BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/08/2009 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE C.S.KARNAN H.C.P.(MD) No.240 of 2009 Selvam alias Selvakumar .. Petitioner Vs. 1.The State of Tamil Nadu rep. by its Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 2.The District Collector and District Magistrate, Madurai District, Madurai. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India calling for the records relating to the detention order C.M.P. No.7/2009 dated 20.03.2009 passed by the second respondent and quash the same and direct the respondents herein to produce the body and person of Selvam @ Selvakumar, son of Sekar now detained in Central Prison, Madurai before this Court and set him at liberty. !For Petitioner ... Mr.S.Manoharan ^For Respondents... Mr.N.Senthur Pandian, Addl.Public Prosecutor :ORDER
(Order of the Court was made by P.MURGESEN, J.)
The petitioner is the detenu. He was detained 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), by order of
the second respondent, branding him as a ‘GOONDA’.
2. There are six adverse cases and one ground case as against the detenu.
The details of the adverse cases are as under:-
Sl. Police Station and Section of Law No. Crime Number 1. Madurai City, Thedeer Nagar 379 IPC Police Station Crime No.2555 of 1999 2. Sholavandan Police Station 392 r/w 397 IPC Crime No.190 of 2001 3. Madurai City Subramaniapuram 379 IPC Police Station Crime No.816 of 2004 4. Madurai City Thallakulam 379 IPC Police Station Crime No.1982 of 2005 5. Madurai City Thallakulam 379 IPC Police Station Crime No.2030 of 2005 6. Madurai City Thallakulam 397 IPC Police Station Crime No.64 of 2006
The ground case was registered under Section 379 IPC in Crime No.65 of 2009 on
the file of Thirumangalam Police Station. In the ground case, the detenu was
arrested on 06.02.2009 and sent to judicial custody. Thereafter, his remand
period was extended upto 31.03.2009. The date of detention is 20.03.2009.
3. Learned counsel for the petitioner has submitted there is no law and
order problem in all the cases. Secondly, he submitted that the remand extension
order was not furnished to the detenu. Thirdly, the Detaining Authority had
passed the impugned order without applying its mind. Lastly, he submitted that
there was delay in considering the representation of the petitioner.
4. Per contra, the learned Additional Public Prosecutor has submitted that
in the ground case, the conduct of the petitioner had resulted in the
disturbance of public order and it was very well explained in the impugned
order.
5. It must be shown by the authorities that there is disturbance to public
order. Except the ground case, there is nothing to hold that public order was
disturbed in all the other cases. Under the circumstances, it would be fit and
proper to refer to the decision of this Court rendered in H.C.P.(MD) Nos.182 to
184 of 2009 dated 20.07.2009. Paragraphs 9 and 10 of the above decision reads as
follows:-
“9. At this juncture, in the decision reported in 2005 M.L.J. (Crl.) 612
(Kausalya Vs. The District Collector and District Magistrate, Kancheepuram and
another), it was clearly stated what are the activities would amount only to
breach of law and order or likely to cause disturbance of public order would be
decided on the following principles:
1) The maintenance of law and order relates to the crimes committed by
private individuals. The maintenance of public order relates to the disturbance
to the even tempo of life and public tranquility and its effect upon the life of
the community in a locality;
2) Every assault in a public place resulting in the death of a victim may
cause panic to those who are spectators but that does not mean that the said
incident would cause disturbance or dislocation of the community life of the
locality, in the absence of material that the act is committed in a public place
to cause terror to the people in the locality so that they would be prevented
from following their usual avocations;
3) The impact on “public order” and “law and order” depends upon the
nature of the act, the place where it is committed and the motive force behind
it. If the act is confined to an individual without affecting the tempo of the
life of the community, it is a matter of law and order only and it may not fall
within the orbit of public order;
4) In order to bring the activity so as to show that it would affect the
maintenance of public order, there must be material to show that there has been
a feeling of insecurity among the general public;
5) The mere words in the ground of detention would not be sufficient to
inject the requisite degree of quality and potentiality to show that the
incident was so grave as to disturb the normal life of the community in the
locality in the absence of such materials.
10. The learned counsel for the petitioner would also rely upon the
decision reported in 2008 STPL(LE)40249 SC (Bhupendra Vs. State of Maharashtra
and another) and argued that the Apex Court has laid down the guidelines how the
activities of detenu to be breach of law to the public order to be decided. In
that, the Apex Court has held as follows:
“7. The crucial issue is whether the activities of the detenu were
prejudicial to public order. While the expression ‘law and order’ is wider in
scope inasmuch as contravention of law always affects order. `Public order’ has
a narrower ambit, and public order could be affected by only such contravention
which affects the community or the public at large. Public order is the even
tempo of life of the community taking the country as a whole or even a specified
locality. The distinction between the areas of `law and order’ and ‘public
order’ is one of the degree and extent of the reach of the act in question on
society. It is the potentiality of the act to disturb the even tempo of life of
the community which makes it prejudicial to the maintenance of the public order.
