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REPORTABLE IN THE SUPREME COURT OF INDIA

       CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO. 4815    OF 2013     (ARISING OUT OF SLP(C) NO.32704 OF 2010)

N. SENGODAN        … APPELLANT

VERUS

SECRETARY TO GOVERNMENT, HOME (PROHIBITION & EXCISE) DEPARTMENT, CHENNAI AND OTHERS            … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

2. In this appeal the judgment dated 16th  August, 2010  

passed by the Division Bench of the Madras High Court in  

W.A. No.1426 of 2010 is under challenge. By the impugned  

judgment the Division Bench u­pheld the judgment dated 27th  

April, 2010 passed by the learned Single Judge in W.P.  

No.1243  of 2003  and  dismissed the appeal, affirming  the  

finding recorded by the learned Single Judge.  The learned  

Single Judge by his judgment dismissed the writ petition

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preferred by the appellant claiming the damages and praying  

for issuance of a writ of mandamus directing the  

respondents to pay him jointly and severally a sum of  

Rs.10,00,000/­   for his alleged illegal detention and  

confinement.    

3. The relevant facts of the case are as follows:

The appellant is an Ex­service man who served in the  

Indian Army for a period of seven years; later he joined in  

the Tamil Nadu Subordinate Police Services and retired from  

the service on 21st October, 1997 as Inspector of Police at  

Attur Police Station, Salem District.   The 2nd respondent  

by name V. Jegannathan, is a former Inspector General and  

Commissioner of Police, Salem City and the 3rd respondent,  

Ramasamy, is former Inspector of Police, Fairlands Police  

Station, Salem City. The 4th respondent, E.Gopi, is former  

Inspector of Police, Sooramangalam Police Station, Salem  

City on whose complaint a case in Crime No.11/98 was  

registered against the appellant under Section 3 of  the  

Police (Incitement to Disaffection) Act, 1922 and Section  

505(1)(b) of  the Indian Penal Code.

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4. According to the appellant, he had served both the  

Indian Army and State Police Service with devotion and had  

the privilege to win the appreciation of his superior  

officers in both the capacities. He is a family man and his  

wife is working as Senior Lecturer in the Government Arts  

College, Salem. His sons having completed their seven year  

course in Medicine in Russia are doing their internship in  

the Government Kilpauk Medical College, Chennai.  They are  

all living together as a happy close knit family sharing  

their joys and sorrows with one another. Besides, the  

appellant has wide relations as well as friends who are all  

having high esteem on him and his family. The version of  

the appellant is that after his retirement, he had the  

opportunity to realize the difficulties encountered by each  

and every  member of the police force in Tamil Nadu and had  

voiced the merits of forming an Association through which  

demands of members of the police force could be legally  

made to set right the wrongs committed to them.  Further,  

according to the appellant, he neither indulge in any  

act/acts leading to any resentment in the mind of any  

personnel in the police service nor was propagating  

anything seditious.  

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While so, Tamil Daily Malai Murasu dated 18th December,  

1997, published a news item allegedly authored by the  

appellant. Based on the said news item, on 6th  January,  

1998, the 3rd respondent, Ramasamy, the then Inspector of  

Police, Fairlands Police Station, Salem City had registered  

a case in Crime No.11/98 for offence under Section 3 of the  

Police (Incitement to  Disaffection) Act, 1922 and Section  

505(1)(b) of the Indian Penal Code. Further, on 7th January,  

1998 the appellant was arrested by the 3rd respondent and  

remanded to judicial custody.  He was remanded in judicial  

custody by the Judicial Magistrate No.V, Salem in  

connection with the above said case and lodged in Central  

Prison, Salem for a period of two month. It is also alleged  

that while the appellant was confined in Central Prison,  

Salem the Superintendent, Central Prison, Salem served on  

him a detention order in C.M.P.No.04/Goonda/Salem City/98,  

dated 9th  January, 1998 passed by 2nd  respondent the then  

Inspector General and Commissioner of Police, Salem City.  

By the said order, the Commissioner of Police, Salem City  

detained the appellant under “The Prevention of Dangerous  

Activities of Bootleggers, Drug­Offenders, Forest  

Offenders, Goondas, Immoral Traffic Offenders and Slum­

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grabbers Act, 1982(hereinafter referred to as the 'Tamil  

Nadu Act 14 of 1982')”.   The said order appears to be  

passed by the 2nd respondent based on the proposal submitted  

by 3rd respondent.  

5. On 9th  February, 1998, the appellant made a written  

representation to the Secretary to Government of Tamil Nadu  

and sent it through the Superintendent, Central Prison,  

Salem.  He raised several pleas in the representation.  The  

Advisory Board established under the provisions of the  

Tamil Nadu Act 14 of 1982, exercising its powers under the  

provisions of sub­section (2) of Section 12 of the said Act  

and addressing itself to all the facts and the connected  

records, having found nothing recommended for the  

revocation of detention order of the appellant. The  

Governor of Tamil Nadu, in view of the recommendation,  

revoked the order of detention and directed that the  

appellant be released forthwith by the Government Order  

Rt.No.636, Prohibition and Excise(XIV) Department, dated 3rd  

March, 1998.

6. According to the appellant, the above detention order  

was clamped by the respondents against him with a malafide  

intention of detaining the appellant under the Tamil Nadu

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Act 14 of 1982 with a view to punish him. The 3rd  

respondent, Ramasamy, the then Inspector of Police,  

Fairlands Police Station had registered the said complaint  

given by 4th  respondent Gopi in his Police Station Crime  

No.11/98 and the appellant was arrested in connection with  

the said crime and subsequently detained under the Tamil  

Nadu Act 14 of 1982 for a period of two months till he was  

released by the order of the Advisory Board revoking the  

order of detention dated 3rd  March, 1998.   It is alleged  

that after the release from prison, there was no action  

from the part of the 3rd respondent for a long time and no  

charge sheet was filed against the appellant in the Police  

Station Crime No.11/98. Ultimately, a final report was  

filed which was received by the Judicial Magistrate No.V,  

Salem Court in the month of June, 2001 and the same has  

been accepted by the learned Magistrate  and  numbered as  

R.C.S.NO.19/2001 and the same was recorded.  The appellant  

received the copy of the same on 29th June, 2001.   

7. Further, the case of the appellant is that since he was  

subjected to harassment particularly by the 2nd respondent,  

V. Jegannathan, the then Inspector General and Commissioner  

of Police, Salem City; the 3rd respondent, the then

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Inspector of Police, Fairlands Police Station by undergoing  

imprisonment as a remand prisoner and as a detenu in  

Central Prison, Salem on the basis of a false case  

registered against him with the object of destroying his  

reputation and image.  The appellant was very much affected  

both in body and mind. The appellant was also subjected to  

mental cruelty and was also physically affected as a result  

of the confinement in Central Prison, Salem. The family  

members of the appellant have also suffered physically and  

mentally due to malafide acts of the 2nd and 4th  

respondents.  The Ist respondent has been arrayed as one of  

the respondents in view of the prayer for damages sought  

for in the writ petition.

8. The appellant served lawyer's notice dated 27th  June,  

2002 to all the respondents claiming damages in terms of  

money for a sum of Rs.10,00,000/­.  The 2nd respondent, V.  

Jegannathan, the then Inspector General of Police forwarded  

a reply dated Ist July, 2002 to the lawyer's notice  

claiming immunity to his actions.  The 4th respondent, Gopi  

also forwarded a reply by letter dated 24th  July, 2002  

claiming innocent and denying the allegation that he had

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any malafide intention to foist a case against him. No  

reply has been filed by both the 1st and 3rd respondents.  

