{"id":5208,"date":"2009-08-19T00:00:00","date_gmt":"2009-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/selvam-alias-selvakumar-vs-the-state-of-tamil-nadu-on-19-august-2009"},"modified":"2015-08-16T01:04:10","modified_gmt":"2015-08-15T19:34:10","slug":"selvam-alias-selvakumar-vs-the-state-of-tamil-nadu-on-19-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/selvam-alias-selvakumar-vs-the-state-of-tamil-nadu-on-19-august-2009","title":{"rendered":"Selvam Alias Selvakumar vs The State Of Tamil Nadu on 19 August, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
Selvam Alias Selvakumar vs The State Of Tamil Nadu on 19 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 19\/08\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE P.MURGESEN\nAND\nTHE HONOURABLE MR.JUSTICE C.S.KARNAN\n\nH.C.P.(MD) No.240 of 2009\n\nSelvam alias Selvakumar\t\t\t\t..\tPetitioner\n\nVs.\n\n1.The State of Tamil Nadu\n  rep. by its Secretary to Government,\n  Prohibition and Excise Department,\n  Fort St.George,\n  Chennai-600 009.\n\n2.The District Collector and District Magistrate,\n  Madurai District,\n  Madurai. \t\t\t\t\t\t..\tRespondents\n\n\tHabeas Corpus Petition filed under Article 226 of the Constitution of\nIndia calling for the records relating to the detention order C.M.P. No.7\/2009\ndated 20.03.2009 passed by the second respondent and quash the same and direct\nthe respondents herein to produce the body and person of Selvam @ Selvakumar,\nson of Sekar now detained in Central Prison, Madurai before this Court and set\nhim at liberty.\n\n!For Petitioner ... Mr.S.Manoharan\n^For Respondents... Mr.N.Senthur Pandian,\n\t            Addl.Public Prosecutor\n\n:ORDER\n<\/pre>\n
(Order of the Court was made by P.MURGESEN, J.)
\n\tThe petitioner is the detenu.  He was detained under Section 3(1) of the
\nTamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders,
\nForest-offenders, Goondas, Immoral Traffic offenders, Sand Offenders, Slum-
\ngrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), by order of
\nthe second respondent, branding him as a ‘GOONDA’.\n<\/p>\n
\t2. There are six adverse cases and one ground case as against the detenu.
\nThe details of the adverse cases are as under:-\n<\/p>\n
Sl.   Police Station and \t\t\tSection of Law\nNo.     Crime Number\n\n1.\tMadurai City, Thedeer Nagar \t\t379 IPC\n\tPolice Station\n\tCrime No.2555 of 1999\n\n2.\tSholavandan Police Station\t\t392 r\/w 397 IPC\n\tCrime No.190 of 2001\n\n3.\tMadurai City Subramaniapuram \t\t379 IPC\n\tPolice Station\n\tCrime No.816 of 2004\n\n4.\tMadurai City Thallakulam \t\t379 IPC\n\tPolice Station\n\tCrime No.1982 of 2005\n\n5.\tMadurai City Thallakulam \t\t379 IPC\n\tPolice Station\n\tCrime No.2030 of 2005\n\n6.\tMadurai City Thallakulam \t\t397 IPC\n\tPolice Station\n\tCrime No.64 of 2006\n\n\n<\/pre>\n
The ground case was registered under Section 379 IPC in Crime No.65 of 2009 on
\nthe file of Thirumangalam Police Station. In the ground case, the detenu was
\narrested on 06.02.2009 and sent to judicial custody.  Thereafter, his remand
\nperiod was extended upto 31.03.2009.  The date of detention is 20.03.2009.\n<\/p>\n
\t3. Learned counsel for the petitioner has submitted there is no law and
\norder problem in all the cases. Secondly, he submitted that the remand extension
\norder was not furnished to the detenu.  Thirdly, the Detaining Authority had
\npassed the impugned order without applying its mind. Lastly, he submitted that
\nthere was delay in considering the representation of the petitioner.\n<\/p>\n
\t4. Per contra, the learned Additional Public Prosecutor has submitted that
\nin the ground case, the conduct of the petitioner had resulted in the
\ndisturbance of public order and it was very well explained in the impugned
\norder.\n<\/p>\n
\t5. It must be shown by the authorities that there is disturbance to public
\norder.  Except the ground case, there is nothing to hold that public order was
\ndisturbed in all the other cases. Under the circumstances, it would be fit and
\nproper to refer to the decision of this Court rendered in H.C.P.(MD) Nos.182 to
\n184 of 2009 dated 20.07.2009. Paragraphs 9 and 10 of the above decision reads as
\nfollows:-\n<\/p>\n
\t“9. At this juncture, in the decision reported in 2005 M.L.J. (Crl.) 612
\n(Kausalya Vs. The District Collector and District Magistrate, Kancheepuram and
\nanother), it was clearly stated what are the activities would amount only to
\nbreach of law and order or likely to cause disturbance of public order would be
\ndecided on the following principles:\n<\/p>\n
\t1) The maintenance of law and order relates to the crimes committed by
\nprivate individuals.  The maintenance of public order relates to the disturbance
\nto the even tempo of life and public tranquility and its effect upon the life of
\nthe community in a locality;\n<\/p>\n
\t2) Every assault in a public place resulting in the death of a victim may
