IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 13-11-2008 Coram : The Hon’ble Mr. Justice ELIPE DHARMA RAO and The Hon’ble Mr. Justice S.TAMILVANAN H.C.P.No.1454 of 2008 Rajendran .. Petitioner vs. 1. The State Rep. by its Secretary Department of Home, Prohibition and Excise Secretariat, Fort St. George, Chennai – 600 009. 2. The District Collector and District Magistrate Nagapattinam District, Nagapattinam. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records pertaining to C.O.C.No.73 of 2008, dated 19.07.2008 passed by the second respondent and set aside the same and consequently, direct the respondents herein to produce the detenu namely Kumar S/o.Rajendran, aged 27 years before this Court and set him at liberty. For Petitioner : Mr.P.G.Thiyagu For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R S.TAMILVANAN, J Challenging the order of detention, dated 19.07.2008 passed by the second respondent herein, this Habeas Corpus Petition has been filed. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner herein is father of the detenu Kumar, who has been detained as "Goonda" as defined under Section 2(f) of the Tamil Nadu Act 14 of 1982. There are five adverse cases shown against the detenu in the detention order, apart from the ground case, that was registered on 26.06.2008 in Mayiladuthurai police station, Crime No.945 of 2008 under Section 294(b), 427, 307 and 506 (ii) IPC. As per the detention order, the first four adverse cases against the detenu are pending before the Judicial Magistrate No.I, Mayiladuthurai for trial and the fifth case registered under Sections 147, 148, 294(b), 323, 324 and 506 (ii) IPC is under investigation. 3. Mr.P.G.Thiyagu, learned counsel appearing for the petitioner mainly attacked the detention order on the ground of non-application of mind by the detaining authority and further, submitted that the ground case and all the adverse cases are trivial in nature. In the first adverse case, the detenu has not been arrayed as a named accused in the FIR and no specific overt act has been alleged against him and as per the ground case, according to him, no public order was affected to detain him under Act 14 of 1982. 4. As contended by the learned counsel appearing for the petitioner, the fifth case registered in Cr.No.919 of 2008 is based on an occurrence, alleged to have taken place on 21.06.2008 at 7.30 p.m. As per the averments of the FIR, it is seen that there had been a wordy quarrel between a lorry driver, defacto complainant in the case and the detenu herein just prior to the occurrence, since the detenu had parked his motor cycle on the road side at the alleged scene of occurrence and the defacto complainant was driving the lorry in a high speed and also raised horn sound while turning his vehicle, the detenu and four others scolded the defacto complainant and the detenu pulled him out from the lorry and attacked him by hands and also hit him with a stone found nearby the road, as a result, the defacto complainant sustained bleeding, simple injury. Based on the complaint, the case was registered in Crime No.919 of 2008 against the detenu under Sections 147, 148, 294(b), 323, 324 and 506 (ii) IPC. In the said adverse case, the detenu was arrested and the investigation is pending. 5. As per the ground case, on 26.06.2008 at about 9.30 a.m, the detenu went to the petty shop of the defacto complainant of the ground case, one Rameshkumar at Chinnakadaitheru, Mayiladuthurai scolded him and also inflicted a cut injury (simple injury) on his left forearm, saying that on the alleged previous occasion on 21.06.2008, he had supported the lorry driver. Based on the complaint given by the said defacto complainant, the ground case in Crime No.945 of 2008 was registered against the detenu under Sections 294 (b), 427, 307 and 506 (ii) IPC. 6. As contended by the learned counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioner, it is seen that there is a vital contradiction with regard to the place of occurrence with reference to the detention order, mahazar and the sketch prepared by the police in the ground case and also the connected adverse case. In the copy of the FIR relating to Cr.No.919 of 2008 available at page number 40 of the paper book, it is seen that the detenu and four others were shown as the accused persons, though, there are no specific overt acts alleged against the other four unnamed accused. The place of occurrence is said to be on the Town Station Road nearby the Sub-Jail, Mayiladuthurai. But, in the observation mahazar at page number 42 of the paper book, the place of occurrence is stated as Tharangai Salai, Town Station road junction. In the sketch prepared by the police, available at page number 43 of the paper book, the place of occurrence is neither shown as nearby the Sub-jail, Mayiladuthurai, as stated in the FIR nor shown as the Tharangai Salai-Town Station Junction as per the mahazar, but shown as in front of one Gurumoorthy tea stall on the Town Station Road. There is no satisfactory explanation offered by the learned Additional Public Prosecutor for this vital contradiction, with regard to the place of occurrence. 