IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22-1-2007
CORAM
THE HONOURABLE MR.JUSTICE P.K.MISRA
and
THE HONOURABLE MR.JUSTICE K.MOHAN RAM
Habeas Corpus Petition Nos.1022,2023,2024 and 1025 of 2006
Anjali ..Petitioner in H.C.P.No.1022/2006
Manjula ..Petitioner in H.C.P.No.1023/2006
Easwari ..Petitioner in H.C.P.No.1024/2006
Padmavathy ..Petitioner in H.C.P.No.1025/2006
..vs..
The Secretary to the Government
Prohibition and Excise Dept.,
Secretariat
Chennai 600 009
The Commissioner of Police
Greater Chennai
Egmore, Chennai 600 008 .. Respondents in H.C.P.Nos.1022,
1023, 1024 and 1025 of 2006
H.C.P.No.1022/2006 filed under Article 226 of the
Constitution of India, praying for issuance of a writ of
Habeas Corpus to call for the records in connection with
the order of detention passed by the 2nd respondent dated
16.9.2006 in Memo No.251/BDFGISSV/2006 against the
petitioner's husband, Perumal S/o Karuppan aged about 33
years who is confined at Central Prison, Chennai and set
aside the same and direct the respondent to produce the
detenu before this Hon'ble Court and set him at liberty.
H.C.P.No.1023/2006 filed under Article 226 of the
Constitution of India, praying for issuance of a writ of
Habeas Corpus to call for the records in connection with
the order of detention passed by the 2nd respondent dated
16.9.2006 in Memo No.249/BDFGISSV/2006 against the
petitioner's husband, Vinayagam S/o Elumalai aged about 33
years who is confined at Central Prison, Chennai and set
aside the same and direct the respondent to produce the
detenu before this Hon'ble Court and set him at liberty.
H.C.P.No.1024/2006 filed under Article 226 of the
Constitution of India, praying for issuance of a writ of
Habeas Corpus to call for the records in connection with
the order of detention passed by the 2nd respondent dated
16.9.2006 in Memo No.252/BDFGISSV/2006 against the
petitioner's husband, Banraj S/o Subramani aged about 33
years who is confined at Central Prison, Chennai and set
aside the same and direct the respondent to produce the
detenu before this Hon'ble Court and set him at liberty.
H.C.P.No.1025/2006 filed under Article 226 of the
Constitution of India, praying for issuance of a writ of
Habeas Corpus to call for the records in connection with
the order of detention passed by the 2nd respondent dated
16.9.2006 in Memo No.250/BDFGISSV/2006 against the
petitioner's husband, Sathish S/o Elumalai aged about 23
years who is confined at Central Prison, Chennai and set
aside the same and direct the respondent to produce the
detenu before this Hon'ble Court and set him at liberty.
For petitioner in H.C.P.Nos.1022
1023, 1024 and 1025/2006 : Mr.Ezhil Caroline
For respondents in H.C.P.Nos.1022
1023, 1024 and 1025/2006 : Mr.M.Babu Muthu Meeran,
Additional Public Prosecutor
ORDER
(Order of the Court was made by P.K.MISRA,J.)
Heard the learned counsel appearing for the parties.
2. The four H.C.P.Nos.1022/2006 to 1026 of 2006 filed
on behalf of the four detenus were heard together and are
being disposed of by this common order as the basic
allegations are common.