\ncause panic to those who are spectators but that does not mean that the said
\nincident would cause disturbance or dislocation of the community life of the
\nlocality, in the absence of material that the act is committed in a public place
\nto cause terror to the people in the locality so that they would be prevented
\nfrom following their usual avocations;\n<\/p>\n
\t3) The impact on “public order” and “law and order” depends upon the
\nnature of the act, the place where it is committed and the motive force behind
\nit.  If the act is confined to an individual without affecting the tempo of the
\nlife of the community, it is a matter of law and order only and it may not fall
\nwithin the orbit of public order;\n<\/p>\n
\t4) In order to bring the activity so as to show that it would affect the
\nmaintenance of public order, there must be material to show that there has been
\na feeling of insecurity among the general public;\n<\/p>\n
\t 5) The mere words in the ground of detention would not be sufficient to
\ninject the requisite degree of quality and potentiality to show that the
\nincident was so grave as to disturb the normal life of the community in the
\nlocality in the absence of such materials.\n<\/p>\n
\t10. The learned counsel for the petitioner would also rely upon the
\ndecision reported in 2008 STPL(LE)40249 SC (Bhupendra Vs. State of Maharashtra
\nand another) and argued that the Apex Court has laid down the guidelines how the
\nactivities of detenu to be breach of law to the public order to be decided.  In
\nthat, the Apex Court has held as follows:\n<\/p>\n
\t“7. The crucial issue is whether the activities of the detenu were
\nprejudicial to public order.   While the expression ‘law and order’ is wider in
\nscope inasmuch as contravention of law always affects order.  `Public order’ has
\na narrower ambit, and public order could be affected by only such contravention
\nwhich affects the community or the public at large.  Public order is the even
\ntempo of life of the community taking the country as a whole or even a specified
\nlocality. The distinction between the areas of `law and order’ and ‘public
\norder’ is one of the degree and extent of the reach of the act in question on
\nsociety. It is the potentiality of the act to disturb the even tempo of life of
\nthe community which makes it prejudicial to the maintenance of the public order.
\nIf a contravention in its effect is confined only to a few individuals directly
\ninvolved as distinct from a wide spectrum of public, it could raise problem of
\nlaw and order only. It is the length, magnitude and intensity of the terror wave
\nunleashed by a particular eruption of disorder that helps to distinguish it as
\nan act affecting ‘public order’ from that concerning `law and order’. The
\nquestion to ask is: “Does it lead to disturbance of the current life of the
\ncommunity so as to amount to a disturbance of the public order or does it affect
\nmerely an individual leaving the tranquility of the society undisturbed?” This
\nquestion has to be faced in every case on its facts.\n<\/p>\n
\t8. “Public order” is what the French call ‘order publique’ and is
\nsomething more than ordinary maintenance of law and order. The test to be
\nadopted in determining whether an act affects law and order or public order,
\nis:Does it lead to disturbance of the current life of the community so as to
\namount to disturbance of the public order or does it affect merely an individual
\nleaving the tranquility of the society undisturbed? (See Kanu Biswas v. State of
\nWest Bengal (AIR<\/a> 1972 SC 1656).\n<\/p>\n
\t9. “Public order” is synonymous with public safety and tranquility: “it is
\nthe absence of disorder involving breaches of local significance in
\ncontradistinction to national upheavals, such as revolution, civil strife, war,
\naffecting the security of the State”. Public order if disturbed, must lead to
\npublic disorder. Every breach of the peace does not lead to public disorder.
\nWhen two drunkards quarrel and fight there is disorder but not public disorder.
\nThey can be dealt with under the powers to maintain law and order but cannot be
\ndetained on the ground that they were disturbing public order. Disorder is no
\ndoubt prevented by the maintenance of law and order also but disorder is a broad
\nspectrum, which includes at one end small disturbances and at the other the most
\nserious and cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State of Bihar
\nand Ors.<\/a> (1966 (1) SCR 709).\n<\/p>\n
\t10. ‘Public Order’, ‘law and order’ and the ‘security of the State’
\nfictionally draw three concentric circles, the largest representing law and
\norder, the next representing public order and the smallest representing security
\nof the State. Every infraction of law must necessarily affect order, but an act
\naffecting law and order may not necessarily also affect the public order.
