IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23/04/2002
Coram
THE HON'BLE MR.JUSTICE E.PADMANABHAN
WRIT PETITION No. 13611 OF 2002
AND
WPMP NO.18300 OF 2002
Vijayakumari
W/o.K.Dhanasekar ..Petitioner
Vs.
1.Home Secretary
Prohibition and Excise Dept.,
Fort St.George,
Chennai-9
2.The Commissioner of Police,
Greater Chennai,
Egmore, Chennai-8 .. Respondents
Forpetitioner :: Mr.T.K.Sampath
For respondents:: I.Subramaniam, Public Prosecutor
Writ petition filed under Art.226 of The Constitution of India praying
forthe issue of a writ of mandamus, as stated therein.
:OR D E R
The petitioner has approached this court seeking for the issue of a
writ of mandamus directing the first respondent not to invoke the provisions
ofThe Tamil Nadu Prevention of Dangerous Activities of Bootleggers, drug
offenders,Goondas, Immoral T ic offenders, forest offenders and slum grabbers
Act, 1982 (Act 14 of 1982) against the petitioner’s husband K.Dhanasekar,
S/o,KarupaDevar confined at Central Prison, Chennai.
2. Heard Mr.T.K.Sampath, learned counsel appearing for the petitioner
andMr.I.Subramaniam, learned Public Prosecutor on this court directing to
takenotice.
3. According to the petitioner her husband Danasekar is a Municipal
Councillorof K.K.Nagar Division in Chenani Corporation, he is a Managing
Directorof A.K.Securities Pvt., Ltd., and also an income tax assessee holding
permanentaccount Number. s also stated that her husband is a D.M.K.Party
Secretaryof K.K.Nagar Division and has social status,besides doing several
public services, such as eliminating selling of illicit arrack and curbing
activitiesunder immoral trafficking act.
4. It is alleged that due to change in Government, the Police
personnelare trying to foist several cases against the said Danasekar just to
defamehim. It is stated that during the year 2002 three cases have been
foistedagainst Danasekar by R. hok Nagar Police Station, namely in Crime
No.19/2002 for allged offences under sections 147, 148,336, 427 and 506(2)
IPC,Crime No.487/2002, for alleged offences under sectinos 325, and 506(2)
and Crime No.513/2002 for alleged offences under sections 34 1, 307, and
506(2)IPC.
5. The petitioner alleges one Venkataraju, former personal assistant
to the present Chief Minister is the person who is trying to influence the
police. It is the allegation of the petitioner that all the cases are foisted
againsther husband with ew to detain him under the said Tamil Nadu Act 14/82
as a Goonda just to tarnish his good name and fame in the midst of the people
andpolitically finish him of once for all and to liquidate him physically.
It is stated that the petitioner and her husban d belong to a respectable
family,her husband is a graduate in Economics and he is not a street rowdy to
betermed as Goonda. It is alleged that the police personnel deliberately
describe her husband Danasekar as a Goonda and if her husband is to be
detained,the family reputation is on stake and they will be put to shame and
ignomyamong the public and relatives. Hence the present writ petition has
beenfiled for the relief of writ of mandamus.
6. Mr.T.K.Sampath, learned counsel for the petitioner also drew the
attention of the court to the additional affidavit filed at the time of
hearing. In the additional affidavit, it is alleged that her husband has been
implicatedin several case lsely at the instance of the said Venkataraju. It
isfurther stated that Human Rights Commission has been approached. It is
alsostated that the Inspector of Police, R.3 Police Station openly proclaims
thathe would foist cases and detain Dhanasekar under Act 14/82.
7. It is further stated that the said Dhanasekar went to R.7
K.K.NagarPolice Station to seek permission for conducting public meeting on
1.4.2002, and he was beaten brutally and was shifted from one Police Station
toanother Police Station and ally he has been implicated as one of the
accusedin the murder of one Jayakumar, said to have been done to death during
themonth of October, 2001. The police are vindictive since Dhanasekar has
lodgeda complaint before the Human Rights Commission. Therefore a writ of
mandamushas to be issued.
8. Per contra, Mr.I.Subramaniam, learned Public Prosecutor contended
thatthe relief of mandamus cannot be granted and drew the attention of the
Court to Ar.22(5) of The Constitution of India as well as two pronouncements
ofthe Supreme Court conte g that no mandamus as prayed for could be issued on
mereapprehension of the petitioner. The learned Public Prosecutor pointed
out that on the own showing of the petitioner, her husband is involved in
gravecrimes and more than four crimes have been registered with in a short
period of four months for grave offences, including offence under section 302
IPC. However, this court will not be justified in going into the details of
the crimes or expressing any opinion since it does not arise for consid
erationat all at this stage.
9. The point that arise for consideration is:
Whether a writ of mandamus could be issued as prayed forbearing the
respondentsfrom ordering detention of Dhanasekaran?