If a contravention in its effect is confined only to a few individuals directly
involved as distinct from a wide spectrum of public, it could raise problem of
law and order only. It is the length, magnitude and intensity of the terror wave
unleashed by a particular eruption of disorder that helps to distinguish it as
an act affecting ‘public order’ from that concerning `law and order’. The
question to ask is: “Does it lead to disturbance of the current life of the
community so as to amount to a disturbance of the public order or does it affect
merely an individual leaving the tranquility of the society undisturbed?” This
question has to be faced in every case on its facts.
8. “Public order” is what the French call ‘order publique’ and is
something more than ordinary maintenance of law and order. The test to be
adopted in determining whether an act affects law and order or public order,
is:Does it lead to disturbance of the current life of the community so as to
amount to disturbance of the public order or does it affect merely an individual
leaving the tranquility of the society undisturbed? (See Kanu Biswas v. State of
West Bengal (AIR 1972 SC 1656).
9. “Public order” is synonymous with public safety and tranquility: “it is
the absence of disorder involving breaches of local significance in
contradistinction to national upheavals, such as revolution, civil strife, war,
affecting the security of the State”. Public order if disturbed, must lead to
public disorder. Every breach of the peace does not lead to public disorder.
When two drunkards quarrel and fight there is disorder but not public disorder.
They can be dealt with under the powers to maintain law and order but cannot be
detained on the ground that they were disturbing public order. Disorder is no
doubt prevented by the maintenance of law and order also but disorder is a broad
spectrum, which includes at one end small disturbances and at the other the most
serious and cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State of Bihar
and Ors. (1966 (1) SCR 709).
10. ‘Public Order’, ‘law and order’ and the ‘security of the State’
fictionally draw three concentric circles, the largest representing law and
order, the next representing public order and the smallest representing security
of the State. Every infraction of law must necessarily affect order, but an act
affecting law and order may not necessarily also affect the public order.
Likewise, an act may affect public order, but not necessarily the security of
the State. 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. This does not mean that there can be no overlapping,
in the sense that an act cannot fall under two concepts at the same time. An
act, for instance, affecting public order may have an impact that it would
affect both public order and the security of the State. [See Kishori Mohan Bera
v. The State of West Bengal (1972 (3) SCC 845); Pushkar Mukherjee v. State of
West Bengal (1969 (2) SCR 635); Arun Ghosh v. State of West Bengal (1970 (3) SCR
288); Nagendra Nath Mondal v. State of West Bengal (1972 (1) SCC 498).
11. The distinction between ‘law and order’ and ‘public order’ has been
pointed out succinctly in Arun Ghosh’s case (supra). According to that decision
the true distinction between the areas of ‘law and order’ and `public order’ is
“one of degree and extent of the reach of the act in question upon society”. The
Court pointed out that “the act by itself is not determinant of its own gravity.
In its quality it may not differ but in its potentiality it may be very
different”. (See Babul Mitra alias Anil Mitra v. State of West Bengal and Ors.
(1973 (1) SCC 393, Milan Banik v. State of West Bengal (1974 (4) SCC 504).
12. The true distinction between the areas of law and order and public
order lies not merely in the nature or quality of the act, but in the degree and
extent of its reach upon society. Acts similar in nature, but committed in
different contexts and circumstances, might cause different reactions. In one
case it might affect specific individuals only, and therefore touches the
problem of law and order only, while in another it might affect public order.
The act by itself, therefore, is not determinant of its own gravity. In its
quality it may not differ from other similar acts, but in its potentiality, that
is, in its impact on society, it may be very different.
13. The two concepts have well defined contours, it being well established
that stray and unorganized crimes of theft and assault are not matters of public
order since they do not tend to affect the even flow of public life. Infractions
of law are bound in some measure to lead to disorder but every infraction of law
does not necessarily result in public disorder. Law and order represents the
largest scale within which is the next circle representing public order and the
smallest circle represents the security of State. “Law and order” comprehends
disorders of less gravity than those affecting “public order” just as “public
order” comprehends disorders of less gravity than those affecting “security of
State”. [See Kuso Sah v. The State of Bihar and Ors. (1974 (1) SCC 185, Harpreet
Kaur v. State of Maharashtra (1992 (2) SCC 177, T.K. Gopal v. State of Karnataka
(2000 (6) SCC 168, State of Maharashtra v. Mohd. Yakub (1980 (2) SCR 1158)] and
Commissioner of Police v. C. Anita (2004(7) SCC 467).”