\nLikewise, an act may affect public order, but not necessarily the security of
\nthe State. The true test is not the kind, but the potentiality of the act in
\nquestion. One act may affect only individuals while the other, though of a
\nsimilar kind, may have such an impact that it would disturb the even tempo of
\nthe life of the community. This does not mean that there can be no overlapping,
\nin the sense that an act cannot fall under two concepts at the same time. An
\nact, for instance, affecting public order may have an impact that it would
\naffect both public order and the security of the State. [See Kishori Mohan Bera
\nv. The State of West Bengal<\/a> (1972 (3) SCC 845);    Pushkar Mukherjee v. State of
\nWest Bengal<\/a> (1969 (2) SCR 635); Arun Ghosh v. State of West Bengal<\/a> (1970 (3) SCR\n<\/p>\n
288); Nagendra Nath Mondal v. State of West Bengal<\/a> (1972 (1) SCC 498).\n<\/p>\n
\t11. The distinction between ‘law and order’ and ‘public order’ has been
\npointed out succinctly in Arun Ghosh’s case (supra). According to that decision
\nthe true distinction between the areas of ‘law and order’ and `public order’ is
\n“one of degree and extent of the reach of the act in question upon society”. The
\nCourt pointed out that “the act by itself is not determinant of its own gravity.
\nIn its quality it may not differ but in its potentiality it may be very
\ndifferent”. (See Babul Mitra alias Anil Mitra v. State of West Bengal and Ors.
\n(1973 (1) SCC 393, Milan Banik v. State of West Bengal<\/a> (1974 (4) SCC 504).\n<\/p>\n
\t12. The true distinction between the areas of law and order and public
\norder lies not merely in the nature or quality of the act, but in the degree and
\nextent of its reach upon society. Acts similar in nature, but committed in
\ndifferent contexts and circumstances, might cause different reactions. In one
\ncase it might affect specific individuals only, and therefore touches the
\nproblem of law and order only, while in another it might affect public order.
\nThe act by itself, therefore, is not determinant of its own gravity. In its
\nquality it may not differ from other similar acts, but in its potentiality, that
\nis, in its impact on society, it may be very different.\n<\/p>\n
\t13. The two concepts have well defined contours, it being well established
\nthat stray and unorganized crimes of theft and assault are not matters of public
\norder since they do not tend to affect the even flow of public life. Infractions
\nof law are bound in some measure to lead to disorder but every infraction of law
\ndoes not necessarily result in public disorder. Law and order represents the
\nlargest scale within which is the next circle representing public order and the
\nsmallest circle represents the security of State. “Law and order” comprehends
\ndisorders of less gravity than those affecting “public order” just as “public
\norder” comprehends disorders of less gravity than those affecting “security of
\nState”. [See Kuso Sah v. The State of Bihar and Ors.<\/a> (1974 (1) SCC 185, Harpreet
\nKaur v. State of Maharashtra (1992 (2) SCC 177, T.K. Gopal v. State of Karnataka
\n(2000 (6) SCC 168, State of Maharashtra v. Mohd. Yakub<\/a> (1980 (2) SCR 1158)] and
\nCommissioner of Police v. C. Anita<\/a> (2004(7) SCC 467).”\n<\/p>\n
While considering the above said citation, there is a distinction between the
\nareas of law and order and public order lies not merely in the nature or quality
\nof the act, but it is one of degree and extent of the reach of the act question
\nupon society.   In one case, it may affect the specific individual only and
\ntherefore it reaches problem of law and order only.  While in another, it may
\naffect public order.  But, here the ground case has not affected the public
\norder.  In the above said circumstances, while considering the decisions, the
\noccurrence has not taken place in a public road, it is a street in between two
\nrows of houses.  In F.I.R. also it was not stated that the occurrence has taken
\nplace in a public road.  Hence, it will not cause panic  and insecurity in the
\nminds of public.  So, we are of the considered view that there is no cogent
\nmaterial before detaining authority to come to the conclusion that the act of
\nthe Detenus has created panic in the minds of people of particular locality or
\npublic in general.”\n<\/p>\n
In the above case, the Division Bench of our Court has considered the meaning of
\nthe words “public order” elaborately and clearly.   There is no material to hold
\nthat the public order was disturbed.  Learned Additional Public Prosecutor is
\nunable to show any consistent evidence as to the disturbance of public order by
\nthe detenu. On consideration of the materials on record, we are of the opinion
\nthat the respondents have failed to establish the point of disturbance of public
\norder, in the manner known to law.  On this ground, the order of detention is
