THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 16.02.2006 Coram:- The Hon'ble Mr. Justice P.SATHASIVAM and The Hon'ble Mr. Justice J.A.K.SAMPATH KUMAR Habeas Corpus Petition No.107 of 2006 K.Dhanasekaran ... Petitioner vs. 1. The Commissioner of Police, Greater Chennai, Egmore, Chennai-600 008. 2. The Secretary to Govt. of Tamil Nadu, Prohibition and Central Excise, Fort St. George, Chennai. ... Respondents Petition under Article 226 of the Constitution of India to issue writ of Habeas Corpus, quash the detention order passed by the first respondent in 563/BDFGISV/2005, dated 29.12.2005, produce the detenu/petitioner before this Court and set him at liberty. For Petitioner : Mr. N.R.Elango For Respondents : Mr. L.Nageswara Rao, Senior Counsel for Mr.S.Jayakumar, Public Prosecutor. https://hcservices.ecourts.gov.in/hcservices/ O R D E R P. Sathasivam, J. The petitioner, by name K.Dhanasekaran, who is detained as 'Goonda' as contemplated under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) by the impugned proceedings, dated 29.12.2005, of the Commissioner of Police, Greater Chennai, challenges the same in this Habeas Corpus Petition. 2. According to the petitioner, he is the Councillor of Ward No.130 of the Chennai Corporation and he is also the Divisional Secretary of the DMK party of K.K. Nagar area. On 20.12.2005, he was arrested by the Inspector of Police, MGR Nagar Police Station, in connection with Crime No.747 of 2005, for offences under Sections 120-B, 147, 304, 109, 323 and 325 IPC., which was registered on a complaint from one Munisamy, Revenue Inspector, regarding death of 42 persons in a stampede at the relief token distribution centre at MGR Nagar on 18.12.2005. 3. In the grounds of detention, it is alleged that the petitioner along with others had spread rumours stating that Sunday ie., 18.12.2005, was the last day for the issuance of flood relief tokens and that the distribution was started at 5.00 A.M. It is further alleged that believing the said rumours, huge crowd gathered before the relief tokens distribution centre at MGR Nagar, causing stampede, which resulted in the death of 42 persons and causing injury to 37 persons. In the detention order, it is further stated that a History Sheet was opened during 2002 against the petitioner and the same is still in existence on the file of the Inspector of Police, R-7 K.K. Nagar Police Station. It is also stated that the petitioner had come to adverse notice in R-7 K.K. Nagar Police Station Crime No.571 of 2005 for offences under Sections 147, 148, 336 IPC. and Sections 2 (1) and 3 of TNPPPDL Act; and two earlier cases in Crime Nos.944 of 2003 and 371 of 2004 on the file of K.K. Nagar Police Station, which had ended in acquittal. It is also stated that on the basis of the case in Crime No.747 of 2005 on the file of MGR Nagar Police Station, which relates to offences under Sections 147, 109, 120-B, 304, 323 and 325 IPC., the impugned order of detention has been clamped on the petitioner. The said detention order is under challenge in the above petition. https://hcservices.ecourts.gov.in/hcservices/ 4. Heard Mr.N.R.Elango, learned counsel for the petitioner and Mr.L.Nageswara Rao, learned Senior Counsel for the respondents. 5. After taking us through the grounds of detention and all other connected materials, learned counsel for the petitioner has raised the following contentions:- (i) In view of only one adverse case, the occurrence relating to which is said to have taken place on 19.04.2005, and the ground case dated 18.12.2005, the petitioner cannot be branded as "goonda' in terms of Section 2 (f) of Tamil Nadu Act 14 of 1982, as he has not habitually committed offences under Chapters.XVI, XVII and XXII of the Indian Penal code. Further, on comparing these two cases, it cannot be said that the petitioner indulged in "similar repetitive" acts, hence, the order of detention is not sustainable. (ii) Though the petitioner has made a representation on 06.01.2006 to the Detaining Authority, which contained the observation made in Crl.O.P. No.35353 of 2005, dated 05.01.2006, in spite of the fact that the Commissioner of Police received the same on the very same date, ie., on 06.01.2006, without forwarding the same to the Approving Authority/Government, he waited for two days and thereafter replied that since the Government approved the detention order on 09.01.2006, he could not pass any order on his representation and forwarded it to the Government, which in turn, rejected the same on 13.01.2006. Learned counsel submits that the Detaining Authority ought not to have waited till 09.01.2006 and that the Authority deliberately kept the representation