9. The 2nd respondent, V. Jegannathan filed a counter­

affidavit in the writ petition and took a plea that the  

appellant falsely claimed to be the convener of Tamil Nadu  

Police Employees Association and that in that capacity he  

had been visiting several Districts and insisting the  

members of the disciplined police force to join the said  

Association so as to raise their voice against the  

Government. It was also stated that the appellant submitted  

a representation dated 9th  February, 1998 in which he  

tendered apology for his conduct and gave assurance that he  

will not  indulge in any activity  in future and  on that  

basis prayed for revocation of detention order.   The 2nd  

respondent forwarded the same to the Chief Office, Chennai  

with his report. The 3rd respondent was present before the  

Advisory Board when the matter came up for review and he  

presented a copy of the representation of the appellant.  

Only on the basis of the undertaking of the appellant that  

he will not indulge in any such activity in future, the  

Advisory Board ordered the release of the appellant.   It  

was alleged that the appellant had willfully suppressed the

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material fact that he tendered an apology and gave in  

writing an undertaking that he will not indulge in any such  

activity in future.   

10. Further, according to the 2nd respondent, the order of  

detention issued by him was confirmed by the Government of  

Tamil Nadu in G.O.Rt.No.195, Prohibition and Excise  

Department dated 20th  January, 1998. Before issuing the  

detention order on the basis of the report of the 3rd  

respondent, the concerned legal advisor was consulted by  

the 2nd respondent and only after he gave his opinion that  

the activities of the appellant would attract the  

provisions of the Tamil Nadu Act 14 of 1982 the detention  

order was issued.   Therefore, according to the 2nd  

respondent,  he issued the detention  order in a  bonafide  

manner  and in exercise of power vested  with him in his  

official capacity.  The 2nd respondent further pleaded that  

he had no malafide intention and only on the basis of  

materials placed before him and being satisfied that it is  

just and essential to detain the appellant under the Tamil  

Nadu Act 14 of 1982 he issued the detention order in a  

bonafide manner.  

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11. The Ist respondent, the Secretary to the Government,  

Home (Prohibition & Excise) Department, Government of Tamil  

Nadu filed a separate affidavit in the writ petition. He  

has also taken pleas that the appellant falsely claimed to  

be the convener of the Tamil Nadu Police Employees  

Association and that in that capacity he had been visiting  

several Districts and insisting the members of the  

disciplined police force to join the said Association so as  

to raise their voice against the Government.  It is stated  

that before issuing the detention order on the basis of the  

report of the 3rd respondent, the legal advisor was  

consulted by the 2nd respondent and only after getting his  

opinion; the detention order was issued by G.O.Rt.No.195,  

Prohibition & Excise Department, dated 20th  January, 1998.  

The Ist respondent has taken a similar plea that the  

appellant has wilfully suppressed the material fact that he  

gave an undertaking in writing that he will not indulge in  

any such activity in future and that the respondents never  

had any malafide intention and only on the basis of the  

materials placed and being satisfied that it is just and  

essential to detain the appellant under the Tamil Nadu Act  

14 of 1982, the respondents issued the detention order in a

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bonafide manner in their official capacity. The Ist  

respondent has also taken similar plea that the 2nd  

respondent issued the detention order in a bonafide manner  

in his official capacity, the claim for damages made is  

unsustainable.  

12. Learned Single Judge by the judgment dated 27th April,  

2010 dismissed the writ petition on the ground that the  

appellant has failed to establish malafide intention on the  

part of the respondents in registering a criminal case and  

detaining him under Tamil Nadu Act 14 of 1982. The said  

judgment was upheld by the Division Bench by the impugned  

judgment dated 16th August, 2010.

13. The appellant has highlighted the relevant facts as  

noticed above and the learned counsel placed reliance on  

the First Information Report, the communication made by the  

parties, order of detention, etc.  It was submitted by the  

learned counsel for the appellant that the burden was  

wrongly placed on the detenu particularly when no  

explanation was given by the respondents as to why action  

was taken for detention of the appellant. It was further  

contented that the High Court erred in holding that the  

appellant was involved in habitual activities prejudicial

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to the interest of the public order by touring various  

Districts and soliciting the police officials to join the  

association, though there was no material available on  

record to support the same. According to the learned  

counsel for the appellant, in absence of any evidence  

against the appellant it was not open for the High Court to  

hold that the appellant toured various Districts to  

mobilize public opinion.   

14. Learned counsel for the Ist respondent strenuously took  

pain to define malafide intention to suggest that nothing  

malafide either on facts or in law has been proved by the  

appellant.

15. The only question requires for our consideration is  

whether in the facts and circumstances of the case the  

appellant is entitled for any damage for having detained  

for around two months under Section 3(2) of the Tamil Nadu  

Act 14 of 1982 in the Crime No.11/98.

16. From the record we find that much after his retirement  

a press statement was released by the appellant on   8th  

December, 1997 in a Tamil Newspaper "Malai Murasu", which  

reads as follows:

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“PRESS STATEMENT ­­­­­­­­­­­­­­­­­

This is the Requisition sent by Inspector S.  Sengodan,  State Orgnizer  on behalf  of  the  officials working in the Tamil Nadu Police  Department to the Hon'ble Chief Minister of  Tamil Nadu Dr. Kalaignar.

The Police Department is forced to seek  protection for themselves as we have no  solution as to how to stress our demands to  the Government.

For example on 30.11.97 in the incident  that took place in Kovai one Constable Thiru  Selvaraj was attacked and died and even this  incident could not be brought to the notice  of the Government by police constables for  taking proper action in this regard and on  their behalves, their respective wives are  forced to fight for their rights by coming  to the street in bringing this to the notice  of the Government.

Thus in order to avoid this situation,  already a request was made to the Government  by the officials in the Police Department to  form an Association/Union and to act  accordingly. As a reminder, again such  request is made for forming of an  association for the purpose of seeking  proper protection to the constables and to  over come their difficulties and to explain  their true state of affairs.

Therefore, the Hon’ble Doctor Kalaignar  who is treating the people belonging to  various community, as equal, is requested to  accord sanction to form an association for  the above said purposes.

 Sd/.

      S. Sengodan           State Organizer

Dated: 08/12/1997    Tamil Nadu Police  Department employees”

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17. Based on the aforesaid press statement the First  

Information Report was lodged by the 4th respondent, E.Gopi,  

the then Inspector of Police, Sooramangalam Police Station,  

Salem City on 6th January, 1998 impleading the appellant as  

an accused. A case (Crime No.11/98) was registered in the  

Fairlands Police Station, Salem for the offence under  

Section 3 of the Police (Incitement to Disaffection) Act,  

1922 and Section 505(1)(b) of the IPC, relevant portion of  

which reads as under:

“IN THE COURT OF JUDICIAL MAGISTRATE NO.5,  SALEM

CRIME NO: 11/98, FAIRLANDS POLICE STATION, FIRST INFOMRATION REPORT.

xxxx xxxx xxxx

xxxx xxxx xxxx

Humbly Submitted:

Today i.e. on 6.1.98 at about 8.00 p.m.  night while I being the Inspector of Police  was at the station, the Inspector of Police,  Sooramangalam Police Station, Salem City  Thiru Gopi was present at the station and  gave a report along with a paper News  cutting dated 8.12.97 published in the news  paper called ‘Malai Murasu at page 2 which  reads as follows:­

From:

E.Gopi, Inspector of Police,  Sooramangalam P.S.

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Salem City.

To

The Inspector of Police,  Fairlands Police Station, Salem City.

Sir,

I am working as Inspector of Police,  Sooramangalam Police Station, Salem City.  Today 6.1.98, I read Malai Murasu dated  8.12.97 and I came toknow that one Thiru N.  Sengodan, formerly Inspector of Police,  Attur Police Station, Salem District now  retired and settled at 3/90 P & T Colony,  New Fairlands, Salem.16, Salem City has  given a statement to Malai Murasu, Salem  Edition as “In the Report given by Sengodan,  Organizer of the Tamil Nadu State Police  Department Association ‘it has been stated  as follows:

The Police Department which is giving  protection to the General public is forced  to seek protection for themselves as we have  no solution as to how to stress our demands  to the Government.  

