BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 4/11/2008
CORAM
THE HONOURABLE Mr.JUSTICE R.REGUPATHI
AND
THE HONOURABLE Mr.JUSTICE R.SUBBIAH
H.C.P(MD)No.481 of 2008
C. Valli ... Petitioner
Vs
1. The State of Tamil Nadu
rep. by its Secretary to Government
Home, Prohibition and Excise
(XVI) Department
Fort St. George
Chennai 600 009
2. The District Collector and
The District Magistrate
Karur District.
3. The Superintendent of Prison
Trichy Central Prison
Trichy.
4. The Chairman
Advisory Board
Coovam House
Omandhurar Government Estate
Swami Sivananda Salai
Chennai 600 002. ... Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution
of India, to call for the entire records connected with the detention order of
the second respondent in Cr.M.P.No.16 of 2008 dated 12/5/2008 and quash the same
and direct the respondents to produce the body and person of the petitioner's
husband by name Charles, aged about 32 years, son of Lawrence, now confined at
Trichy Central Prison before this Court and set him at liberty.
!For Petitioner ... Mr.R.Alagumani
^For Respondents... Mr.P.N.Pandithurai
Additional Public Prosecutor
- - - - - - -
:ORDER
(Order of the Court was made by R.REGUPATHI,J)
Wife of the detenu challenges the impugned order of detention,
dated 12/5/2008, detaining her husband as “Goonda”, as contemplated under the
Tamil Nadu Prevention of dangerous activities of Boot leggers, Drug Offenders,
Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-
grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982).
2. Learned counsel for the petitioner points out that in the first
adverse case, the detenu was convicted under Section 397 of the Indian Penal
Code and sentenced to undergo rigorous imprisonment for seven years and he had
already undergone the punishment; and that the second adverse case and the
ground case have been taken on file against the detenu with reference to two
different occurrences that took place on the same day, namely on 8/4/2008, and
both the cases are pending investigation and the detenu was arrested on
10/4/2008. By referring to paragraph No.3 of the ground of detention, wherein,
it has been mentioned as follows:-
“Due to his atrocious activities, the general public was scattered
on all directions. The busiest vehicular traffic was affected for sometime.”,
and adverting to the following observation of the Detaining Authority at
paragraph No.5,
“If he comes out on bail, he will indulge in future activities,
which will be prejudicial to the maintenance of Public Order. Further, the
recourse to normal criminal law would not have the desired effect to prevent him
from involving in such activities, which are prejudicial to the maintenance of
Public Order.”,
he submits that relevant materials are not available either in the grounds of
detention or in the booklet furnished to the detenu so as to substantiate that
the detenu has indulged in activities having the potential to affect the “public
order”; thus, it is apparent that there is non-application of mind on the part
of the detaining authority and therefore, the order of detention is vitiated.
3. Learned Additional Public Prosecutor, on verification of
relevant materials including the First Information Report, statement of
witnesses in the ground case, etc., submitted that there is no material to
substantiate that, in fact, due to the activities of the detenu, the general
public scattered on all directions and the busiest vehicular traffic was
affected for sometime; thereby, “public order” was put to peril.
4. We have perused the materials available on record and considered
the submissions made on either side.
5. The occurrences pertaining to the second adverse case as well as
the ground case took place on 8/4/2008. As per the allegation in the ground
case, the detenu fisted the complainant with hand and threatened him while his
associates (three in number) by brandishing the knife, took away a cash of
Rs.130/-, a cheque for Rs.66,248/- and a cell phone. Further, the detenu and
his associates threatened the complainant not to report the incident to anyone.
Insofar as the second adverse case is concerned, on the same day, the detenu and
his associates, assaulted and robbed away a sum of Rs.550/- and a cell phone
from the complainant. Though the Detaining Authority has stated,
“Due to atrocious activities, the general public was scattered on
all directions. The busiest vehicular traffic was affected for some time”,
the materials available would only substantiate that the activities of the
detenu affected “law and order” and not “public order”. Even as per the
narration given by the Detaining Authority with reference to the occurrence, it
could be seen that the detenu threatened the complainant not to divulge the
incident to anyone, thereby, it could be inferred that the occurrence had taken
place at a spot when there is no much public flow. On a careful scrutiny of the
materials produced by the sponsoring authority, we hardly find any material to
substantiate that the act of the detenu affected the public order and it is
apparent that the Detaining Authority applied the usual language as if there
arose a problem affecting “public order”. In the absence of materials to
substantiate that “public order” was adversely affected, we are of the view that
there is non-application of mind on the part of the detaining authority in
making such observations as aforementioned and passing the ultimate order of
detention. Had the Detaining Authority considered the “potentiality” of the act
of the detenu instead of the “kind”, he would not have misled himself in
arriving at such conclusion.
6. In a case law reported in ABDUL RAZAK NANNEKHAN PATHAN Vs.
POLICE COMMISSIONER, AHMEDABAD AND ANOTHER (1989) 4 SCC – 43, the Honourable
Apex Court observed thus:-
“The criminal cases are confined to certain private individuals and
it is merely a law and order problem and it has nothing to do with maintenance
of public order. Its reach and effect are not so deep as to affect the public
at large. It does not create or tend to create any panic in the minds of people
of a particular locality or public in general nor it affects adversely the
maintenance of public order. An act may create a law and order problem but such
an act does not necessarily cause an obstruction to the maintenance of public
order.”
Therefore, any disorderly behaviour of a person in the public or commission of
a criminal offence is bound to some extent affect the peace prevailing in the
locality and it may also affect law and order problem, but the same need not
affect maintenance of public order. A distinction has to be drawn between law
and order and maintenance of public order. In order that an activity may be
said to affect adversely the maintenance of public order, there must be
materials to show that there has been a feeling of insecurity among the general
public. It might affect specific individuals only, and, therefore, touches the
problem of law and order problem only. Every infraction of law must necessarily
affect order, but an act affecting law and order may not necessarily also affect
the public order. The true test is not the kind, but the potentiality of the
act in question. One act may affect only individuals while the other, though of
a similar kind, may have such an impact that it would disturb the even tempo of
the life of the Community.
8. In the light of the above discussion, we are of the considered
view that there was no sufficient material available with the detaining
authority to substantiate that the detenu created a scene of scare and a feeling
of insecurity in the minds of the Community in the locality; thereby, there was
disturbance to the public order and the even tempo of the life of the public has
been affected. The detaining authority, without application of mind,
mechanically passed the impugned order and therefore, the same is liable to be
set aside.
9. In the result, the Habeas Corpus Petition is allowed and
the order of detention passed by the second respondent in Cr.M.P.No.16 of
2008 dated 12/5/2008 is set aside. The detenu is directed to be set at liberty
forthwith unless his detention is required in connection with any other case or
cause.
mvs.
To:
1. The Secretary to Government
The State of Tamil Nadu
Home, Prohibition and Excise
(XVI) Department
Fort St. George, Chennai 600 009
2. The District Collector and
The District Magistrate
Karur District.
3. The Superintendent of Prison
Trichy Central Prison, Trichy.
4. The Chairman
Advisory Board, Coovam House
Omandhurar Government Estate
Swami Sivananda Salai, Chennai 600 002.
5. The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.