pending till 09.01.2006 for the Government to approve the order of detention. (iii) Though the order dated 05.01.2006, made in Crl.O.P. No.35353 of 2005, dismissing the cancellation of bail was delivered to the Detaining Authority on 06.01.2006 itself, the same was not placed before the Government/Approving Authority, which vitiates the order of detention. (iv) In paragraph No.14 of the grounds of detention, though the Detaining Authority https://hcservices.ecourts.gov.in/hcservices/ has taken note of the involvement of the petitioner in two earlier criminal cases, which ended in acquittal, the copies of the orders relating to those cases were neither placed before the Approving Authority nor supplied to the detenu. According to the counsel, when both the documents were relied on by the Detaining Authority while arriving at subjective satisfaction for passing the order of detention, he ought to have placed the copies of the same before the Approving Authority as well as supplied the same to the detenu; and failure on the part of the Detaining Authority in doing so, vitiates the order of detention. (v) The Government/Approving Authority failed to consider the order of the learned single Judge of this Court made in Crl.O.P. No.35353 of 2006, dated 05.01.2006, wherein, the learned Judge, while dismissing the petition filed by the State to cancel the bail granted to the petitioner, has observed that " ...... even if taken as true, no offence is made out ....." . In view of the said conclusion, according to the learned counsel, the basis of the detention order is wiped out. (vi) In view of defect and variation in translation of some of the documents supplied by the Detaining Authority, the detention order is liable to be quashed on the ground of non- application of mind on the part of the Detaining Authority. (vii) Inasmuch as the Detaining Authority has made a statement, implicating the political party to which the petitioner belongs to, one way or other, with mala fide intention and also to divert the issue of mishandling on the part of the police and Revenue Officials, he clamped the impugned order of detention on the detenu. 6. Learned Senior Counsel appearing for the respondents, by placing counter affidavit and relevant materials and records, met all the contentions raised by the counsel for petitioner. (a) According to him, inasmuch as both adverse case and ground case fall under Chapter https://hcservices.ecourts.gov.in/hcservices/ Nos.XVI, XVII and XXII of the Indian Penal Code, that would be sufficient and there need not be "similar repetitive act" as claimed by the petitioner. (b) There was no delay at all on the part of the Detaining Authority in considering the representation, which was received on 06.01.2006, since the next two days, ie., 07.01.2006 and 08.01.2006, being Saturday and Sunday were holidays, and on 09.01.2006 itself, the Approving Authority confirmed the order of detention, hence, the Detaining Authority rightly forwarded the representation to the Government. In any way, according to him, no prejudice has been caused to the detenu. (c) With regard to the observations made in the order of the Sessions Court granting bail to the petitioner or in the order passed by the learned Judge of this Court while dismissing the petition filed for cancellation of bail, it is submitted that those observations are not conclusive and not required to be placed before the Detaining Authority or the Approving Authority. (d) Regarding non-consideration of two cases (which ended in acquittal) referred to in paragraph No.14 of the grounds of detention, learned Senior Counsel submitted that the Detaining Authority has not relied upon those cases or the orders passed therein and that it made only a reference to the same, hence, there is no need to place those orders before the Approving Authority or supply the same to the detenu. (e) In respect of the contention regarding failure on the part of the Government to consider the order of the learned Judge of this Court, dated 05.01.2006, made in Crl.O.P. No.35353 of 2005, it is stated that since the observations were made while disposing of the Miscellaneous Application, the same are not relevant and no importance need be given for the same. (f) Regarding the contention relating to non-application of mind on the part of the Detaining Authority or variation in the translation, learned Senior Counsel submitted that https://hcservices.ecourts.gov.in/hcservices/ it is only a typographical error, which is trivial in nature, and that the same has not prejudiced the detenu in any way. (g) As regards the last contention relating to mala fide, it is stated that since the Commissioner of Police, in his counter affidavit, has denied having given any such press statement, implicating the political party of the petitioner, and in view of constitution of a Judicial Commission to go into the happening of the incident, absolutely, there is no basis for the allegation made by the petitioner. 