\nliable to be set aside.\n<\/p>\n
\t6. The second ground of the learned counsel for the petitioner is that the
\nremand extension order was not furnished to the detenu.  According to the
\npetitioner, his remand was extended from 06.02.2009 to 20.02.2009 by a remand
\nextension order, but the same was not furnished to the detenu.  In the case of
\nShenbagam v. The District Collector and District Magistrate, Sivagangai,<\/a>
\nreported in 2005 (2) CTC 476, a Division Bench of this Court has held that since
\nthe remand order was not furnished to the detenu, the detention order was
\nvitiated on the ground that the same has been passed mechanically without
\nconsidering the relevant materials, including the remand order.  In the present
\ncase also, the remand extension order was not furnished.  This would reflect the
\nnon-application of mind on the part of the Detaining Authority.  Accordingly, on
\nthis ground the Detention Order is liable to be set aside.\n<\/p>\n
\t7. The next ground raised by the learned counsel for the petitioner is
\nthat there was total non-application of mind on the part of the Detaining
\nAuthority while passing the Detention Order.  In Page No.153 of the booklet,
\nwhich relates to statement of one Mohanlal Khadri, it is stated that the stolen
\njewels were identified and received by him on 11.02.2009.  The statement was
\nreceived by the Inspector on 06.02.2009.  While so, there was no possibility of
\nreceiving the jewels on 11.02.2009.  This aspect was not considered by the
\nDetaining Authority while passing the impugned order.  Thus it is clear that
\nthere was total non-application of mind on the part of the Detaining Authority
\nin passing the impugned order.  On this ground also, the order of detention is
\nliable to be set aside.\n<\/p>\n
\t8. Another ground asserted by the learned counsel for the petitioner is
\nthat the name of the accused involved in the second adverse case was not
\nconsidered properly.  In the second adverse case, the name of the accused was
\nshown as Sekar, S\/o Pandi, but here, in the ground case, the accused name is
\nSelvam, S\/o Sekar.  On the face of it, both of them cannot be a same person.
\nFor this the learned Additional Public Prosecutor has submitted that the accused
\nhas various names in various cases. There must be material to show that the
\naccused was in the habit of giving false names to other persons. There is no
\nmaterial to hold that the accused was in the habit of giving false names and
\nthis point was also not considered by the authorities meticulously. On this
\nground also, the order of detention is liable to be set aside.\n<\/p>\n
\t9. The last ground relied on by the counsel for the petitioner is that
\nthere was delay in considering the representation of the detenu.  In the
\nproforma submitted by the learned Additional Public Prosecutor, it is stated
\nthat the file was submitted on 17.04.2009; Under Secretary dealt with on
\n17.04.2009; Additional Secretary dealt with on 17.04.2009; Minister for PWD and
\nLaw dealt with the representation on 20.04.2009; rejection letter prepared on
\n30.04.2009; rejection letter sent to the detenu on 04.05.2009 and rejection
\nletter served to the detenu on 06.05.2009.  It is seen from the columns 13 to 16
\nthat the Minister for PWD and Law dealt with the representation on 20.04.2009,
\nbut the rejection letter was prepared only on 30.04.2009 and therefore there was
\na delay of 10 days in between. Thereafter the rejection letter was served on to
\nthe detenu on 06.05.2009 only. The delay was also not explained properly with
\nreasons. Therefore, we are of the view that on this ground also, the detention
\norder is liable to be set aside.\n<\/p>\n
\t10. For all the above reasons, we are of the considered view this H.C.P is
\nliable to be allowed and accordingly it is allowed and the order of detention in
\nC.M.P. No.7 of 2009 dated 20.03.2009 passed by the second respondent is set
\naside. The detenu is directed to be released forthwith unless his presence is
\nrequired in connection with any other case.\n<\/p>\n
KM<\/p>\n
To<\/p>\n
1.The Secretary to Government,
\n  Government of Tamil Nadu,
\n  Prohibition and Excise Department,
\n  Fort St.George,
\n  Chennai-600 009.\n<\/p>\n
2.The District Collector and District Magistrate,
\n  Madurai District,
\n  Madurai. \t\t\t\t\t<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Selvam Alias Selvakumar vs The State Of Tamil Nadu on 19 August, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-5208","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSelvam Alias Selvakumar vs The State Of Tamil Nadu on 19 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/selvam-alias-selvakumar-vs-the-state-of-tamil-nadu-on-19-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Selvam Alias Selvakumar vs The State Of Tamil Nadu on 19 August, 2009 - 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