CASE NO.: Appeal (crl.) 701 of 1999 PETITIONER: State of T.N. & Anr. RESPONDENT: Kethiyan Perumal DATE OF JUDGMENT: 11/10/2004 BENCH: ARIJIT PASAYAT & C.K. THAKKER JUDGMENT:
J U D G M E N T
[With Crl. A. No.702 of 1999]
ARIJIT PASAYAT, J.
These two appeals involve identical issues. The impugned
judgment in Criminal Appeal No. 702 of 1999 has its foundation on the
judgment impugned in Criminal Appeal No. 701 of 1999. Therefore, the
factual position involved in Criminal Appeal No. 701 of 1999 is
described.
The State of Tamil Nadu and District Magistrate & Collector,
Vellore District (hereinafter referred to as the ‘detaining authority’)
call in question legality of the judgment rendered by a Division Bench
of the Madras High Court quashing the order of detention dated
29.3.1988 passed by the Detaining Authority.
A Habeas Corpus Petition was filed by the wife of Kethiyan
Perumal (hereinafter described as “the detenu”) who was detained under
Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of
Boot leggers, Drug Offenders, Goondas, Immoral Traffic Offenders and
Slum Grabbers Act, 1982 (in short the ‘Act’). The High Court allowed
the Habeas Corpus Petition primarily on the ground that the Detaining
Authority took into consideration extraneous matters while recording
the finding about unlawful activities of the detenu or that it was
highly dangerous to the public order. The High Court distinguished the
decision of this Court in Mrs. U. Vijayalakshmi v. State of Tamil Nadu
and Anr. (AIR 1994 SC 165) which was relied upon by the detaining
authority. Primary stand of the writ petitioner (present respondent)
before the High Court was that though reference was made to Forest
Officer’s report and the same virtually provided the foundation of the
detention, yet there was no mention therein that activities of the
detenu has been highly dangerous to public order. The State resisted
the petition on the stand that in an identical matter reference was
made to the said Forest Officer’s report. This Court in Mrs. U.
Vijayalakshmi’s case (Supra) dealt with the matter in detail and upheld
the detention. Reliance was placed on Section 5A of the Act to contend
that the grounds are separable and even if one ground indicated in the
order of detention fails, on the residual grounds also a detention can
be maintained.
The High Court found that though the decision in Mrs. U.
Vijayalakshmi’s case (supra) was with reference to the same report of
the Forest Officer, yet points which were presently urged were not
taken before the High Court in the earlier case.
Stand of the appellants is that the High Court accepted the
prayer of the detenu on the ground that the Forest Officer’s report did
not specifically refer to the alleged unlawful activities aspect or
that the impugned acts were highly dangerous to public order. It is
submitted that the conclusion is factually incorrect. It was pointed
out that there was a confession of respondent No. 1 where there was
clear admission about the unlawful activities. In any event the effect
of Section 5A of the Act has not been kept in view by the High Court.
There is no appearance on behalf of the respondent in spite of
service of notice.
The High Court did not take note of the fact that the factual
distinction sought to be brought about by the detenu is not
supportable. In both Mrs. U. Vijayalakshmi’s case (supra) and the
present case the Forest Officer’s report was common. Effect of the
confessional statement and the background facts have not been taken
note of.
Before we go to the legal aspects involved it would be necessary
to sort out confusion entertained by the High Court. Interference was
done with the order of detention primarily on the ground that the
Forest officer’s report did not anywhere indicate about the effect on
public order aspect. In fact, it clearly mentions that activities of
the detenu prejudicially affected public order. It was specifically
stated as follows:
“The human life is dependent on water, clean
air and healthy agriculture for providing food.
Destruction of sandalwood trees in Vellore District
will seriously affect the availability of these
essential things and cause threat to public life at
large due to destruction of Natural Forest Eco-
system.
Hence I feel that we should stop by all means
the indiscriminate felling of trees in Vellore
District in the interest of public because the
ecological system is affected in a manner prejudicial
to the public order.”