7. Similarly, as per the ground case, in Crime No.945 of 2008 in the FIR at serial number 5(a) the place of occurrence is stated as Tharangai Salai, in serial number 5(b) for the address, it is stated as Periyakoil Melaveethi, Town Station Road Junction, Tharangai Salai (Near Sub-jail), Mayiladuthurai. As per the averments of the FIR at page number 51 of the paper book, the place of occurrence is stated as "at the shop of the defacto complainant, Rameshkumar", which is situated at Chinnakadai Street, Periyakoil Melaveethi. However, in the observation mahazar, the place of occurrence is stated as the Junction of Tharangai Salai and the Town Station Road, but in the detailed sketch prepared by police and available at page number 55 of the paper book, neither the Chinnakadai Street nor the Periyakoil Melaveethi is shown. As per the sketch, the place of occurrence is specifically marked in front of one Lakshmi Stores on the Town Station Road and not on the Junction of Tharangai Salai and Town Station Road and further, in the sketch, the Sub-Jail Mayiladuthurai, shown far away on the north, near Pattamangala Street. There is no proper explanation for the vital contradiction with regard to the place of occurrence of the ground case. 8. As per the averments of the FIR and the detention order, the detenu has inflicted cut injury on the forearm of the defacto complainant of the ground case, which was simple in nature. As per the copy of the accident register, available at page number 52 of the paper book, the injury found by the doctor has been stated as multiple abrasion, stated as simple in the forearm of the defacto complainant and he was given treatment only as out-patient in the Government Hospital on the aforesaid materials available on record. We are of the considered view that the vital contradictions available on the face of the record go to the root of the detention order, https://hcservices.ecourts.gov.in/hcservices/ which is being assailed in the writ petition. 9. In the detention order, it has been stated that the detenu involved in prohibition cases, but no such details about prohibition case against the detenu has been given. As per the grounds of detention and the corresponding FIR, there was no previous enmity between the lorry driver, the defacto complainant in Crime No. 919 of 2008 and the detenu. As discussed earlier, there are vital contradictions in the ground case and the connected case. 10. At this juncture, it is relevant to refer the ruling of the Hon'ble Apex Court and this Court on the legal aspect. 11. The Hon'ble Supreme Court in a case relating to a case registered in COFEPOSA Act, in the decision, Icchu Devi vs. Union of India, reported in AIR 1980 SC 1983 has held as follows : "The burden of showing that the detention is in accordance with the procedure established by law has always been placed by the Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law. " 12. As per Article 21 of the Constitution, no citizen shall be deprived of his life or personal liberty, except according to procedure established by law. It is a settled proposition of law that individual liberty is so vital, which cannot be curtailed by the authorities, except under due process of law, however, public safety is more important than individual liberty. Therefore, without violating the constitutional safeguards provided to an individual, preventive detention order could be passed by the detaining authority, only with an object of preventing a person acting in a manner prejudicial to the maintenance of public order. 13. The Hon'ble Apex Court in R.Kalavathi vs. State of T.N. and others, reported in 2006 (3) SCC (Cri) 11, has held that in order to attract action in terms of Section 3(1) of the Tamil Nadu Act 14 of 1982, the detenu must be one, who is a "goonda" as defined under Section 2(f) of the Act. It has been made clear that though in other preventive detention laws, even a single act which has the the propensity of affecting the even tempo of life and public tranquillity would be sufficient for detention, being prejudicial to maintenance of public order, for the purpose of the Act the detenu has to be a "goonda" as defined under Section 2(f) of the Act and accordingly a "goonda" means a person, who habitually commits offences. https://hcservices.ecourts.gov.in/hcservices/ 14. Section 2(f) of the Act reads as follows : 2(f) 'goonda' means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act 45 of 1860). 