3. The orders of preventive detention have been
passed in respect of each detenu on 16.9.2006 under Section
3(1) of the Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Drug Offenders, Forest Offenders, Goondas,
Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and
Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). In the
grounds of detention it is indicated that these two persons
along with several others have committed a murder as a
retaliation on 10.8.2006. On the basis of this allegation
Crime No.707/2006 on the file of Periayamedu police station
has been registered along with several others under Sections
147, 148, 341, 307, 302 and 506(2) I.P.C. Subsequently, the
two detenus were in custody and remand orders have been
passed from time to time. On the basis of such basic
allegation, the detaining authority has come to the
conclusion that the detenus thereafter,
“…. along with his associates committed
brutal murder in the public road without allowing
the law to take its own course, has taken law into
his hands without respecting the judicial system
which has sent wrong signals to all law abiding
citizens and he has also acted in a manner
prejudicial to the maintenance of public order and
as such he is a Goonda as contemplated under
Section 2(f) of the Tamil Nadu Act 14 of 1982. By
committing the above described grave murder in the
public in a busy residential cum business area, in
the busy day time, at the centre of Chennai City,
he has created alarm and a feeling of insecurity
in the minds of the people of the area and thereby
acted in a manner prejudicial to the maintenance
of public order.
4. The learned counsel for the petitioners has
submitted that the grounds of detention did not indicate the
alleged involvement of the detenus in any other crime except
the crime alleged to have been committed in Crime
No.707/2006. In other words, the orders of detention are
passed only on a single incident indicated in the grounds of
detention and there is no allegation of his alleged
involvement in any other case on any earlier occasion. In
the above background, the learned counsel for the
petitioners invited our attention for the provisions
contained in the Act. Section 2(f) of the Act defines
`goonda’ in the following terms.
`(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 offences, punishable under
Chapter XVI or Chapter XVII or Chapter XXII of the
Indian Penal Code, 1860 (Central Act XIV of
1860).’
Section 2(1)(a)(iii) is as follows:
`(iii)in the case of a goondas, when he is
engaged, or is making preparations for engaging,
in any of his activities as a goonda which affect
adversely, or are likely to affect adversely, the
maintenance of public order;’
5. The learned counsel for the petitioners submitted
that before passing the orders of detention under Section
3(1), the detaining authority is required to be satisfied
that the person to be detained is a `goonda’ as defined
under the Act. As per the definition clause itself, a
person can be described as a `goonda’ if he habitually
commits, or attempts to commit or abets the commission of
offences punishable under Chapter XVI or Chapter XVII or
Chapter XXII of the Indian Penal Code, 1860. It is
submitted by him that by no stretch of imagination a person
who is alleged to have committed an offence for the first
time can be described as a person who habitually commits, or
attempts to commit or abets the commission of offences. The
learned counsel for the petitioners therefore submitted that
the orders of detention have been passed by the authority
without application of mind regarding provisions of the Act
and as such they have been passed mechanically and they have
to be quashed.
6. In support of such contentions, the learned
counsel for the petitioners places reliance upon the
decision of the Supreme Court reported in JT 2006 SC 69.
(R.KALAVATHI V. THE STATE OF TAMIL NADU AND ORS.) Such
decision of the Supreme Court arose out of an appeal against
an order passed by the Division Bench of this Court. There
the person was detained by invoking the very same provision.
There was no allegation that the detenu was allegedly
involved in any other offence except the case on the basis
of which the detention order was passed. In such
background, the Supreme Court set aside the order of
dismissal passed by the High Court and directed the release
of such persons. The Supreme Court in course of discussion
has observed as follows:
“10.A bare reading of the provision makes the
position clear that in order to attract action in
terms of Section 3(1) of the Act, the detenu must
be one who is a “Goonda” as defined under Section
2(f) of the Act. Though in other preventive
detention laws, even a single act which has the
propensity of affecting even tempo of life and
public tranquility would be sufficient for
detention, being prejudicial to maintenance of
public order. For the purpose of the Act the
detenu has to be a “Goonda” as defined under
Section 2(f) of the Act.”
13.The expression “habitually” is very
significant. A person is said to be a habitual
criminal who by force of habit or inward
disposition is accustomed to commit crimes. It
implies commission of such crimes repeatedly or
persistently and prima facie there should be
continuity in the commission of those
offences.(See: Ayub alias Pappukhan Nawabkhan
Pathan v. S.N.Sinha).
14.From one single transaction though
consisting of several acts, a habit cannot be
attributed to a person.
15.Judged in the background of legal position
delineated above the order of detention cannot be
maintained because it only refers to one act.
