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Sunday, July 14, 2013

compensation for wrongful detention by abusing the police powers - apex court granted 2 lakhs - 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 = 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 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. = 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.= 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 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 the respondents abused their power and position to support their unfair order. 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.

published in http://judis.nic.in/supremecourt/filename=40488
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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
Page 2
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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.
Page 3
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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.  Page 4
4
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   Slum­Page 5
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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 NaduPage 6
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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   thenPage 7
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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
Page 8
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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 thePage 9
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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.  Page 10
10
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 aPage 11
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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   prejudicialPage 12
12
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:Page 13
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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”Page 14
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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.Page 15
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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.Page 16
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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   2ndPage 17
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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   andPage 18
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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 VeerappanPage 19
19
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 incitingPage 20
20
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   aPage 21
21
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
ABSTRACTPage 22
22
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,   thePage 23
23
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:Page 24
24
“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/­Page 25
25
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.
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­Page 26
26
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)Page 27
27
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, ) RESPONDENTPage 28
28
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   policePage 29
29
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.”Page 30
30
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.Page 31
31
(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 anPage 32
32
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 CentralPage 33
33
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;Page 34
34
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.”Page 35
35
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; orPage 36
36
(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 bePage 37
37
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 toPage 38
38
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:Page 39
39
“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)Page 40
40
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  9
th  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 Page 41
41
“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,   SalemPage 42
42
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,   arePage 43
43
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   CityPage 44
44
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 andPage 45
45
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 onPage 46
46
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 thePage 47
47
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 thePage 48
48
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.”Page 49
49
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
Page 50
50
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
Page 51
51
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.
Page 52
52
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.

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