order of the Government of India dated 22.06.2009]. No where it is stated in the grounds raised before this court that they are not the members of the said organisation, whereas, from the conversations of these detenu(e)s in the bakery shop which was over heard by the Inspector of Police, it is crystal clear that they are members of the said organisation. There are lot of other materials also placed which would clearly make out that these detenu(e)s are the members of the said banned organisation. This conclusion of ours is only prima facie and the same is for the purpose of disposal of these habeas corpus petitions and not a final adjudication as to whether the detenu(e)s are the members of the said banned organisation or not as it is for the appropriate court to decide the said issue on evidence during trial.

18. Now, turning to the other grounds raised by these detenu(e)s, it is contended that the grounds of detention are very vague and the facts stated by the respondents do not make out any valid ground justifying the orders of detention. In our considered view, there is no force at all in this argument because a perusal of the available records would go to show that specific instances have been clearly mentioned about the involvement of these detenu(e)s in the activities of banned organisation, more particularly, the attack made on various establishments including the Special Police Force of Kerala State Police. Thus, specific grounds with all details have been furnished upon which only the detention orders have been passed. Therefore, the first ground raised by these detenu(e)s is rejected.

19. The next ground is that the arrest of these detenu(e)s were not informed to them duly by the officer who arrested them. In this ground also, we do not find any substance inasmuch as the counter affidavit filed by the respondents 2 and 3 which is duly supported by the documents produced before us would go to show that the grounds of arrest were duly intimated not only to the detenu(e)s but also to their close relatives as required under law. Therefore, this ground is also rejected.

20. Next, it is contended that the grounds set out in the detention orders cannot be the valid grounds making out an impelling necessity to pass these detention orders. As we have already pointed out, CPI (Maoist) is a banned organisation which, according to the respondents, was involved in terrorist activities in the tri-junction areas namely bordering districts of Tamil Nadu, Keral and Karnataka. The detenu(e)s, as active members of the said organisation, were involved in underground activities for preparing people to carry out armed revolution to over throw the democratic governments in the tri-junction areas and they conducted politico military campaign in which the members of the said organisation attacked the Administrative Office of Nitta Gelatin Company at Ernakulam, Agraharam Tourist Home at Thirunelli of Wayanad District, a Forest Office at Attapadi of Palkkad District, a Check Post of Forest Department at Kunjam of Wayanad District, two restaurants and also a police establishment. These allegations are supported by materials collected during investigation, more particularly, the confessions of these detenu(e)s. Thus, it cannot be said that these materials are insufficient to detain the detenu(e)s under the National Security Act. Therefore, this ground is also rejected.

21. It is further contended that the above allegations would make out only a law and order problem and the same could not be considered as an act affecting the public order. As we have already stated, the very fact that CPI (Maoist) is a terrorist organisation and the same has been banned and the very fact that the detenu(e)s are the members of the said organisation indulging in under ground activities to over throw the government established in democratic manner are all sufficient to hold that it is not a simple law and order problem, but, it is a problem affecting the public order also and thus, this ground is also liable to be rejected.

22. It is further contended that the activities enumerated int he orders of detention are brain children of the sponsoring authority to elevate the detaining authority. This contention, in our considered view, is also baseless inasmuch as the grounds of detention as enumerated by the detaining authority are fully supported by materials collected during the investigation of the case. Thus, there was compelling necessity to detain these detenu(e)s under the National Security Act. We find agreement in the argument of the learned Public Prosecutor in this regard.

23. It is next contended that there was no imminent possibility of these detenu(e)s coming out on bail in the near future. It is seen from the records that the detenu(e)s attempted to come out on bail by making applications before the court concerned. Of course, it is true that the bail applications were dismissed. But the detenu(e)s did not stop with that, as they were making hectic efforts to come out on bail by making necessary applications. The detaining authority had considered the fact that in cases involving similar facts, the courts have granted bail for the accused. It was only on comparing the facts of such similar case and the other circumstances, the detaining authority had come to the right conclusion that there was imminent possibility of the detenu(e)s coming out on bail. Thus, on the fullest satisfaction that there was imminent possibility of the detenu(e)s coming out on bail and on the further satisfaction that if they are so released on bail, it would not be possible to prevent them from indulging in similar activities, the detaining authority has passed these detention orders in which we do not find any infirmity at all.

24. The learned counsel for the detenu(e)s by referring to yet another ground raised in the petitions would submit that the representations made by the detenu(e)s against the detention orders were not considered properly by the respondents 1 to 3. But, in the counter filed filed before this court in para 12 , the details of the representations given, the dates on which they were considered at various levels and finally, the fact that the Hon'ble Chief Minister had rejected the representations on 25.08.2015, have been clearly stated. The records placed before us reflect the same. Thus, in our considered view, the representations were duly considered by the respondents 1 to 3 and the same were rejected by the Hon'ble Chief Minister on valid grounds. Thus, there is no substance in the said ground raised by the detenu(e)s.

25. It is also contended that the detention orders were made after two months of arrest of these detenu(e)s which according to them would go to show that there was no impelling necessity to pass the said orders of detention. In this contention also, we do not find any substance for, after the arrest of these detenu(e)s, the investigation had to be conducted in a speedy manner and only after having come to know that the detenu(e)s were taking steps to come out on bail, the sponsoring authority had placed the papers before the detaining authority with the collected evidences. Thus, as soon as the sponsoring authority realized that the detenu(e)s were likely to be released on bail imminently and if they come out on bail, their activities could not be curbed, the papers were placed before the detaining authority and the detaining authority, in turn, had passed the detention orders on full application of mind. Thus, the so-called delay of two months in passing the detention orders is not a delay at all in the eye of law.

26. The learned counsel for the detenu(e)s would contend that there was no subjective satisfaction in respect of the impelling necessity to detain the detenu(e)s under the National Security Act. The learned counsel would make reliance on the judgements of the Hon'ble Supreme Court in Khudiram Das v. State of West Bengal, (1975) 2 SCC 81 and Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 and various other judgements to substantiate the said contention. Regarding the said legal position, we have got no doubt. But, as we have already dealt with elaborately, the materials placed by the sponsoring authority have been clearly scrutinized by the detaining authority which is reflected in the detention orders themselves and only after having the fullest satisfaction that there was impelling necessity to detain these detenu(e)s under the National Security Act, the detaining authority has passed the orders of detention. Thus, the contention that there was no application of mind on the part of the detaining authority deserves only to be rejected.

27. In view of the foregoing discussions, we do not find any valid ground to interfere with the impugned orders of detention. In our considered view, the detention orders under challenge are perfectly valid in law which do not require any interference at the hands of this court.

28. In the result, all the Habeas Corpus Petitions fail and the same are accordingly dismissed.

Court	Chennai High Court
Decided On	Sep-21-2016
Case Number	Habeas Corpus Petition Nos. 2268 to 2271 & 2337 of 2015
Judge	S. Nagamuthu &Amp; V. Bharathidasan
Appellant	Shyna @ Shyni @ Shoba @ Rajee and Others
Respondent	The Secretary, Government of India, New Delhi and Others

Shyna @ Shyni @ Shoba @ Rajee and Others Vs. The Secretary, Government of India, New Delhi and Others - Court Judgment