In the incident that took place in  Kovai one Constable Selvaraj was attacked  and died and even this incident could not be  brought to the notice of the Government by  police constables for taking proper action  in this regard and on their behalves, their  respective wives are forced to fight for  justice by coming to the street in bringing  this to the notice of the Government.

Thus in order to avoid this situation,  already a request was made to the Government  by the Police Department to form an  Association/Union and to act accordingly.  I  request you once again as a reminder to form  an  Association  for  the  purpose  of  seeking  proper protection to the constables and to  over come their difficulties and to explain  their true state of affairs.

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From the above statement, it is clear  that the above said Thiru N. Sengodan,  Inspector of Police (Retired) intentionally  caused disaffectin towards the Police  Department, Established by Law, in Tamil  Nadu and also with the intention of  committing a breach of discipline among the  police force and also induces them to  withheld their services.   I am also  enclosing a copy of the paper cutting of  Malai Murasu, Salem Edition dated 8.12.97 in  page No.2, for your perusal and action.

Hence I request you to take suitable  action against Tr.N. Sengodan, Inspector of  Police (Retd.) in this regards.

Yours faithfully,                Sd.

E.Gopi Inspector, Dt.6.1.98.

On the basis of the above said report,  received by me, I registered a case in Crime  No.11/98 on the file of Fairlands Police  Station for the offence under Section 3 of  the Police (Incitement to Disaffection) Act,  1922 and Section 505 (1)(b) IPC and sent the  copies  of  the  First Information Report  to  the concerned officials and taken the case  on file for investigation.

Sd. Inspector of Police  

    Fairlands 6.1.98”

In view of the aforesaid criminal case the appellant  

was arrested on the same day, 6th  January, 1998 and was  

taken in custody.  

18. The very same press note was used for issuance of  

detention order dated 9th  January, 1998 by the 2nd

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respondent, V. Jegannathan, the then Inspector General and  

Commissioner of Police, Salem City for detaining the  

appellant under Tamil Nadu Act 14 of 1982, which reads as  

follows:

“PROCEEDINGS OF THE INSEPCTOR GENERAL AND  COMMISSIONER OF POLICE, SALEM CITY

PRESENT: THIRU V. JEGANNATHAN, I.P.S.,

Office of the Inspector General and  Commissioner of Police,  

Salem City.

C.M.P .No.04/GOONDA/SALEM CITY/98  Dated:09­ 01­1998  

DETENTION ORDER

Whereas, I, V. Jegannathan, I.P.S.,  Inspector General and Commissioner of  Police, Salem City, on the materials  placed before me, am satisfied that  Thiru. N. Sengodan, Male, aged 59 years,  son of late Nanjappa Gounder, No.3/9, P&T  Colony, (East) New Fairlands, Salem­16,  Fairlands Police Station Limits, Salem  City is a "Goonda" as contemplated under  Tamil Nadu Act 14 of 1982, and  

Whereas the aforesaid individual is  found indulging in an activity  prejudicial to the maintenance of Public  Order and details of which are set out in  detail in the grounds of detention.  

Now, therefore, in exercise of the  powers conferred by Sub –section (2) of  Section 3 of the Tamil Nadu Prevention of  Dangerous Activities of Bootleggers, Drug  Offenders, Forest Offenders, Goondas,  Immoral Traffic Offenders and

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Slumgrabbers Act, 1982 (Tamil Nadu Act  14/1982) read with the orders issued by  the Government in G.O.Ms.No.221,  Prohibition and Excise (XIV) Department  dated:18.10.1997 under sub­section (2) of  Section 3 of the said Act, I hereby  direct that the said, Thiru N. Sengodan,  Male, aged 59 years, son of late Nanjappa  Gounder, No.3/90, P&T Colony (East), New  Fairlands, Salem­16, Fairlands P.S.  Limits, Salem City who is a 'GOONDA' be  detained at the Central Prison, Salem.

Given under my hand and seal of this  office, this the 9th day of January 1998.

Sd/­ INSPECTOR GENERAL AND  

COMMISSIONER OF POLICE, SALEM CITY.

To Thiru N. Sengoan, Male, aged 59 years, Son of late Nanjappa Gounder, No.3/90, P&T Colony (East) New Fairlands, Salem­16. Fairlands P.S. Limits, Salem City. (Now in Central Prison, Salem)

Through the Superintendent, Central  Prison, Salem.”

19. The appellant having taken in Central Prison made a  

representation before the 2nd respondent, Inspector General  

and Commissioner of Police, Salem City by stating that he  

has no criminal antecedents.  It was further stated that he  

was in the 'Police TASK FORCE' under the State which was  

formed to nab the notorious sandal wood smuggler Veerappan

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and his associates. As a Police officer his service record  

remained extremely good and he had been rewarded a number  

of times and that meritorious service entry has been made  

in his service record.  He took plea that even if the act  

alleged to have indulged is taken to be true, it neither  

constitute an offence nor will it result in the disruption  

of public order. He requested the Commissioner of Police,  

Salem City to revoke the order of detention and gave an  

undertaking that he will not indulge in any activity which  

is per se illegal and unlawful.   The relevant portion of  

the representation dated 9th  February, 1998 reads as  

follows:

      “I most respectfully submit as  hereunder:

       On 7­1­1998 the Inspector of Police,  Fairlands, Salen City arrested me in my  residence and took me to the Police Station.  The grounds of arrest he informed is that a  case has been registered at his station in  Crime No.11 of 1998 for offences under  Section 3 of the Police (Incitement to  Disaffection) Act, 1922 and under Section  505(1)(b) IPC and that the same was under  investigation. I was further informed that  the said case has been registered on  6.1.1998 upon a complaint said to have been  given by Thiru.Gopi, Inspector of Police,  Sooramangalam, Salem City to the effect that  I was attempting to form an Association to  fight for and secure certain rights to the  serving Police personnel in the State of  Tamil Nadu and thereby incidentally inciting

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the police personnel.  Which is in a manner  prejudicial to the maintenance of the public  order on being produced before the Judicial  Magistrate, I was remanded to judicial  custody and lodged  in  the  Central  Prison,  Salem.

    On 9.1.1998 at about 3.45 p.m. the  Superintendent, Central Prison, Salem served  the order in reference on me.  The Inspector  General and Commissioner of Police, Salem  City  has  passed the said  order  exercising  the powers vested in him as the detaining  authority under Act 14 of 1982, The  detaining authority has passed this  detention order on the basis and acting upon  an Affidavit filed by Thiru.M.Ramasamy,  Inspector of Police, Fairland Police Station  as the sponsoring authority.

      I submit that I had never been cited  much less convicted for any offence  previously, I have retired as a honest  Police Officer I have never come to adverse  notice even during my service, I have been  an ex­serviceman while in service while many  officers were not willing to join the ‘TASK  FORCE’ that was formed to nab the notorious  sandal wood smuggler Veerappan I offered to  join and indeed served in the “TASK FORCE".

      I humbly submit that my record of  service as a Police Official was extremely  good. I have won several rewards and  meritorious service entries.

    I submit that even if the acts alleged  to have indulged in are assumed to be true  cannot be said they will result in the  disruption of the Public Order it is nowhere  said that as a result of my acts at any  point of time or at any place a public order  was disrupted.

   I submit that I undertake not to indulge  in any activities which is per se illegal  and unlawful. I submit that I have not taken  any part in the strike or in the connected  activities.   So I request that I am a

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innocent and I may be released at an early  date.  I assure you that I will not take any  part in future in this connection.

   I therefore request the Commissioner of  Police to be pleased to consider this  Memorial and revoke the order of detention.

Yours sincerely,

Sd/­

DATED: 9­2­1998 (N. SENGODAN)”

20. The detention order was placed before the Advisory  

Board under Section 10 of the Tamil Nadu Act 14 of 1982.  