15. A bare reading of the provision makes the position clear that in order to attract action in terms of Section 3(1) of the Act, the detenu must be one who is a "goonda" as defined under Section 2 (f) of the Act. Though in other preventive detention laws, even a single act which has the propensity of affecting even the tempo of life and public tranquility would be sufficient for detention, being prejudicial to maintenance of public order. For the purpose of the Act, the detenu has to be a "goonda" as defined under Section 2(f) of the Act. 16. The expression Habitual has been defined by the Hon'ble Apex Court in Vijay Narain Singh vs. State of Bihar, reported in 1984 (3) SCC 14, which reads as follows : "The expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit." 17. In the Full Bench decision of the Hon'ble Apex Court, Vijay Narain Singh vs. State of Bihar, reported in 1984 SCC (Cri) 361, His Lordship O.Chinnappa Reddy, J, (concurring) has ruled as follows : "Our constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is considered so treacherous and such an anathema to civilized though and democratic polity that safeguards against undue exercise of the power to detain without trial,have been built into the Constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the Legislature have https://hcservices.ecourts.gov.in/hcservices/ been transgressed. Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge." In this decision, it has been clearly held that expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit." 18. In the decision, Tushar Thakker vs. Union of India, reported in AIR 1981 SC 436, the Hon'ble Supreme Court has held that the detenu has a right under Article 22(5) of the Constitution, to be furnished with copies of all the materials relied upon passing order of detention, with reasonable expedition. Delay tends to stultify the detenu's right to make an effective representation and to have it considerel speedily by the authority concerned. The inordinate delay in the supply of copies of the material documents to the detenu are mandatory. Similarly right of intimation to any family member of friend about the detention, without causing delay is also the duty of the authority in safeguarding the right of the detenu, as granted under the Constitution. 19. Above all, there must be subjective satisfaction of the detaining authority, based on the materials placed before him. The Hon'ble Supreme Court in the decision, Mohinuddin vs. Dist. Magistrate, Beed, reported in AIR 1987 SC 1977 has held as follows : "It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well- settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner / detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5). " 20. It is a settled proposition of law that the detaining authority cannot pass an order of detention without having subjective satisfaction based on the materials placed before him and the same is subject to judicial scrutiny. https://hcservices.ecourts.gov.in/hcservices/ 21. In the light of the decisions referred to above, we are of the considered view that the ground case and the materials relied on by the authority for passing the detention order would not be sufficient to draw the subjective satisfaction that the detenu was acting in a manner prejudicial to the maintenance of public order since, in order to detain a person, there should be sufficient materials to attract Section 2 (f) of Act 14 of 1982. 22. As per the connected adverse case in Crime No.919 of 2008, the alleged occurrence had taken place on 21.06.2008 at 7.30 p.m, only due to the wordy quarrel between the lorry driver, the defacto complainant and the detenu and four others, as the detenu had parked his motor cycle nearby the road and the defacto complainant was driving his vehicle at the turning with a high speed. As per the case, there was no previous enmity or any other reason for the occurrence. 23. The detaining authority has not considered the vital contradiction with regard to the place of occurrence of the ground case and the earlier connected case in Crime No.919 of 2008, with reference to the averments of the respective FIR, observation mahazar and the sketch. Similarly, the simple cut injury stated in the detention order and the FIR does not tally with the copy of the accident register issued by the doctor, which shows only simple multiple abrasion sustained on the forearm of the defacto complainant. 24. We are of the considered view that the alleged occurrence of the ground case and the connected adverse case could be tried only before the competent regular criminal court and that the alleged occurrence cannot be construed as prejudicial to the maintenance of public order, as contemplated under the Act. 25. The non consideration of vital contradictions with reference to the place of occurrence and the manner of simple injury sustained by the defacto complainant would show the non-application of mind in passing the detention order, which is liable to be set aside. 26. In the result, the Habeas Corpus Petition is allowed and the detention order is set aside and the detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsvn https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary Department of Home, Prohibition and Excise Secretariat, Fort St. George, Chennai – 600 009. 2. The District Collector and District Magistrate Nagapattinam District, Nagapattinam. 3.The Superintendent, Central Prison, Tiruchirappalli 4.The Joint Secretary to Government, Public (Law & Order) Fort St.George, Chennai-9 5.The Public Prosecutor, High Court, Madras. 1 CC To Mr.P.G.Thiyagu, Advocate, SR NO.63158 H.C.P.No.1454 of 2008 ck(co) pmk.19.11.2008. https://hcservices.ecourts.gov.in/hcservices/