7. We have considered the grounds of detention, all connected materials and the rival submissions of the counsel on either side. 8. Regarding the first contention, it is useful to refer the definition for the term "Goonda" as provided in Section 2 (f) of Act 14 of 1982, which reads as under:- "(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, 1860 (Central Act No.45 of 1860);". Sub-clause (a) (iii) of Section-2 is also relevant which reads thus, "2. Definitions.-- In this Act, unless the context otherwise requires,-- (a) "acting in any manner prejudicial to the maintenance of public order", means-- (i) .......... (ii) .......... (ii-A) .......... (iii) in the case of a goonda, when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order; ........" https://hcservices.ecourts.gov.in/hcservices/ 9. It is the claim of the learned counsel for the petitioner that the only adverse case, referred to in the grounds of detention, which relates to the alleged occurrence on 19.04.2005, was registered as Crime No.571 of 2005 on the file of R-7 K.K. Nagar Police Station, for offences under Sections 147, 148 and 336 IPC and Sec.2(1) and 3 of TNPPPDL Act, whereas, the ground case, dated 18.12.2005, relates to various offences under Sections 147, 109, 120-B, 304, 323 and 325 IPC. According to Mr. N.R.Elango, learned counsel for the petitioner, inasmuch as the Detaining Authority has considered the above two cases alone, by comparing the same, it cannot be said that the petitioner indulged in "similar repetitive acts". He also contended that even according to the Detaining Authority, there is a gap of eight months between the adverse case and the ground case. In support of his above contention, he drew our attention to a Division Bench decision of this Court reported in 2004-2-L.W.-Crl.-717 (Murugan, etc. v. The District Collector & District Magistrate, Kanyakumari Dist. & another), to which one of us (P. SATHASIVAM, J.) was a party, more particularly by laying emphasis on the following observations in paragraph No.21 thereof:- " While the acts of doing frequently are to be called as the acts of repetition instead of the acts of redoing, what should be available is the time track of the said acts. That is to mean not only the frequency, but also uniformly frequent acts. But, in this case, the first two adverse cases may be said to have been committed with such uniform frequency, because the first adverse case is dated 15.6.1998 and the second adverse case is dated 12.8.1998. In order to attract the habitual commission of offences, the other cases including the ground case should have been committed with such uniform interval of time and not with such a long gap of five years as found in this case. This gap would again snap the applicability of the term 'habitually' in order to attract Section 2(f) of the Tamilnadu Act 14 of 1982. ....." Again, he laid emphasis on the conclusion made in paragraph No.22 of the above decision, which is extracted below:- "...... It was repeatedly held that there should be material on record to show that the reach and potentiality of the single incident was so great as to disturb even the tempo or normal life of the community in the locality or to disturb the general peace and https://hcservices.ecourts.gov.in/hcservices/ tranquility or create a sense of alarm and insecurity in the locality. Mere words in the nature of ritual in the order of detention may not be sufficient. ......" 10. Learned counsel for the petitioner also relied on a Judgment of the Supreme Court reported in 1984 (3) SCC page No.14 (Vijaya Narain Singh Vs. State of Bihar and others). In paragraph No.31, Their Lordships have held 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. It connotes frequent commission of acts or omission of the same kind referred to in each of the said sub- clauses or an aggregate of similar acts or omissions. ......" In paragraph No.32, the Honourable Supreme Court, after finding that the two incidents relied on by the District Magistrate are of different kinds altogether and that they are, even if true, not repetitions of acts or omissions of the same kind, and after concluding that the District Magistrate failed to apply his mind to the above aspect, quashed the detention order passed against the petitioner therein. 