10. Section 2(f) of the Tamil Nadu Act 14/82 defines the expression
“goonda”. Section 3 confers power of detention on the State Government and
sub section (2) of Section 3 provides for delegation of the said power of
detentionon the Commissioner o lice in so far as the Metropolis. Section
3(1)could very well be invoked by the detaining authority if he is
satisfied that the detenu answers the description of a Goonda or other
categoryand not otherwise. If the detaining authority act honestly and in
good faith, in making an order of detention, on being satisfied on such
informationbeing placed before him and the detaining authority complies with
therequirements of Art.22 of The Constitution. The satisfaction of the
detainingauthority in this respect is purely a subjective satisfaction.
Hence, it cannot be interfered at the thresh hold by issue of a mandamus on
mereapprehensions. It cannot be assumed that there will be violation of
statutory provisions of Act 14/82 by the second responde nt, and on mere
apprehensionof the petitioner, no writ of mandamus could be issued.
11. In the present case the petitioner has made certain averments as
against the Station House Officer, namely the Inspector of Police, as if he
hadproclaimed that he will see that the petitioner’s husband is detained
underthe Act 14/82 as a Go
atisfactionin terms of Section 3 of the Tamil Nadu Act 14/82. No allegations
have been made against second respondent such as mala fide or want of bona
fidesor vindictiveness. Therefore, this court will not be justified in
issuing a writ of mandamus at this stage, nor a case has been made out for
issueof writ of mandamus.
12. This court while applying the tests laid down by the Apex Court,
where judicial review could be exercised to interfere with the orders of
detention,this court holds that it will not be justified in issuing a writ of
mandamusas none of those nds had neither been pointed out, nor been set out,
normade out.
13. The Apex Court in SAYED TAHER BAWAMIYA Vs JOINT SECRETARY TOTHE
GOVT. OF INDIA AND OTHERS reported in 2001 SCC (Cri) 56 while following its
earlierdecision in Additional Secretary to the Govt of India, Vs. Alka
SubhashGadia, reported in 1992 p. (1) SCC 496 laid down the tests fro
exerciseof equitable jurisdiction under Art.226 and Art.32.
14. In that respect, the Apex Court held thus:-
“6. This court in Alka Subhash Gadia case was also concerned with a
mattewhere the detention order had not been served but the High Court had
entertainedthe petitioner under Article 226 of the Constitution. This court
heldthat equitable jurisdic under Article 226 and Article 32 which is
discretionary in nature would not be exercised in a case where the proposed
detenusuccessfully evades the service of the order. The Court,l however,
noted that the courts have the necessary power in appropriate cases to
interferewith the detention order at the pr-execution stage but the scope for
interferenceis very limited. It was held that the courts will interfere at
the pre-execution stage with the detention orders only after they are prima
faciesati sfied–
(i) that the impugned order is not passed under the Act under
whichit is purported to have been passed,
(ii) that it is sought to be executed against a wrong person,
(iii)that it is passed for a wrong purpose,
(iv) that it is passed on vague, extraneous and irrelevant grounds,
(v) that the authority which passed it had no authority to do so.
7. As we see it, the present case does not fall under any of the
aforesaidfive exceptions for the court to interfere. It was contended that
theseexceptions are not exhaustive. We are unable to agree with this
submission. Alka Subhash Gadia Case s that it is only in these five types of
instances that the court may exercise its discretionary jurisdiction under
Article226 or Article 32 at the pre-execution stage. The petitioner had
sought to contend that the order which was passed was vague, ext raneous and
onirrelevant grounds but there is no material for making such an averment for
thesimple reason that the order of detention and the grounds on which the
said order is passed has not been placed on record inasmuch as the order has
notyet bee n executed. The petitioner does not have a copy o the same and
therefore it is not open to the petitioner to contend that the non-existent
orderwas passed on vague, extraneous or on irrelevant grounds.”
15. In the said case the order of detention has been challenged.
Testshave been laid down to exercise the power of Judicial Review. The very
sametest could be applied even for issue of a writ of mandamus, such as,
(i) that the impugned order is not passed under the Act under
whichit is purported to have been passed,
(ii) that ii is sought to be executed against a wrong person,
(iii)that it is passed for a wrong purpose,
(iv) that it is passed on vague, extraneous and irrelevant grounds,
(v) that the authority which passed it had no authority to do so.
16. In the present case, no such ground has been set out or advanced.
Allthat the petitioner averred is that she apprehends detention. On
mere apprehension, this court will not be justified in issuing a writ of
mandamusas no case at all has been out on the facts set out in the affidavit
filed in support of the writ petition, nor it is a case where the respondent
hasno authority at all to exercise its power under section 3 of the Act
14/82, nor allegations of malice or mala fides have even be en suggested
againstthe second respondent, who is yet to apply his mind, only if proposal
isplaced before him.
17. While following the above pronouncements of the Apex Court, this
courtholds that no case has been made out for issue of a writ of mandamus and
thewrit petition is dismissed. Consequently, connected WPMP is also
dismissed. However, it is made r that if an order of detention is passed on
anyfuture date, it is well open to the petitioner to challenge the same by
raisingone or more of the grounds.
Index:yes
Internet;yes
gkv
23-04-2002
To,
1. Home Secretary
Prohibitionand Excise Dept.,
FortSt.George,
Chennai-9
2. The Commissioner of Police,
GreaterChennai,
Egmore,Chennai-8
E.PADMANABHAN,J.
Orderin
W.P.No;13611of 2002