BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 05/01/2006 Coram : THE HONOURABLE MR.JUSTICE R.BALASUBRAMANIAN and THE HONOURABLE MR.JUSTICE R.REGUPATHI Habeas Corpus Petition (MD) No.194 of 2005 Velthurai ... Petitioner vs. 1. State, represented by the Inspector of Police, Alangulam Police Station, Tirunelveli District. 2. State, represented by the Secretary to Government, Public Law and Order-F Department, Secretariat, Chennai 600 009. 3. The District Magistrate and District Collector, Tirunelveli District, Tirunelveli. 4. The Superintendent, Palayamkottai Central Prison, Tirunelveli District. 5. The Union of India,represented by Secretary to Government, Ministry of Home Affairs, North Block, New Delhi. ... Respondents This habeas corpus petition is filed under Article 226 of the Constitution of India for the issue of writ of Habeas Corpus directing the respondents to produce the petitioner namely Velthurai, S/o Marthapandi Thevar and now confined at Central Prison, Palayamkottai before this Court and set him at liberty forthwith by setting aside the detention order dated 07.02.2005 in MHS Confidential (NSA) No.2/2005 on the file of the third respondent. !For Petitioner .. Dr.G.Krishnamurthy ^For Respondents .. Mr.P.Jothi, 1 to 4 Additional Public Prosecutor For Respondent 5 .. Mr.Pon Muthuramalingam, Additional Standing Counsel :ORDER
(Order of the Court was made by
R.BALASUBRAMANIAN, J.)
Two points are urged in attacking the order of detention passed
under the National Security Act 1980. The first point is that the petitioner,
if at all has to be detained, it can be only under the Tamil Nadu Act 14 of
1982. There is a bar under Section 17 of the said Act, not to pass an order of
detention, in respect of a goonda, on and after the commencement of Tamil Nadu
Act 14 of 1982, under the Central Act. The second point urged is that the
detenu has sent a representation to the Central and State Governments; the
Central Government has considered and sent a reply, whereas the State Government
has not replied at all.
2.The detention order in this case is dated 07.02.2005 passed under
Section 3(2) of the Central Act. The detention order had come to be passed on
the basis of the alleged involvement of the detenu in the instance that is shown
to have taken place on 28.12.2004, in respect of which a case in Crime
No.847/2004 under Sections 341, 302, 307 IPC and Section 25(1) of the Arms Act
came to be registered on the file of Alangulam Police Station. Therefore, it is
clear that the detention order had come to be passed on a solitary instance,
which according to the detaining authority has the potential to disturb the
maintenance of the public order. One of the ground enumerated in sub-section
(2) to Section 3 of the Central Act is that the Central Government or the State
Government, as the case may be, if satisfied with respect to any person that
with a view to preventing him from …….. acting in any manner prejudicial to
the maintenance of public order, it can detain him. Section 17 of the State Act
reads as here under:
“17.Detention orders against any bootlegger, drug-offender, forest-
offender, goonda, immoral traffic offender, slum-grabber or video pirates to be
made under this Act and not under National Security Act.–On and after the
commencement of this Act, no order of detention under the National Security Act,
1980 (Central Act 65 of 1980) shall be made by the State Government or any of
their officers under that Act in respect of any bootlegger, drug-offender,
forest-offender, goonda, immoral traffic offender, slum-grabber or video pirates
in the State of Tamil Nadu, on the ground of preventing him from acting in any
manner prejudicial to the maintenance of public order, where an order of
detention may be or can be made against such person, under this Act.”
3.The submission of the learned counsel for the petitioner is that
the activity relied upon in the grounds of detention would bring the detenu
under the classification of ‘Goonda’ and therefore having regard to the bar
created under Section 17 of the State Act referred to above, the detention order
is liable to be quashed since it is without jurisdiction. In our considered
opinion, there is a fallacy in this argument. ‘Goonda’ is defined under Section
2 of the State Act as here under.
“2(1)(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);”
Therefore a person to be brought under the category of Goonda should be shown to
be a person who ….. habitually commits or attempts to commit …. offences
punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal
Code Therefore the legal requirement to be satisfied to detain a person as a
Goonda under the State Act is that he must be shown to be a person habitually
committing ….. offences punishable under Chapter XVI or Chapter XVII or
Chapter XXII of the Indian Penal Code and the act on which the detention order
had come to be passed must have the potential to disturb the maintenance of
public order. Therefore, at the risk of repetition, we state that to detain a
person as a ‘Goonda’ under the State Act the said person must be shown to be a
person habitually committing the offences falling under any of the Chapters
mentioned earlier. That is not the requirement of the Central Act. Under the
Central Act, even one instance is enough and if the detaining authority is
satisfied that the said instance has the potential to disturb the public order,
it can invoke the provisions of the Central Act. In other words, the Central
Act do not contemplate a person to be detained under that Act to be a habitual
offender committing offences punishable under Chapter XVI or Chapter XVII or
Chapter XXII of the Indian Penal Code. This basic difference in the two
enactments has been totally lost sight of by the learned counsel appearing for
the petitioner.