11. Mr.L.Nageswara Rao, learned Senior Counsel for the respondents, by pointing out the definition to the term "Goonda" as provided in Section 2(f) of the Tamil Nadu Act 14 of 1982, submitted, (a) that the petitioner should be a habitual offender; and (b) the offences alleged in both instances fall within Chapter Nos.XVI, XVII and XXII of the Indian Penal Code. He relied on an unreported decision of this Court, dated 03.01.2006, in HCP No.913 of 2005 (to which one of us (P.SATHASIVAM, J.) was a party), wherein, this Court, after relying on various earlier orders of this Court as well as the Supreme Court in 2004 (8) SCC 591 (State of U.P. vs.Sanjai Pratap Gupta), confirmed the detention order. It was held by the Supreme Court in the said decision that the stand that a single act cannot be considered sufficient for holding that public order was affected is without substance. It was further held that it is not the https://hcservices.ecourts.gov.in/hcservices/ number of the acts that matters and what has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its impact. 12. Learned Senior Counsel also placed reliance on the decision reported in 1993-Law Weekly (Cri) 113 (Subbaiah v. The Commissioner of Police, Madras City) and he pressed into service the following passage in paragraph No.28:- " In our view the question to be decided by the court is whether the materials taken into account by the detaining authority are relevant to enable him to arrive at subjective satisfaction as to whether the person concerned is a goonda and whether he is acting in a manner prejudicial to the maintenance of public order. We have already referred to the definition of 'goonda' in Sec.2(f) Section 3(1) of the Goondas Act provides that the order of detention shall be made with a view to prevent the person concerned from acting in any manner prejudicial to the maintenance of public order. Thus the order of detention under Sec.3(1) is to prevent the person concerned from acting in a manner prejudicial to the public order. 'Acting in a manner prejudicial to the maintenance of public order' has been defined in Sec.2(e). In so far as a goonda is concerned it is defined as follows: "In the case of a goonda, when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order" The definition of 'goonda' refers to the habitual commission or attempt to commit or abatement (Sic.) of the commission of offences specified in the section. When a person is found to be a goonda it goes without saying that he is a person who habitually commits or attempts to commit or abets commission of offences. Hence it is not necessary further for the authority to wait for his committing another act which is likely to cause prejudice to the maintenance of public order. If the facts and circumstances placed before the authority are sufficient to enable him to arrive at the conclusion that he is a goonda then those facts and circumstances are sufficient to consider the second question also https://hcservices.ecourts.gov.in/hcservices/ as to whether such acts will cause prejudice to the maintenance of public order. The object of the Act is to prevent the person concerned to act in a manner prejudicial to the maintenance of public order. It would be futile to contend that the authority should wait till he acts in such a manner. In that case it will not be preventive detention but a case of detention after the commission of the offence. Hence a reading of S.3 (1) together with S.2(a) and (f) of the Goondas Act makes it clear that if the commission of offences is sufficient to brand a person as a goonda within the meaning of S.2(f) they can themselves be taken into account for considering the question whether he is acting in a manner prejudicial to the maintenance of public order. 13. We have carefully verified the factual position in all the above referred cases in the light of the definition to the term "Goonda" as stated in the Tamil Nadu Act 14 of 1982. Though there is no similarity between the offences committed in the adverse case and the ground case, inasmuch it is not in dispute that the offences alleged in both the instances fall within Chapters.XVI, XVII and XXII of IPC., it cannot be said that the Detaining Authority is not right in passing the order of detention. As rightly pointed out, the two instances found in Vijay Narain Singh's case (1984 (3) SCC 14) are completely different. In 2004- 2-L.W.-Crl.