There is also no materials to justify the
conclusion that the accused was habitually
committing crime. There is no reference to any
other crime. Therefore, the order of detention
cannot be maintained. The High Court has not
considered this aspect in the proper perspective.
The order of detention in respect of the detenu
which was passed by the Commissioner of Police,
Chennai on 1.8.2005 is quashed. The order of the
High Court is set aside. Detenu be released from
detention forthwith unless required to be
otherwise detained.”
7. In our considered opinion, the ratio of the
aforesaid decision is squarely applicable to the facts of
the present case. In view of the definition clause and in
view of the specific provision, it is obvious that a person
cannot be detained as `Goonda’ unless there is allegation of
his involvement in more than one offences on different
occasions.
8. The learned counsel for the State however
submitted by referring to several decisions of the Supreme
Court that an order of detention can be passed even on a
single incident.
9. It is not necessary to refer to those decisions
because those decisions were in response to other preventive
detention laws where there was no such definition. As a
matter of fact, this aspect has also been noticed by the
Supreme Court in the decision reported in JT 2006 page 69
where in para 10 it was noticed as follows:
“10….Though in other preventive detention laws,
even a single act which has the propensity of
affecting even tempo of life and public
tranquility would be sufficient for detention,
being prejudicial to maintenance of public order.
For the purpose of the Act the detenu has to be a
“Goonda” as defined under Section 2(f) of the
Act.”
10. The learned counsel for the State has placed
reliance upon an unreported decision of this Court in
H.C.P.Nos.457 to 461 of 2006 disposed of on 11.7.2006
wherein, the order of detention passed on the basis of
single incident has been upheld on the ground that a single
incident also can cause disturbance of public order. In
view of the specific decision of the Supreme Court, it is
obvious that the Division Bench decision dated 11.7.2006
cannot be followed. The decision of the Supreme Court was
not brought to the notice of the Division Bench while the
matter was decided. It is of course true in the said
Division Bench decision reliance has been placed upon the
earlier Division Bench decision of this Court reported in
1993 LAW WEEKLY CRIMINAL 113 (SUBBAIAH @ THIRUVOTIYUR
SUBBAIYAH 2 MAHADEVAN VS. THE COMMISSIONER OF POLICE MADRAS
CITY AND ANOTHER). However, on going through the earlier
decision we find that in the earlier case, there was one
adverse case and thereafter, one ground case and in the
above context the Division Bench had upheld the order of
detention. The earlier Division Bench decision is therefore
clearly distinguishable on facts.
11. In connection with H.C.P.Nos.1023 and 1024/2006,
the learned counsel for the State has also stated that in
the grounds of detention there is reference to the fact that
the two detenus involved in the said cases were habitual
offenders and therefore they must be taken to be `goondas’
within the meaning of the Act. In the grounds of detention
it is indicated that the detenu “….is an history sheeted
rowdy element.” Unfortunately, however, along with the
grounds of detention, no such “history” had been furnished
to the detenus. If there were materials against these
detenus that they were involved in any other case and were
“history sheeters” obviously, the details relating to those
cases should have been furnished to the detenus in order to
enable them to make any effective representation. Merely
reciting in the grounds of detention without furnishing
necessary details cannot be accepted as sufficient to come
to the conclusion that those two detenus were `goondas’
within the meaning of the Act.
12. It is of course true that the background in which
the offence was committed appears to be very serious and the
alleged murder which took place in a busy day light is a
case of retaliation. However, since the provisions of the
Act is not applicable, we are constrained to quash such
orders of detention under Act 14/82.
13. All the four Habeas Corpus Petition Nos.1022,
1023, 1024 and 1025/2006 are accordingly allowed. The
impugned orders of detention are quashed. The detenus are
directed to be set at liberty forthwith unless their
presence is required in connection with any other case.
sal
To
1.The Secretary to the Government
Prohibition and Excise Dept.,
Secretariat
Chennai 600 009
2.The Commissioner of Police
Greater Chennai
Egmore, Chennai 600 008