IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.2.2010 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Habeas Corpus Petition No.1978 of 2009 Jaya W/o. Sivabalan .. Petitioner Vs. 1. The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-9. 2. The District Collector and District Magistrate, Villupuram District, Villupuram. .. Respondents Prayer : Petition under Article 226 of the Constitution of India, praying for issuance of Writ of Habeas Corpus, to call for the records in C2/28132/2009 dated 20.8.2009 on the file of second respondent herein and quash the same as illegal and consequently direct the respondents to produce the detenu Siva alias Sivabalan, son of Ramalingam, aged about 28 years, who is now confined in Central Prison, Cuddalore before this Court and set him at liberty. For Petitioner :: Mr. K.Gandhi Kumar For Respondents :: Mr. M.Babu Muthu Meeran, Additional Public Prosecutor O R D E R (Order of the Court was made by C.NAGAPPAN, J.) The wife of the detenu has filed the Habeas Corpus Petition seeking for quashing the Order of detention, dated 20.8.2009, bearing No.C2/28132/2009, passed by the second respondent. 2. On the recommendation made by the Sponsoring Authority citing two adverse cases in Crime No.1199/2005 for the alleged https://hcservices.ecourts.gov.in/hcservices/ offences under Sections 395 r/w Section 397 IPC, Nellikuppam Police Station and Crime No.86/2009 for the alleged offence under Section 302 IPC, Vanur Police Station and the ground case in Crime No.87/2009 under Sections 392 and 307 IPC, and after looking into the materials available, the second respondent, the District Collector and District Magistrate, Villuppuram district, Villuppuram formed an opinion that the detenu was to be termed as 'GOONDA' since his activities are prejudicial to the maintenance of public peace and public order as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982 and in order to prevent him from indulging in such activities in future, the Order of detention, dated 20.8.2009, was passed. The said Order is under challenge in this petition. 3. The learned counsel for the petitioner contends that the second adverse case and the ground case is based on acts committed by the detenu on the same day, with a gap of thirty minutes and that cannot be taken as material to characterise the detenu as a Goonda as per Section 2(f) of the Act and he further contends that the incident in the first adverse case was alleged to have been committed in the year 2005 and there is no proximity between the ground case and the first adverse case and there is a wide gap and they cannot be treated as habitual ones and the ground case, being solitary incident, the order of detention cannot be maintained. 4. The incident relating to the second adverse case took place on 31.5.2009 at 9 pm and the incident in the ground case happened on 31.5.2009 at 9.30 pm itself. Both the incidents had taken place in succession, with a gap of merely thirty minutes on the same day. Following the dictum of the Apex Court in the decision in VIJAY NARAIN SINGH VS. STATE OF BIHAR (AIR 1984 SC 1334) and the decisions rendered by the various Division Bench of this Court in MASANAM V. THE DISTRICT MAGISTRATE AND COLLECTOR OF TIRUNELVELI AND ANOTHER (1992 L.W. (Crl.) 488); MAHESH V. STATE OF TAMIL NADU REP. BY ITS SECRETARY TO GOVERNMENT, PROHIBITION & EXCISE DEPARTMENT AND & ANOTHER (2002 (2) MWN (Cr.) 153) and MURUGAN (a) SENTHILVEL (a) KUMAR V. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KANYAKUMARI DIST. AND ANOTHER (2004-2-L.W. (Crl.) 717), we held in the decision rendered by us on 28.1.2010 in PERIYASAMY V. STATE OF TAMIL NADU AND ANOTHER in H.C.P.No.63 of 2010 that the acts committed by the detenu in succession, in duration of two hours on the same day, cannot be taken as material to characterise the detenu as 'Goonda' within the meaning of Section 2(f) of the Act. In the present case also, the acts committed by the detenu in succession, with a gap of thirty minutes on the same day, cannot be taken as a material to characterise the detenu as a 'Goonda'. It can only be concluded that the second adverse case and the ground case is solitary instance. https://hcservices.ecourts.gov.in/hcservices/ 5. The incident relating to the first adverse case took place on 21.9.2005. There is a wide gap of four years between the first adverse case and the ground case. In this respect, the learned counsel for the petitioner, relies on the decisions of the Division Bench of this Court in ARUMUGAM V. THE COMMISSIONER OF POLICE, TRICHY CITY AND OTHERS (2000 MLJ (Crl) 649) and MURUGAN (a) SENTHILVEL (a) KUMAR V. THE DISTRICT COLLECTOR, KANYAKUMARI DIST. AND ANOTHER (cited supra). This Court, in the decisions referred to above, held on facts that there is a wide gap of five years between the adverse case and the ground case and such long gap would snap the applicability of the term 'habitually' in order to attract Section 2(f) of the Tamil Nadu Act 14 of 1982. We are in agreement with the view taken in the above decisions. In the present case also, there is a wide gap of four years between the first adverse case and the ground case and in view of long interval of time between them they cannot be treated as habitual ones. 6. In view of the above, the remaining is only solitary incident viz. the ground case and as per the dictum of the Supreme Court in R. KALAVATHI V. STATE OF T.N. AND OTHERS (2006) 3 Supreme Court Cases (Cri) 11), the order of detention cannot be maintained if it only refers to one act. Hence, the order of detention in the present case cannot be maintained and is liable to be quashed. 8. For the above reasons, the Habeas Corpus Petition is allowed and the impugned detention order dated 20.8.2009 is set aside. The detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vks Copy to:- 1. The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-9. 2. The District Collector and District Magistrate, Villupuram District, Villupuram. https://hcservices.ecourts.gov.in/hcservices/ 3. The Superintendent of Prisons, Central Prison, Cuddalore-4. 4. The Public Prosecutor, High Court, Madras. 5. The Joint Secretary to Government, Public (Law & Order) Department, Fort Saint George, Chennai-9. 1 cc to Mr.K.Gandhikumar, Advocate, Sr.No.7045 HCP.No. 1978 of 2009 TRM {CO} TP/10.2.2010. https://hcservices.ecourts.gov.in/hcservices/