-717 (cited supra), the ground case was after a period of five years from the last adverse case. This is not the situation in this case. In such circumstances and in view of the fact that in the case on hand, the offences said to have been committed both in the ground case and in the adverse case fall under the Chapters of the Indian Penal Code, we are of the view that depending upon the subjective satisfaction of the Detaining Authority, he is free to pass the detention order. The argument that only when a person indulges in "similar repetitive acts", detention order could be clamped, cannot be accepted. It is made clear that if both adverse case and ground case fall under Chapter Nos.XVI, XVII and XXII of IPC., that would be sufficient, of course, depending upon the subjective satisfaction of the Detaining Authority for clamping the detention order. In the light of the above discussion and conclusion, we are unable to accept the first contention of the learned counsel for the petitioner. 14. Coming to the second contention, it is not in dispute that the petitioner has a right of making representation to the Detaining Authority. In this case, according to the petitioner, he made a representation on 06.01.2006 to the Detaining Authority, wherein he cited the observations made by the learned Judge of this court in Crl.O.P. No.35353 of 2005, dated 05.01.2006. It is also https://hcservices.ecourts.gov.in/hcservices/ his claim that the Detaining Authority, ie., Commissioner of Police, Greater Chennai, though received the same on 06.01.2006, replied only on 09.01.2006, stating that the Government of Tamil Nadu had already approved the detention and hence, he was forwarding his representation dated 06.01.2006 to the Government. The Approving Authority, viz., Government, rejected the said representation on 13.01.2006. It is the grievance of the petitioner that the Detaining Authority ought not to have waited till the detention order was approved by the Government on 09.01.2006 and taken a stand that he could not consider the representation as it was approved by the Government, hence, the right of making representation is thus denied. 15. It is not in dispute that the Commissioner of Police received the representation on 06.01.2006 itself. It is the stand of the Commissioner of Police that 07.01.2006 and 08.01.2006, being Saturday and Sunday, were Holidays and that when he was about to send the representation on 09.01.2006, the Government/Approving Authority confirmed the detention on the same day, ie., on 09.01.2006. If we exclude the Holidays, the Detaining Authority cannot be blamed. 16. Learned Senior Counsel for the respondents relied on the orders of this Court rendered in HCP No.834 of 2005, dated 02.01.2006, and HCP No.550 of 2005, Order dated 24.10.2005. In these cases, this Court, while considering the delay in disposal of the representation of the detenu, excluded the public holidays. Inasmuch as 07.01.2006 and 08.01.2006, being Saturday and Sunday were holidays, the Detaining Authority had no other go except to forward the representation of the detenu to the Government on the next working day, ie., on 09.01.2006. He further contended that because of the same, no prejudice was caused to the detenu. Though Courts, while considering delay in disposal of the representation of the detenu, accept the exclusion of the holidays, in this case, the duty cast on the Detaining Authority is to forward the representation of the detenu to the Approving Authority, ie., the Government. 17. It is the grievance of the petitioner that the said representation which contained the observations made by the Judge of this Court in Crl.O.P. No.35353 of 2006, dated 05.01.2006, was not brought to the notice of the Government. The said petition was filed for cancellation of bail granted in favour of the detenu by the I Additional Sessions Judge, Chennai. While dismissing the said petition filed by the State, the learned Judge, after going through the contents of the First Information Report, which was registered on 18.12.2005 at 5 A.M., Alteration Report dated 19.12.2005 and statement of various persons made under Section 161 Cr.P.C.; and after analysing the same, has concluded thus:- https://hcservices.ecourts.gov.in/hcservices/ ".... the statements of witnesses do not disclose that it is the respondent and the co- accused Ravi and Senthil spread the rumour for the crowd assembled in the school occurrence place on 18.12.2005 at 3.00 a.m. and it is also not known as to how witnesses Jaisankarnoth, Chinnathai and other witnesses as well the public were assembled on 18.12.2005 at 3.00 a.m. before the Arignar Anna corporation Higher Secondary School situated near M.G.R. Nagar Market for the purpose of obtaining flood relief materials. " It is the contention of the learned counsel for the petitioner that if these observations were taken into consideration by the Government, the order of detention would not have been approved. 18. Though it is stated that it is only a prima facie