After taking into consideration the representation and the  

connected records the Advisory Board expressed its  

unanimous opinion that there was no sufficient cause for  

detention of the appellant, N. Sengodan. In view of the  

non­approval of the detention order by the Advisory Board  

and its finding, the Government of Tamil Nadu revoked the  

detention order dated 9th  January, 1998 by G.O.Rt.No.636  

dated 3rd March, 1998 issued from Prohibition & Excise (XIV)  

Department, Chennai.  The revocation order dated 3rd March,  

1998 reads as follows:

"GOVERNMENT OF TAMIL NADU

ABSTRACT

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PREVENTIVE  DETENTION  – Salem  City  – Tamil  Nadu Prevention of Dangerous Activities of  Bootleggers, Drug­Offenders, Forest  Offenders, Goondas, Immoral Traffic  Offenders and Slum­grabbers Act 1982 –  Detention of Thiru.N. Sengodan, Goonda –  Order of detention – Revoked. ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

PROHIBITION 7 EXCISE (XIV) DEPARTMENT

G.O.Rt.No.66 Dated:3­3­98.

Read:­

1.  From the Commissioner of Police, Salem City,   Lr.CMP   No.4/Goonda/SLM/C/98, Dt:12.1.1998.

2. G.O. Rt.No.195/P&E Department, dated:20­1­98.

3. From the Chairman, Advisory Board, report dt:   19­2­98.

­­­

ORDER:

The grounds of detention etc., of the  detenu Thiru.N. Sengodan, s/o Thiru.Nanjappa  Gounder, No.3/90, P&T Colony (East) New  Fairlands, Salem­16, Fairlands Police  Station Limits, Salem City, were placed  before the Advisory Board under Section 10  of the Prevention of Dangerous Activities of  Bootleggers, Drug­Offenders, Forest  Offenders, Goondas, Immoral Traffic  Offenders and Slum­grabbers Act 1982 (Tamil  Nadu Act 14/1982). The Advisory Board after  perusing the grounds of detention the report  of the detaining authority to the  Government, the written representation of  the detenu dated:9­2­98 and the connected  records and also the oral representation of  the detenu before the Advisory Board has  expressed its unanimous opinion that there  is no sufficient cause for the detention of  Thiru.N. Sengodan.  Therefore, in accordance  with  the  Provisions of  sub­section  (2)  of  Section 12 of the aforesaid Act, the

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Governor  of Tamil  Nadu  hereby  revokes  the  order of detention dated:9­1­98 made by the  Commissioner of Police, Salem City against  the said Thiru. N. Sengodan and direct that  Thiru.N. Sengodanbe released forthwith from  detention under the Tamil Nadu Act 14/1982  unless he has been detained under any law or  is serving any sentence having been  convicted by any court.

R. POORNALINGAM,  SECRETARY TO GOVERNMENT.”

21. In criminal case Crime No.11/98 after investigation,  

the  respondents  failed to get any ingredients to submit  

chargesheet against the appellant, N. Sengodan. The 3rd  

respondent,   M.  Ramasamy, the then Inspector of  Police,  

Fairlands Police Station, who was dealing with the said  

criminal case after consulting the Assistant Prosecutor,  

Murugesan and going through the CD file opined that there  

was no necessary ingredients available to curb and hook­up  

the  appellant, N.Sengodan under  Section  3 of the Police  

(Incitement to  Disaffection) Act, 1922 and Section 505(1)

(b) of the IPC and therefore, advised to drop further  

action. In view of the aforesaid opinion and materials on  

record Ramasamy, Inspector of Police, Fairlands Police  

Station submitted his final report dropping the case which  

reads as follows:

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“In the Court of the Judicial Magistrate No.V  Salem RCs.No.19/2001, FINAL REPORT IN FAIRLANDS  P.S. Cr.No.11/98 U/s. 3 of the Police (Incitement  to Disaffection)Act, 1922 and Section 505(1)(b)  IPC.

One Thiru.E.Gopi,the then Inspector of  Police, Sooramangalam P.S. preferred a complaint  at Fairlands Police Station on 6.1.98 to the  effect that the statement given by Tr.Sengodan, a  retired Inspector of Police and published in page  No.2 of second edition of Malai Murasu dated:  8.12.97 was inciting the police personnel of  Tamil Nadu to form an Association to fight for  their likely rights and produced the paper  cutting.  The statement was likely to incite the  police personnel who read it to form an  Association to fight for their rights and made  out the offences, punishable under Section 3 of  the Police (Incitement to Disaffection) Act, 1922  and Section 505(1)(b) IPC. So a case in Fairlands  P.S. Cr.No.11/98 under the abovesaid section, of  law was registered  and  investigation  was  taken  up.

The said retired Inspector of Police was  arrested on 6­01­98at his residence and produced  before the court of JM.5 on 7.1.98. He was  remanded in Judicial custody.   Finally, he was  detained under Section 14 of Goondas Act by the  Commissioner of Police, Salem vide CMP  No.04/Goondas/Salem City/98, dated:2.1.98. But  the Advisory Board revoked the said detention  order vide G.O.Rt.No.636 dated:3.3.98 by virtue  of which he was released.

Then I consulted the Assistant Prosecutor  Tr.Murugesan, He went through the CD file and  offered his opinion that the necessary  ingredients to hook­up the said Tr.Sengodan under  the said sections of law were lacking and in one  and advised to drop further action.

Accordignly, further action in this case is  hereby dropped.

Sd/­

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Ramasamy, Inspector of  Police,

FairlandsP.S.”

In the meantime, because of criminal case and the  

detention order the appellant had to remain under detention  

for a period from 6th January, 1998 to 3rd March, 1998.  

22. From the counter­affidavit we find that  M. Subbannan,  

Assistant Commissioner of Police, Western Range, Salem  

City, Salem by letter dated 7th  January, 1998 informed the  

Inspector General and Commissioner of Police, Salem City,  

Salem that the Additional Director of Prosecution, I/C  

Salem on perusal of the records of the Crime No.11/98  

opined that the accused (appellant herein) is a fit person  

to be detained as 'Goonda' under the Tamil Nadu Act 14 of  

1982. He thereby requested that the action may be taken  

against the appellant to detain him as 'Goonda' under the  

Tamil Nadu Act 14 of 1982. The said letter dated 7th  

January, 1998 reads as follows:

“D.THIRU.NAVUKKARASU, Dated: 7­01­1998.    ASST. DIRECTOR OF PROSECUTION,   DHARAMPURI i/c SALEM.

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

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I have perused the case diary file of  Thiru.N. Sengodan, male aged 59 years, s/o late  Nanjappa Gounder, 3/90 P&T Colony (East), New  Fairlands, Salem­16, concerned in Fairlands P.S.  Cr.No.11/98 u/s 3 of the Police (Incitement to  Disaffection) Act, 1992 and Section 505(1)(b)IPC.  registered on 06.01.98.

2. The records reveal that the activities of  the accused Thiru. Sengodan, in having instigated  the police personnel by issue of press statement,  to form an Association of their own, are  prejudicial to the maintenance of public order.  (copy of press statement enclosed).

3. While he was in service, Tr.Sengodan,  claimed to be the President of South Arcot Distt.  Police Association and after retirement from  service as Inspector of Police on 31.10.1997, he  has reportedly floated a self styled Union, viz.,  Tamil Nadu Government Police Officials Union   and he claims to have applied for recognition of  his Union by the Government.

4. Considering his past history and present  activities inciting the police personnel to form  an Association of their own to fight for their  rights, I am of the opinion that the prevailing  penal law is of no avail to curb his activities  and with a view to prevent him from acting in any  manner prejudicial to the maintenance of public  order, it is necessary to make an order of  detention and the accused is a fit person to be  detained as GOONDA under Tamil Nadu Act 14/1982.

Asst.Director of Prosecution, Dharampuri i/c Salem.”