The factual mistake, committed by the High Court by observing
that there was no mention regarding activities being highly dangerous
to public order, is not sustainable, in view of the details indicated
and clear mention. It was categorically stated that the destruction of
ecological system would be highly dangerous to public order. In any
event the effect of Section 5A of the Act cannot be lost sight of. The
High Court was clearly in error in holding that decision in Mrs. U.
Vijayalakshmi’s case (supra) was distinguishable. The decision in Mrs.
U. Vijayalakshmi’s case (supra) clearly applies to the facts of the
case. It is to be noted that in D. Vijayalakshmi case (supra) this
court categorically held that in view of Section 5A of the Act an
extraneous and irrelevant ground does not affect validity of the
detention order as Section 5A was introduced precisely to take care of
such a situation. This Court, inter alia, held as follows:
“The second contention is based on the facts stated
in paragraph 4 of the grounds of detention. It is manifest
from the facts stated in paragraph 4 of the grounds of
detention that the emphasis is twofold: (1) that to profit
from the high price fetched by sandal wood in the open
market, illicit felling of sandal wood trees is on the
increase, thereby causing widespread danger to the
ecological system and loss of revenue to Government and (2)
that the huge money falling into the hands of tribals makes
them susceptible to drinking and gambling, thereby
converting the poor and innocent tribals into anti-socials.
So far as the first aspect is concerned we find from the
grounds of detention that the detenu was involved in two
similar cases in the past and the impugned order of
detention was passed after he was found to have indulged in
similar activity on 1st May, 1992. As is clear from the
explanation to Section 2(a)extracted earlier, widespread
danger to the ecological system must be deemed to affect
public order adversely within the meaning of that
expression in Section 2(a) of the Act. Counsel submitted
that although it is asserted in paragraph 4 of the grounds
of detention that the illicit cutting and removal of sandal
wood trees from the reserved forest area causes widespread
danger to the ecological system and disturbs the delicate
equilibrium thereof, there is nothing on record to show
that this assertion is well founded. We are afraid we
cannot accept this submission made by the learned counsel
for the detenu. It is manifest from paragraph 4 of the
grounds of detention that this view was founded on the
opinion of the District Forest Officer, Vellore. Once it
is found that the ground of detention is one recognized by
sub-section (1) of Section 3 of the Act, it is not for this
Court to probe into the correctness of the alleged facts
since this Court has a limited role in the matter of
examining the validity of the detention order.
Counsel for the detenu next contended that the second
aspect of paragraph 4 shows that extraneous considerations
weighed with the detaining authority in passing the
impugned detention order. He submitted that it is too
remote to think that tribals resort to drinking, gambling
and turn anti-socials merely because some extra money falls
into their hands. Assuming without deciding that this
contention is well founded, we are of the opinion that
Section 5A of the Act takes care of it. Even if we were to
hold that this ground is extraneous or irrelevant, that
would not affect the validity of the detention order as
Section 5A was introduced precisely to take care of such a
situation. We, therefore, do not see any merit in the
second contention also.”
The order of the High Court is accordingly set aside.
The impugned judgment in Criminal Appeal No. 702 of 1999 involves
identical issues.
On both aspects factual as well as legal, in both the appeals,
the High Court’s judgments are not sustainable and are, therefore, set
aside.
The residual question is whether it would be appropriate to
direct the respondent in each case to surrender for serving remaining
period of detention in view of passage of time. As was noticed in
Sunil Fulchand Shah v. Union of India and Ors. (2000 (3) SCC 409), it
is for the appropriate State to consider whether the impact of the
acts, which led to the order of detention still survives and whether it
would be desirable to send back the detenu for serving remainder
period of detention. Necessary order in this regard shall be passed
within two months by the appellant State. Passage of time in all
cases cannot be a ground not to send the detenu to serve remainder of
the period of detention. It all depends on the facts of the act and
the continuance or otherwise of the effect of the objectionable acts.
The State shall consider whether there still exists a proximate
temporal nexus between the period of detention indicated in the order
by which the detenu was required to be detained and the date when
the detenu is
required to be detained pursuant to the appellate order.
Appeals are allowed.