While considering the above said citation, there is a distinction between the
areas of law and order and public order lies not merely in the nature or quality
of the act, but it is one of degree and extent of the reach of the act question
upon society. In one case, it may affect the specific individual only and
therefore it reaches problem of law and order only. While in another, it may
affect public order. But, here the ground case has not affected the public
order. In the above said circumstances, while considering the decisions, the
occurrence has not taken place in a public road, it is a street in between two
rows of houses. In F.I.R. also it was not stated that the occurrence has taken
place in a public road. Hence, it will not cause panic and insecurity in the
minds of public. So, we are of the considered view that there is no cogent
material before detaining authority to come to the conclusion that the act of
the Detenus has created panic in the minds of people of particular locality or
public in general.”
In the above case, the Division Bench of our Court has considered the meaning of
the words “public order” elaborately and clearly. There is no material to hold
that the public order was disturbed. Learned Additional Public Prosecutor is
unable to show any consistent evidence as to the disturbance of public order by
the detenu. On consideration of the materials on record, we are of the opinion
that the respondents have failed to establish the point of disturbance of public
order, in the manner known to law. On this ground, the order of detention is
liable to be set aside.
6. The second ground of the learned counsel for the petitioner is that the
remand extension order was not furnished to the detenu. According to the
petitioner, his remand was extended from 06.02.2009 to 20.02.2009 by a remand
extension order, but the same was not furnished to the detenu. In the case of
Shenbagam v. The District Collector and District Magistrate, Sivagangai,
reported in 2005 (2) CTC 476, a Division Bench of this Court has held that since
the remand order was not furnished to the detenu, the detention order was
vitiated on the ground that the same has been passed mechanically without
considering the relevant materials, including the remand order. In the present
case also, the remand extension order was not furnished. This would reflect the
non-application of mind on the part of the Detaining Authority. Accordingly, on
this ground the Detention Order is liable to be set aside.
7. The next ground raised by the learned counsel for the petitioner is
that there was total non-application of mind on the part of the Detaining
Authority while passing the Detention Order. In Page No.153 of the booklet,
which relates to statement of one Mohanlal Khadri, it is stated that the stolen
jewels were identified and received by him on 11.02.2009. The statement was
received by the Inspector on 06.02.2009. While so, there was no possibility of
receiving the jewels on 11.02.2009. This aspect was not considered by the
Detaining Authority while passing the impugned order. Thus it is clear that
there was total non-application of mind on the part of the Detaining Authority
in passing the impugned order. On this ground also, the order of detention is
liable to be set aside.
8. Another ground asserted by the learned counsel for the petitioner is
that the name of the accused involved in the second adverse case was not
considered properly. In the second adverse case, the name of the accused was
shown as Sekar, S/o Pandi, but here, in the ground case, the accused name is
Selvam, S/o Sekar. On the face of it, both of them cannot be a same person.
For this the learned Additional Public Prosecutor has submitted that the accused
has various names in various cases. There must be material to show that the
accused was in the habit of giving false names to other persons. There is no
material to hold that the accused was in the habit of giving false names and
this point was also not considered by the authorities meticulously. On this
ground also, the order of detention is liable to be set aside.
9. The last ground relied on by the counsel for the petitioner is that
there was delay in considering the representation of the detenu. In the
proforma submitted by the learned Additional Public Prosecutor, it is stated
that the file was submitted on 17.04.2009; Under Secretary dealt with on
17.04.2009; Additional Secretary dealt with on 17.04.2009; Minister for PWD and
Law dealt with the representation on 20.04.2009; rejection letter prepared on
30.04.2009; rejection letter sent to the detenu on 04.05.2009 and rejection
letter served to the detenu on 06.05.2009. It is seen from the columns 13 to 16
that the Minister for PWD and Law dealt with the representation on 20.04.2009,
but the rejection letter was prepared only on 30.04.2009 and therefore there was
a delay of 10 days in between. Thereafter the rejection letter was served on to
the detenu on 06.05.2009 only. The delay was also not explained properly with
reasons. Therefore, we are of the view that on this ground also, the detention
order is liable to be set aside.
10. For all the above reasons, we are of the considered view this H.C.P is
liable to be allowed and accordingly it is allowed and the order of detention in
C.M.P. No.7 of 2009 dated 20.03.2009 passed by the second respondent is set
aside. The detenu is directed to be released forthwith unless his presence is
required in connection with any other case.
KM
To
1.The Secretary to Government,
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort St.George,
Chennai-600 009.
2.The District Collector and District Magistrate,
Madurai District,
Madurai.