23. On the same date, i.e., 7th  January, 1998, 3rd  

respondent, Mr. M. Ramasamy, Inspector of Police, Fairlands  

Police Station, Salem City by an affidavit before the  

Inspector General and Commissioner of Police, Salem City  

requested to issue an order of detention under Section 3(2)

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of the Tamil Nadu Act 14 of 1982. In the said letter 3rd  

respondent, M. Ramasamy shown himself as petitioner and the  

appellant­accused as the respondent. In the said affidavit  

he informed that he had come across the activities of the  

appellant, who retired from service on 31st  October, 1997  

and is known for his pro­Police Association activities even  

while he was in Government service and claimed himself to  

be the President of South Arcot District Police Association  

and, therefore, requested to detain him as he would indulge  

in such activities continuously unless he was detained  

under the Tamil Nadu Act 14 of 1982. The affidavit dated 7th  

January, 1998 filed by the 3rd respondent, Mr. M. Ramasamy,  

the then Inspector of Police, Fairlands Police Station,  

Salem City reads as follows:

“BEFORE THE INSPECTOR GENERAL AND COMMISSIONER OF  POLICE, SALEM CITY.

M. Ramasamy,  ) Inspector of Police, ) PETITIONER Fairlands P.S., ) Salem City. )

– Versus –

Thiru N. Sengodan, )

male, aged 59 years, )

son of late Nanjappa Gounder, ) RESPONDENT

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3/90, P&T Colony (East) )

New Fairlands, Salem­16,  )

Fairlands P.S. Limits,

Salem City.

AFFIDAVIT FILED BY THIRU M. RAMASAMY, INSPECTOR  OF POLICE, FAIRLANDS P.S., BEFORE THE  COMMISSIONER OF POLICE, SALEM CITY, PRAYING FOR  AN ORDER OF DETENTION UNDER SECTION 3(2) OF THE  TAMIL NADU ACT 14/1982.

I, M. Ramasamy, aged 43 years, son of Thiru  Maruthaiah, Inspector of Police, Fairlands Police  Station,  Salem  City,  do hereby  solemnly affirm  and sincerely state as follows:­

(1) I submit that I am the Inspector of  Police, Fairlands P.S., having jurisdiction over  Fairlands P.S. Limits. I have been entrusted with  the work of enforcement of law and order,  detention of crime, prohibition and other related  offences, prosecution of criminals who commit  offences in violation of the provisions which  adversely affect the public order.

(2)  During the course of my above mentioned  duties, I came across the activities of Thiru N.  Sengodan,  male, a  retired  Inspector of  Police,  aged 59 years, son of late Nanjappa Gounder,  residing at No.3/90 P&T Colony (East), New  Fairlands, Salem­16, Fairlands P.S. Limits, Salem  City.  Thiru Sengodan who retired from service on  31.10.97 is known for his pro­Police Association  activities even while he was in Government  service and claimed to be the President of South  Arcot District Police Association.   He is the  self styled leader of Tamil Nadu Government  Police Officials Union now.

(3)   Further, on 08.12.97, he has come to  adverse notice by issuing a press statement that  appeared in Malai Murasu, inciting the police

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personnel of Tamil Nadu to form an association to  fight for their rights and later he has toured  the districts of Coimbatore, Tiruchirapalli,  Pudukottai and Chennai City and incited the  serving police personnel over forming of an  association, and acted in a manner prejudicial to  the maintenance of public order. In this  connection, a case in Fairlands P.S. Cr.No.11/98,  under Section 3 of the Police (Incitement to  Disaffection) Act, 1922 and Section 505(1)(b) IPC  has been registered against him and the case is  under investigation.

(4)    I also submit that Thiru N.Sengodan  was produced before the Judicial Magistrate No.V,  Salem on 07.01.1998 and he was remanded to  judicial custody at Central Prison, Salem as  ordered. Now, Thiru N. Sengodan, is in remand at  Central Prison, Salem, as a remand prisoner.  

(5)   The marks of identification of the  accused are properly entered in the P.S.R. as  below:

(1) Two old wound scars on the forehead  above the left eye.

(2) Two old would scars on the forehead  above the left eye.

(3) A block mole below the left eye.  

The extract of the P.S.R.is enclosed.

(6) Hence,  there  is every likelihood that  Thiru N. Sengodan would indulge in such activity  continuously  unless he  is  detained  under  Tamil  Nadu Act 14 of 1982.  

I, therefore, request that necessary action  may kindly be taken against him, under Tamil Nadu  Act 14/1982, if deemed fit, by the Detaining  Authority.

INSPECTOR OF POLICE, FAIRLANDS POLICE STATION,

SALEM CITY.

Solemnly affirmed at Salem, this 7th day of  January 1998 and signed his name in my presence.”

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24. The same ground was shown in the order of detention  

vide proceedings dated 9th  January, 1998 of the Inspector  

General and Commissioner of Police, Salem City, which reads  

as follows:   

“PROCEEDINGS OF THE INSPECTOR GENERAL AND  COMMISSIONER OF POLICE.

SALEM CITY.

PRESENT: THIRU V. JEGANNATHAN, I.P.S.

C.M.P.NO.04/GOONDA/SLM(C)/98   DATED:09.01.1998.

Sub:  Tamil Nadu   Prevention   of  Dangerous  Activities  of   

Bootleggers, Drug Offenders,  Forest Offenders, Goondas, Immoral  Traffic Offenders, Slum Grabbers  Act, 1982 (Tamil Nadu Act 14/1982)  – Detention of Thiru N. Sengodan,  male, aged 59 years, son of late  Nanjappa gounder, residing at  No.3/90, P&T colony (East), New  Fairlands, Salem­16, Fairlands P.S.  Limits, Salem city under section  8(2) of the Act – Grounds of  detention.

­ ­ ­

ORDER:

Thiru N. Sengodan, male, aged 59 years,  son of late Nanjappa gounder and a retired  Inspector of Police, residing at No.3/90, P&T  Colony (East), New Fairlands, Salem­16,  Fairlands P.S. Limits; Salem City; has come  to adverse notice as detailed below:

(i)Thiru N. Sengodan, who retired as Inspector of  Police on 31­10­1997 from Attur Town Police  Station in Salem District, is known for his pro­ Police Association activities.

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(ii)Even while he was in Government service, he  had indulged in such Police Association activities  and claimed himself as the President of South  Arcot District Police Association.

(iii)After his retirement on 31­10­1997 from Govt.  service, Thiru N. Sengodan, has floated an  Association called, “Tamilnadu Government Police  Officials Union” for the police personnel: (The  Press  statement of  Tr.  N.  Sengodan  appeared in  “Malai Murasu”on 8.12.97 will speak to this  effect)

2) A detention order under section 3(2) of  the Tamil Nadu Prevention of Dangerous  Activities of Bootleggers, Drug Offenders,  Forest Offenders, Goondas, Immoral Traffic  Offenders and Slum Grabbers Act, 1982 (Tamil  Nadu Act 14/1982) has been made against Thiru  N. Sengodan, male, aged 59 years, son of late  Nanjappa gounder, residing at No.3/90, P&T  Colony (East), New Fairlands, Salem­16,  Fairlands Police Station limits, Salem City  in C.M.P.No.04/Goonda/Salem City/98, dated  09­01­1998.

3) The grounds on which detention has been  made are as follows:­

On 08­12­1997, Thiru N.Sengodan,   male,  aged 59 years, son of late Nanjappa gounder,  residing at No.3/90, P&T Colony (East), New  Fairlands, Salem­16, Fairlands P.S. limits,  Salem City, has issued a press statement that  appeared in “Malai Murasu”, Salem edition, in  which, he has, in the capacity of Organiser,  Tamil Nadu Government Police Officials Union,  reiterated his earlier demand placed before  the Government on formation of an Association  for police personnel.  Further, he has urged  formation of such an Association to protect  the interests of police personnel and to  ventilate their grievances.

