M LALITHA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS is a petition for the issue of a Writ of Habeas Corpus directing one Natarajan alias Bullet Natarajan who has been detained under Section 3 (1) of Tamil Nadu Act 14 of 1984, as a bottlegger by an order dated 4. 5. 1984 to be produced before this Court and released forthwith. The point urged by the learned counsel for the petitioner is that in making the detention order, the detaining authority has relied on the confessional statement made by the detenu which in law cannot constitute legal evidence and, therefore, the order is vitiated. Factually we find that the statement of the learned counsel that the confessional statement was relied on, is correct. It is seen from the grounds of detention that not only in paragraph 3, the detaining authority specifically referred to the admission by the detenu of his having mixed up the white powder in the I. D. arrack in order to give more kick and intoxication to the persons who consume i. D. arrack from him, but also stated that from material along with other material he was satisfied that the detenu as a bottlegger was selling I. D. arrack mixed with poisonous substance in contravention of the provisions of the Tamil Nadu Prohibition Act. In answer to the specific contention raised in the affidavit filed in support of this petition, the second respondent-detaining authority -in the counter affidavit did not deny reliance of the confessional statement, but merely referred to it saying that he was not guided only on the statement of the detenu and that there was sufficient materials available on record to show that there was a threat to the public order. In the light of the statements in the grounds of detention and the counter-affidavit, we are satisfied that the detaining authority has relied on the confessional statement of the detenu e. We have in our judgment in w. P. No. 2283 of 1984 ( Seetha v. Govt. of Tamil Nadu reptd. , by the Chief secretary and another), held that though the Evidence Act as such may not be applicable to the proceedings initiated for preventive detention under Act 14 of 1982, the principle of the provision of Section 25 of that Act would equally apply even in the case of preventive detention under Act 14of 1982. THIS was on the ground that the basis or the logic of the provision is directed against the obtaining statements either by inducement, coercion or other means by over-zealous police officials and that principle would equally apply to a case of preventive detention. As in the earlier case, the learned Public Prosecutor in this case also referred to the judgment of the Supreme Court in Khatr i v. State of Bihar, (1981)2 S. C. J. 12: (1981) M. L. J. ( Cr l.) 456: (1981) 2 S. C. C. 493: (1981) S. C. C. ( Cr l.) 503: (1981) Crl. L. J. 597: a. I. R. 1981 S. C. 1068, wherein in writ proceedings it was held that the bar under Section 162 of the Code of Criminal Procedure would not be applicable in respect of proceedings others than criminal case in respect of which the statement was obtained and that on the same analogy, there is nothing wrong in the admissions of the detenu being also relied on by the detaining authority. We have rejected this submission in the earlier case and we are still of the same view and we do not see any reason for reconsidering the same. There is one material difference in these matters, namely, all those statements under Section 161 Cr. P. C , reliance on which was barred under Section 162 Cr. P. C. , are statements by persons other than the accused himself. They will stand entirely on a different footing. Here in the case of an accused not only the principle of rule in Section 25 of the Evidence Act is absolute in terms, but also Article 30 (3) of the Constitution specifically prohibits compelling an accused to give evidence against himself. The learned Public Prosecutor referred to two recent judgments, one of which was of Allahabad High Court in Noor Mohamma v. State of U. P. , (1983) Crl. L. J. 995. THIS decision in fact does not deal with a case of a confessional statement of the detenu. It deals with a statement by a parade witness as also the confessional statement of a co-accused. They may stand on a different footing. The point directly relating to the admissibility of statements of detenu himself was not considered in that case.

(2.) THE other decision reported in Rajan Lal v. District Magistrate, Moradabad , (1984) All Crl. R. 256: (1984) Crl. L.J. 954, in a way deals with the admission of detenue but the point was not specifically raised in that form as to the admissibility of that statement, but what was contended was that the detenue's name was not found in the First Information Report and that the detention order made even before an identification parade was held, is illegal. That was probably on the basis that till at least an identification parade was held, his involvement in the offence is not complete, and therefore the detention order could not be made. But the learned Judges relied on an entry in the G. D. report wherein the detenue is stated to have admitted the commission of the crime, as the material showing that he is also involved in the crime. THE point as already stated, has not been considered and even if this could be considered as an authority for the position that such confessional statement could be relied on, as we have already held on general principles and on the basis of the Constitutional Prohibition, such statement shall not be permitted to be relied on, lest some over-zealous police officials might, by threat or otherwise, implicate the detenue in a crime for the purpose of the detention. We, therefore, see no reason to review our earlier order and accordingly the order of detention in this case is liable to be set aside and it is set aside. THE respondents are directed to release the detenue forthwith. THE writ petition is allowed.