4.Under Section 3(2) of the Central Act, the Central Government or
the State Government is given the power, subject to satisfying the requirement
of the provisions of that Act, to pass a detention order. Under the State Act
only the State alone has the power. Prior to the commencement of the State Act,
the State has been detaining persons whose activities would be a hindrance to
the maintenance of public order only under the Central Act. Thereafter
realising the importance to have a preventive law of its own in the context of
the dangerous activities of anti-social elements, the State had enacted Tamil
Nadu Act 14/1982 (the State Act). The State Act also brought within its purview
various class of persons whose activities are likely to hinder the maintenance
of public order. After coming into force of the State Act, the State wants to
regulate its power in invoking the Central Act to pass an order of detention,
if it can bring the activities of such a person under the State Act. Only in
that context, Section 17 of the Act was brought on the statute book. A reading
of Section 17 clearly shows that only when an order of detention on a person may
be or can be made under the State Act, then the State Government shall not
resort to the provisions of the Central Act for the purpose of detaining the
person.
5.Maintenance of public order is the sole object of the State Act
and any activity prejudicial to the maintenance of such public order is sought
to be curtailed by invoking the provisions of the State Act. But under the
Central Act, in addition to maintaining public order, other objects are also
there, namely to prevent a person from acting in any manner prejudicial to the
security of the State or from acting in any manner prejudicial to the
maintenance of supplies and services essential to the community. Section 17 of
the State Act says, the State Government shall not pass an order of detention
under the Central Act on and after the commencement of the State Act ‘in respect
of’ (emphasis supplied) any bootlegger, ……… on the ground of preventing
him from acting in any manner prejudicial to the maintenance of public order.
The phrase ‘in respect of’ has a meaning. As per The Law Lexicon by P.Ramanatha
Aiyer, Reprint 2004, the phrase given its widest meaning, would mean “relating
to” or “with reference to”. Therefore, if the phrase ‘in respect of’ used in
Section 17 of the State Act is properly understood, then it means that such
restriction imposed on the State Government to pass a detention order under the
Central Act should relate to or should be with reference to the classified
persons mentioned therein. The classifications in the State Act are
Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic
Offenders, Slum-grabbers and Video Pirates. Each of those classifications is
well defined under the Act. In the case on hand, as per the grounds of
detention, we are dealing with the case of detention of a Goonda. The
definition ‘Goonda’, we have already referred, is defined to mean a person who
habitually commits ……… Therefore, unless a person sought to be detained
comes under the definition of ‘Goonda’, he cannot be detained under the State
Act. If we read carefully the last limb of Section 17 of the State Act, it is
clear that only when an order of detention may be or can be made by the State
Government or any other officers against such person under the State Act, then
only they cannot pass an order of detention under the Central Act. The
expression ‘such person’ means Bootleggers, Drug-offenders, Forest-offenders,
Goondas, Immoral Traffic Offenders, Slum-grabbers and Video Pirates. In other
words, if the State Government or its officers is not in a position to detain a
person under the State Act, then it is always open to them to go under the
Central Act. In the case on hand the detention order is on only one instance;
therefore there is absence of habituality and in such circumstances the state
Government can not pass a detention order under the State Act.
6.As far as the second point is concerned, the file produced by the
learned Additional Public Prosecutor would show that the detenu had sent a
representation only to the Government of India and it had been properly
considered and disposed off. Learned counsel appearing for the detenu does not
dispute the said fact, but his grievance is that the detenu’s representation to
the State Government had not been considered at all. The learned Additional
Public Prosecutor would state that there is no representation at all to the
State Government. Learned counsel for the petitioner is not able to show us any
proof of having sent any representation to the State Government. Therefore, in
the absence of any proof of having sent a representation to the State
Government, the second point raised by the learned counsel for the detenu falls
to the ground.
7.As the two points raised by the learned counsel for the petitioner
are rejected, the habeas corpus petition is dismissed.
Mf/gb.
Copies to
1. The Inspector of Police,
Alangulam Police Station,
Tirunelveli District.
2. The Secretary to Government,
State of Tamil Nadu,
Public Law and Order-F Department,
Secretariat, Chennai 600 009.
3. The District Magistrate and
District Collector,
Tirunelveli District,
Tirunelveli.
4. The Superintendent,
Palayamkottai Central Prison,
Tirunelveli District.
5. The Secretary to Government,
Union of India,
Ministry of Home Affairs,
North Block, New Delhi.
6.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.