Further, after issuing the above press  statement, Thiru N. Sengodan has toured the  districts of Coimbatore, Tiruchenirappalli,  Pudukottai and Chennai City and incited the  service police personnel over formation of an

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Association, and acted in a manner  prejudicial to the maintenance of public  order.   This is evident from the statements  got recorded from the witnesses: (1) Thiru  Ramachandran, PC 1804,  Dheevattipatii P.S.,  (2) Thiru Duraisamy, H.C. 439, Hasthampatty  P.S. (Crime).

Following appearance of press statement  in “Malai Murasu”Thiru E.Gopi, Inspector of  Police, Sooramangalam Police Station appeared  at Fairlands Police Station at 2000 hours on  06.01.98 and preferred a complaint to the  effect that the statement issued by Thiru N.  Sengodan, is inciting the Police personnel of  Tamil Nadu to form an Association to fight  for their rights.   He requested to take  appropriate action   against Thiru N.  Sengodan.

The Inspector of Police, Fairlands  Police Station recorded the said complaint in  the G.D. at 2000 hours on 06.01.98 and  registered a case in Cr.No. 11/98, u/s 3 of  the Police (Incitement to disaffection) Act,  1922  and  Section  505(1)  (b) IPC,  against  Thiru N. Sengodan, for commission of offences  in inciting the police personnel to form an  Association.

The Inspector of Police, Fairlands P.S.  took up investigation of the case, and he,  alongwith his party proceeded to the  residence of Thiru N. Sengodan, No.3/90, P&T  Colony (East), New Fairlands, Salem­16, and  arrested him at 2200 hours, on 06.01.98.  On  being interrogated, Thiru N. Sengodan,  admitted of having given the press statement  to “Malai Murasu” on 08.12.97 on the need for  the formation of an Association for Police  personnel.  He was then brought to Fairlands  Police Station at 2230 hours on 06.01.98 and  was handed over to the station sentry Gr. 1  PC.  2340  Selvakumar for  custody.  Later,  Thiru N. Sengodan was produced before the  Judicial Magistrate No.5, Salem at 0100 hours  on 07.01.98 and was remanded to judicial  custody for 15 days upto 20.01.98, at Central

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Prison, Salem.   The case is under  investigation.

4) Hence, I am satisfied that Thiru N.  Sengodan habitually committing violent crimes  and is also acting in a manner prejudicial to  the maintenance of public order and as such  he is a Goonda as contemplated under sections  2(a) (f) of the Tamilnadu Act 14/1982.

5)  xxxxxxx

6) xxxxxxx

7) xxxxxxx

Inspector General and Commissioner of Police,

Salem City.”  

On the same date, i.e., 9th January, 1998 the detention  

order was issued by the Inspector General and Commissioner  

of Police, Salem City.

25. From the different communications, report, FIR and  

orders as quoted above, we find that the following  

allegations were levelled against the appellant:

i) the appellant, retired Inspector of Police  by press statement published in the second  edition of “ Malai Murasu”dated 8th December, 1997  incited the police personnel of Tamil Nadu to  form an Association to fight for their likely  rights;

ii) the statement aforesaid was likely to incite  the police personnel who read it to form an  Association to fight for their rights;

iii) the aforesaid incitement and press note made  out the offences, punishable under Section 3 of  the Police (Incitement to Disafffection) Act,  1922 and Section 505(1)(b) of the IPC;

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iv) the records reveal that the activities of  the accused­appellant, in having instigated the  police personnel by issue of press statement, to  form an association of their own, are prejudicial  to the maintenance of the public order;

v) while he was in service, the appellant  claimed to be the President of South Arcot  District Police Association and after retirement  from service as Inspector of Police on 31st  

October, 1997, he had reportedly floated a self­ styled Union, viz., Tamil Nadu Government Police  Officials Union and he claimed to have applied  for recognition of his Union by the Government;  and

vi) his past history and present activities in  inciting the police personnel to form an  Association of their own to fight for their  rights and such activities are prejudicial to the  maintenance of the police order which cannot be  curtailed by prevailing penal law and, therefore,  it was necessary to declare him "Goonda" for  detention under the Tamil Nadu Act 14 of 1982.”

26. Section 3 of the Police (Incitement to Disaffection)  

Act, 1922 stipulates penalty for causing disaffection  

towards the State, etc. reads as follows:

"Section 3. Penalty for causing  disaffection, etc.  Whoever intentionally causes  or attempts to cause, or does any act which he  knows is likely to cause disaffection towards the  Government  established  by  law  in  India  amongst  the members of a Police Force, or induces or  attempts to induce, or does any act which he  knows is likely to induce any member of a police  force to withhold his service or to commit a  breach of discipline shall be punished with  imprisonment which may extend to six months or  with fine which may extend to two hundred rupees,  or with both.”

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27. Thus the question that arises is whether the intention  

of the appellant (a retried police officer) to form  

Association of Police force amounts to causing disaffection  

towards the Government established by law to attract  

Section 3 of Police (Incitement to Disaffection) Act, 1922.  

To decide such issue one may refer one of the Central Acts  

enacted by the Parliament known as “The Police­Forces  

(Restriction of Rights) Act, 1966 (Act 33 of 1966)  

(hereinafter referred to as the “1966 Act") to provide for  

the restriction of certain rights conferred by Part III of  

the Constitution in their application to the members of the  

Forces charged with the maintenance of public order as to  

ensure the proper discharge of their duties and the  

maintenance of discipline among them. Section 3 of the 1966  

Act restricts right to form association, freedom of speech,  

etc., which reads as follows:

“Section 3. Restrictions respecting right to form  association, freedom of speech, etc.—

(1)  No member of a police force shall, without  the express sanction of the Central Government or  of the prescribed authority,­

(a) be a member of, or be associated in any  way with, any trade union, labor union,  political association or with any class  of trade unions, labor unions or  political associations; or

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(b)  be a member of, or be associated in any  way with, any other society,  institution, association or  organization that is not recognized as  part of the force of which he is a  member or is not of a purely social,  recreational or religious nature; or

(c)  communicate with the press or publish  or cause to be published any book,  letter or other document except where  such communication or publication is in  the bona fide discharge of his duties  or is  of  a  purely  literary,  artistic  scientific character or is of a  prescribed nature.

Explanation.­  If any question arises as to  whether any society, institution, association or  organization is of a purely social, recreational  or religious nature under clause (b) of this sub­ section, the decision of the Central Government,  thereon, shall be final.

(2) No member of a police­force shall  participate in, or address, any meeting or take  part in any demonstration organized by any body  of persons for any political purposes or for such  other purposes as may be prescribed.”

28. Under Section 4 of the 1966 Act penalty is prescribed  

as:  if any police officer violates the said  provisions,  

shall, without prejudice to any other action that may be  

taken against him, be punishable with imprisonment for a  

term which may extend to two years, or with fine which may  

extend to two thousand rupees, or with both.

29. It is apparent from Section 3 of the Act 1966 that  

there is no specific ban to form association but there is a  

restriction to form association. A Police personnel can be

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a member of, or can be associated in any way with, any  

trade union, labour union, political association or with  

any class of trade unions, labour unions or political  

associations only with the express sanction of the Central  

Government or of the prescribed authority.  For attracting  

the penalty under Section 3 for causing disaffection, it is  

to be proved that the person concerned intentionally caused  

or attempted to cause or done any act which is likely to be  

disaffection towards the Government established by law in  

this country among the members of the Police force or  

induces or attempts to induce or  does any act which he  

knows likely to induce any member of the Police force to  

withhold his service or committed breach of discipline.  

30. From the press statement dated 8th December, 1997 it is  

apparent that no  incitement has been made by the appellant  

against the State Government nor the Police force has been  

instigated. The appellant cited past incident of 30th  

November, 1997 in which one Selvaraj a Police constable was  

attacked and killed which could not be brought to the  

notice of the Government by Police constables for taking  

proper action and their wives were forced to fight for  

their rights by coming to the street in bringing this to

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the notice of the Government. A reminder was given to the  

Chief Minister to allow to form Association or Union for  

the purpose of seeking proper protection to the Police  

constables and to overcome their difficulties and to  

explain their true state of affairs as apparent from the  

following part of the press note dated 8th December, 1997:

“For example on 30.11.97 in the incident  that took place in Kovai one Constable Thiru  Selvaraj was attacked and died and even this  incident could not be brought to the notice  of the Government by police constables for  taking proper action in this regard and on  their behalves, their respective wives are  forced to fight for their rights by coming  to the street in bringing this to the notice  of the Government.

Thus in order to avoid this situation,  already a request was made to the Government  by the officials in the Police Department to  form an Association/Union and to act  accordingly. As a reminder, again such  request is made for forming of an  association for the purpose of seeking  proper protection to the constables and to  overcome their difficulties and to explain  their true state of affairs.

Therefore, the Hon’ble Doctor Kalaignar  who is treating the people belonging to  various community, as equal, is requested to  accord sanction to form an association for  the above said purposes.”

31. Section 505 of the Indian Penal Code relates to the  

statements conducing public mischief.   Sub­section (1)(b)  

of Section 505 IPC reads as follows:

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“Section 505. Statements conducing to public  

mischief.­

(1)Whoever makes, publishes or circulates any  statement, rumour or report,­­

(a)xxx  xxx xxx

(b)with intent to cause, or which is likely to cause,  fear or alarm to the public, or to any section of the  public whereby any person may be induced to commit an  offence against the State or against the public  tranquility; or

(c)xxx  xxx  xxx,

 shall be punished with imprisonment which may  extend to three years, or with fine, or with  both.”

32. In the present case nothing has been brought to the  

notice of this Court to prove that the appellant with  

intent to cause, fear or alarm to the public, or to any  

section of the public or to induce to commit an offence  

against the State Government or against the public  

tranquility, issued  the above said press statement.  

Therefore, it is not clear on what basis the charge  

under Section 3 of the Police (Incitement to Disaffection)

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Act, 1922 and Section 505(1)(b) of the   IPC was levelled  

against the appellant.

33. From the final report filed in the Fairlands Police  

Station  Crime No.11/98 by Mr. M. Ramasamy, Inspector of  

Police, Fairlands Police Station, as quoted above, we also  

find that in absence of ingredients to hook­up the  

appellant under the aforesaid sections of law it was  

advised to drop the criminal case and the same was  

accordingly dropped.  

34. The appellant was declared as 'Goonda' under detention  

order dated  9th  January, 1998  and was detained under the  

Tamil Nadu Act 14 of 1982.   'Goonda' is defined under  

Section 2(f) of the Tamil Nadu Act 14 of 1982 which reads  

as follows:

“Section 2(f) “Goonda”  means a person, who  either by himself or as a member of or  leader of a gang habitually commits, or  attempts to commit or abets the commission  of offence, punishable under Chapter XVI or  Chapter XVII or Chapter XXII of the Indian  Penal Code (Central Act XLV of 1860).”

35. Section 2(a) of the Tamil Nadu Act 14 of 1982 defines  

"acting  in any manner prejudicial to the maintenance of  

public order", which in the case of 'Goonda' means

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“Section 2(a):  “acting in any manner  prejudicial to the maintenance of public  order” means –

(iii) in the case of a goonda, when he is  engaged, or is making preparations for  engaging, in any of his activites as a  goonda which affect adversely, or are  likely to affect adversely the  maintenance of public order.”

36. In the present case the respondents have failed to  

bring on record the evidence to show that the appellant was  

engaged, or was making preparations for engaging, in any of  

his activities as a 'Goonda' which may affect or are likely  

to affect adversely the maintenance of public order. There  

is nothing on record to suggest that the appellant, who  

either by himself or as a member of or leader of a gang  

habitually committed, or attempted to commit or abetted the  

commission of offence punishable under Chapter XVI or  

Chapter XVII or Chapter XXII of the Indian Penal Code. In  

fact, in absence of any such ingredients, the Advisory  

Board constituted under Section 10 of the Tamil Nadu Act 14  

of 1982 rightly held that there was no sufficient cause for  

detention of the appellant. For the same very reason the  

State Government revoked the order of detention dated 9th  

January, 1998 made by the Commissioner of Police, Salem

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City by G.O. Rt.No.66 dated 3rd  March, 1998 issued from  

Prohibition and Excise (XIV) Department.

37. The 4th  Respondent, E.Gopi, the then Inspector of  

Police, Sooramangalam Police Station, Salem who preferred  

the complaint on 6th  January, 1998 (FIR) referring to the  

press statement observed that the appellant intentionally  

caused disaffection towards the Police Department,  

established by law, in Tamil Nadu and the same was made  

with the intention of committing a  breach of discipline  

amongst the Police Force and to induce them to withheld  

their services.   

The same view was taken by the 2nd respondent, the then  

Inspector General and Commissioner of Police, Salem City  

who declared the appellant as "Goonda" on the basis of the  

aforesaid material on record and issued order of detention  

on 9th January, 1998.  

Mr. D. Navukkarasu, Assistant Director of Prosecution  

by letter dated 7th January, 1998 referring to the aforesaid  

incident, reported as follows:

"2. The records reveal that the activities of  the accused Thiru. Sengodan, in having instigated  the police personnel by issue of press statement,  to form an Association of their own, are

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prejudicial to the maintenance of public order.  (copy of press statement enclosed).

3. While he was in service, Tr.Sengodan,  claimed to be the President of South Arcot Distt.  Police Association and after retirement from  service as Inspector of Police on 31.10.1997, he  has reportedly floated a self styled Union, viz.,  Tamil Nadu Government Police Officials Union   and he claims to have applied for recognition of  his Union by the Government.

4. Considering his past history and present  activities inciting the police personnel to form  an Association of their own to fight for their  rights, I am of the opinion that the prevailing  penal law is of no avail to curb his activities  and with a view to prevent him from acting in any  manner prejudicial to the maintenance of public  order, it is necessary to make an order of  detention and the accused is a fit person to be  detained as GOONDA under Tamil Nadu Act 14/1982.”

38. The 3rd respondent, M. Ramasamy, the then Inspector of  

Police, Fairlands Police Station, Salem City in his  

affidavit stated that the appellant who retired from  

service on 31st  October, 1997 is known for his pro­police  

association activities even while he was in service.   It  

was further stated that the appellant claimed to be the  

President of the South Arcot District Police Association  

while in service and is a self styled leader of Tamil Nadu  

Government Police Officials Union now. He further submitted  

by his affidavit dated 7th  January, 1998 before the  

Inspector General and Commissioner of Police, Salem City

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and stated that the appellant was inciting the police  

personnel of Tamil Nadu to form an Association to fight for  

their rights and later he toured districts of Coimbatore,  

Tiruchirapalli, Pudukottai and Chennai City and incited the  

serving police personnel for forming an association and  

acted in a manner prejudicial to the maintenance of the  

public order. It is also stated that the Inspector General  

and Commissioner of Police accepted the aforesaid stand  

taken by the other respondents.

39. We have already noticed that there is nothing on the  

record to suggest that the appellant while in service took  

part in pro­police association activities or formed any  

association such as South Arcot District Police  

Association. There is nothing on the record to suggest that  

he formed another association after retirement, namely,  

Tamil Nadu Police Officials Union.   The respondents have  

failed to bring on record any evidence to suggest that the  

appellant incited the police personnel of Tamil  Nadu to  

form an association to fight their rights against the  

Government. The respondents have also failed to bring on  

record that the appellant toured to the Districts of  

Coimbatore, Tiruchirapalli, Pudukottai and Chennai City and

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incited serving police personnel over forming an  

association in a manner prejudicial to the maintenance of  

the public order.  

40.  The respondents have filed certain statements of some  

police officers but they cannot be relied upon.  They are  

not the statements made by any person under Section 161 of  

the Cr.P.C. or before any Court of law.  Neither any date  

is shown therein nor it is stated that they are true copies  

of the original documents.   

41. In the present case, though there is no sufficient  

cause for the detention of the appellant, in the counter­

affidavit filed by the Ist respondent, 2nd  respondent,  

V.Jegannathan, the then Inspector General and Commissioner  

of Police, Salem City and the 3rd respondent, M. Ramasamy,  

the then Inspector of Police, Fairlands Police Station,  

Salem City, they have taken similar plea that the  

activities of the appellant in having instigating the  

police personnel  by issuing a press statement to form an  

association of their own which was prejudicial to the  

maintenance  of the public order. Again similar plea  has  

been taken that the appellant was the President of South  

Arcot District Police Association and after retirement on

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31st  October, 1997 he floated a self styled Union, viz.,  

Tamil Nadu Government Police Officials Union and there is a  

past history and present activities to show that he incited  

the police personnel to form an association of their own to  

fight for their rights against the Government.   These  

statements made in the counter­affidavit are not based  

on the record and the justification given for  

detention clearly shows that the Ist respondent, 2nd  

respondent, V.Jegannathan, the then Inspector General and  

Commissioner of Police, Salem City and the 3rd  respondent,  

M. Ramasamy, the then Inspector of Police, Fairlands Police  

Station, Salem City with an intention detained the  

appellant on 6th January, 1998 based on facts which were not  

in existence. The appellant had to remain in custody for  

more than two months on the basis of opinion given by the  

respondents based on facts which were not in existence.

42. We have noticed that the respondents have not even  

repented in taking wrong action, they have nowhere  

mentioned that the appellant was wrongly apprehended and  

taken in custody.

43. From the plain reading of the press note published in  

the Tamil Newspaper "Malai Murasu" it merely shows that the

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appellant had made a requisition on behalf of the officials  

working in the Tamil Nadu Police Department to the Hon'ble  

Chief Minister of Tamil Nadu, Dr. Kalaignar stating that  

the police is forced to seek protection for themselves as  

they have no solution as to how to stress their demands to  

the government.  Example of the incident of 30th November,  

1997 has been shown in the said press statement when one of  

the constables was attacked and killed and wives of the  

police personnel were forced to fight for their rights by  

coming to the street to bring certain facts to the notice  

of the State Government.  It was mentioned that in order to  

avoid this situation a request has already been made to the  

Government by the officials  in the Police Department to  

form an Association/Union to act accordingly.   Thereby,  

Hon'ble Dr. Kalaignar, the then Chief Minister was  

requested to accord sanction to form an Association for the  

above said purpose.

44.  The aforesaid press statement does not make out a case  

either under Section 3 of the Police (Incitement to  

Disaffection) Act, 1992 or under Section 505(1)(b) of the  

IPC. On the other hand, the press release shows that the

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appellant acted in accordance with the 1966 Act under which  

permission is required to form an Association.  

45. In the case of  State of Bihar and another vs. P.P.  

Sharma, IAS and another  reported in  1992 Supp.(1) SCC  

222,this Court defined mala fides and held:

“50.  Mala fides means want of good faith,  personal bias, grudge, oblique or improper motive  or ulterior purpose. The administrative action  must be said to be done in good faith, if it is  in fact done honestly, whether it is done  negligently or not. An act done honestly is  deemed to have been done in good faith. An  administrative authority must, therefore, act in  a bona fide manner and should never act for an  improper motive or ulterior purposes or contrary  to the requirements of the statute, or the basis  of the circumstances contemplated by law, or  improperly exercised discretion to achieve some  ulterior purpose. The determination of a plea of  mala fide involves two questions, namely (i)  whether there is a personal bias or an oblique  motive, and (ii) whether the administrative  action is contrary to the objects, requirements  and conditions of a valid exercise of  administrative power.

51. The action taken must, therefore, be proved  to have been made mala fide for such  considerations. Mere assertion or a vague or bald  statement is not sufficient. It must be  demonstrated either by admitted or proved facts  and circumstances obtainable in a given case. If  it is established that the action has been taken  mala fide for any such considerations or by fraud  on power or colourable exercise of power, it  cannot be allowed to stand.”

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This  Court  in the same case of  P.P.  Sharma (supra)  

further held that the person against whom mala fides or  

bias was imputed should be impleaded as a party respondent  

to the proceedings and given an opportunity to meet those  

allegations.  

46. In this case the appellant has not only made assertion  

but demonstrated by placing either by admitted or proved  

facts and circumstances obtainable that even though the  

case is not made out but he was harassed.  

47. Personal liberty is of the widest amplitude covering  

variety of rights. Its deprivation shall be only as per  

procedure prescribed in the Code and the Evidence Act  

conformable to the mandate of the Supreme Law, the  

Constitution. The investigator must be alive to the mandate  

of Constitution and is not empowered to trample upon the  

personal liberty of a person when he has acted by  

malafides, as held by this Court in  the  case of  P.P.  

Sharma (supra).

48. It has already been noticed that the respondents before  

the Advisory Board or before the trial court failed to  

bring on record any evidence to frame the charges against

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the appellant under Section 3 of the Police (Incitement to  

Disaffection) Act, 1992 and under Section 505(1)(b) of the  

IPC or under the Tamil Nadu Act 14 of 1982.  In spite of  

the same, Ist respondent, 2nd respondent, V.Jegannathan, the  

then Inspector General and Commissioner of Police, Salem  

City and the 3rd respondent, M. Ramasamy, the then Inspector  

of Police, Fairlands Police Station, Salem City before this  

Court have taken similar plea that the appellant was  

inciting the police personnel in Tamil Nadu to form an  

association to fight for their rights and toured the  

districts of Coimbatore, Tiruchirapalli, Pudukottai and  

Chennai City and incited the serving police personnel over  

forming of an association, and acted in a manner  

prejudicial to the maintenance of public order. By way of  

additional affidavit certain so called statements of  

persons have been enclosed which have been filed without  

any affidavit and were neither the part of the trial court  

record or material placed before the Advisory Board.   The  

aforesaid action on the part of the Ist, 2nd, 3rd  and 4th  

respondent in support of their act of detaining the  

appellant illegally by placing some material which has  

beyond the record justifies the appellant's allegation that

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the respondents abused their power and position to support  

their unfair order.  

49. In view of the observation made above, though we do not  

give specific finding on mala fide action on the part of  

the Ist, 2nd, 3rd  and 4th  respondent but we hold that the  

respondent­State and its officers have grossly abused legal  

power to punish the appellant to destroy his reputation in  

a manner non­oriented by law by detaining him under the  

Tamil Nadu Act 14 of 1982 in lodging a Criminal Case  

No.11/98 under Section 3 of the Police (Incitement to  

Disaffection) Act, 1992 and under Section 505(1)(b) of the  

IPC based on the wrong statements which were fully  

unwarranted.  

50. This Court in the case of Bhut Nath Mete vs. State of  

W.B., (1974) 1 SCC 645, held that an "Administrative order  

which is based on reasons of fact which do not exist must,  

therefore, be held to be infected with an abuse of power".  

The present case is also covered by the observation as we  

find that the action taken by the respondents based on  

reasons of fact which do not exist, therefore, the same is  

held to be infected with an abuse of power.

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51. In view of the finding aforesaid, we allow the appeal  

and impose a cost of Rs.2 lacs on the State of Tamil Nadu  

for payment in favour of the appellant.   The respondents  

are directed to ensure the payment within two months.  

However, there shall be no separate order as to costs.  

………………………………………………………………………….J.                      (G.S. SINGHVI)

……………………………………………………………………….J.                     (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, JULY 1 ,  2013.