IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.11.2007 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.1067 of 2007 Rajendran .. Petitioner Vs. 1. The Commissioner of Police Greater Chennai, Egmore Chennai-8. 2. The Secretary Government of Tamilnadu Home, Prohibition and Excise Department Fort St.George, Chennai-9. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue Habeas Corpus as stated therein. For Petitioner : Mr.S.Paneerselvam For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R (Order of the Court was made by P.D.DINAKARAN,J.) The first respondent herein clamped an order of detention as against the petitioner (detenu), as the said authority arrived at the subjective satisfaction that the said detenu is a Goonda and he has to be detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Officers, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). 2. Challenging the abovesaid detention, the detenu has come forward with the present Habeas Corpus Petition seeking a writ of habeas corpus to call for the records leading to the detention https://hcservices.ecourts.gov.in/hcservices/ order Memo No.125/BDFGISSV/2007, dated 26.3.2007 passed by the first respondent and to direct the respondent to produce the body of the detenu, now confined in Central Prison-II, Puzhal, Chennai, before this Court and to set him at liberty. 3.1. The order of detention dated 26.3.2007 was passed on the basis of ground case in Crime No.144 of 2007 for alleged commission of offences under Sections 341, 336, 392 and 506(2) IPC, complaint of which was lodged by one Sekar. According to Sekar, on 14.3.2007, while he was proceeding to Aminjikarai through Thiru.Vi.Ka Park, the detenu wrongfully restrained him, beat him over his cheek, tore his shirt and threatened him. Thereafter, he inserted his hand into the shirt pocket of the complainant and took away Rs.140/- and snatched his wrist watch. When the complainant prevented the same and raised hue and cry, the detenu took out a knife and threatened to kill him, he also snatched te dollar hanging in complainant's neck. The detenu pushed the complainant on the road and kicked him with his leg. On hearing the hue and cry of the complainant, the public at the spot came for his rescue. The detenu threatened them at knife point to kill them. The public who were at the spot noticed the atrocious activities and ran for safer places out of fear of danger to their lives and properties. At that time, the police personnel attached to K3 Aminjikarai Police Station, who were on rounds, came to the spot and the complainant informed them about the happenings and the they surrounded the detenu, apprehended him and retrieved the knife and other items. Based on the complaint given by Sekar a case, as stated above, was registered. 3.2. Apart from the above, the detaining authority also took note of the four adverse cases pending against the detenu, viz., i. Crime No.352 of 2006 registered on the file of Thirumangalam Police Station for the offence punishable under Section 420 IPC with reference to the occurrence said to have taken place on 8.12.2006; ii. Crime No.25 of 2007 registered on the file of Aminjikarai Police Station for the offence punishable under Section 380 IPC with reference to the occurrence said to have taken place on 14.1.2007 and 16.1.2007; iii. Crime No.141 of 2007 registered on the file of Aminjikarai Police Station for the offence punishable under Section 380 IPC with reference to the occurrence said to have taken place on 7.3.2007; and https://hcservices.ecourts.gov.in/hcservices/ iv. Crime No.138 of 2007 registered on the file of Aminjikarai Police Station for the offence punishable under Section 380 IPC with reference to the occurrence said to have taken place on 10.3.2007. 3.3. The detaining authority, having satisfied that the detenu is indulging in activities which are prejudicial to maintenance of public order, passed the impugned order. 4. The learned counsel for the petitioner placing reliance on the decision of the Apex Court in DARPAN KUMAR SHARMA alias DHARBAN KUMAR SHARMA v. STATE OF TAMIL NADU [(2003) 1 CRIMES 446], contends that three adverse cases relate to the offence punishable under Section 380 I.P.C., and therefore, the solitary instance of robbery mentioned in the ground case is not relevant for sustaining the order of detention and hence, the impugned order of detention suffers on the ground of non-application of mind on the part of the detaining authority. 5. Mr.N.R.Elango, learned Additional Public Prosecutor supporting the order of detention contends that the detenu is habitually committing crime and has also acted in a manner prejudicial to the maintenance of public order and his detention is justified. 6. We have perused the entire materials placed before us and heard the submissions of both sides. 7. With regard to the submission that the detenu is habitually committing crime, a reference to the decision of the Apex Court in R. Kalavathi v. State of T.N.,(2006) 6 SCC 14 would be relevant: "10. Habitual: the meaning of the words “habit” and “habitual” as given in Advanced Law Lexicon , (3rd Edn.) by P. Ramanatha Aiyar is: “ Habit .—Settled tendency or practice, mental constitution. The word ‘habit’ implies a tendency or capacity resulting from the frequent repetition of the same acts. The words by ‘ habit ’ and ‘ habitually ’ imply frequent practice or use.” “ Habitual .—Constant; customary; addicted to a specified habit.” https://hcservices.ecourts.gov.in/hcservices/ 11. This Court in Vijay Narain Singh v. State of Bihar, 1984 (3) SCC 14 considered the question of a habitual criminal and in para 31 the expression “habitually” was explained 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.” The expression “habitual” would mean repeatedly or persistently and implies a thread of continuity stringing together similar repeated acts. An isolated default of rent would not mean that the tenant was a habitual defaulter. (See Vijay Amba Das Diware v. Balkrishna Waman Dande, 2000 (4) SCC 126) 12. The expression “habit” or “habitual” has not been defined under the Gujarat Prevention of Anti-Social Activities Act, 1985. The word “habitually” does not refer to the frequency of the occasions but to the invariability of a practice and the habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a “dangerous person” unless there is material suggesting his complicity in such cases, which lead to a reasonable conclusion that the person is a habitual criminal. The word “habitually” means “usually” and “generally”. Almost similar meaning is assigned to the word “habit” in Aiyar’s Judicial Dictionary , 10th Edn., at p.485. It does not refer to the frequency of the occasions but to the invariability of practice and the habit has to be proved by totality of facts. (See Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta, 1995 (3) SCC 237). 13. The expression “habitually” is very significant. A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be continuity in the commission of those offences. (See Ayub v. S.N. Sinha, 1990 (4) SCC 552) https://hcservices.ecourts.gov.in/hcservices/ 14. From one single transaction though consisting of several acts, a habit cannot be attributed to a person." 8. That apart, the Apex Court in DARPAN KUMAR SHARMA @ DHARBAN KUMAR SHARMA v. STATE OF TAMIL NADU, referred supra, held as follows:- "... Though in the grounds of detention the detaining authority had stated that by committing this offence in public the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, but citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter. Thus, a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order." 9. The above ratio laid down by the Apex Court in DARPAN KUMAR SHARMA @ DHARBAN KUMAR SHARMA v. STATE OF TAMIL NADU, referred supra, was subsequently followed by a Division Bench of this Court, in which one of us (P.D.DINAKARAN, J.) was a party, in MALA v. THE SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT, GOVT. OF TAMIL NADU, CHENNAI, [(2004) M.L.J. (Crl.) 306]. 10. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may also affect law and order but the same need not affect maintenance of public order. As rightly pointed out by the learned counsel for the petitioner, in the instant case, the three adverse cases relate to the offence punishable under Sections 380 I.P.C., whereas there is only one solitary instance, viz., the ground case, where the detenu had robbed in the public. In view of the decision in R. Kalavathi v. State of T.N.,(2006) 6 SCC 14, from one single transaction, though consisting of several acts, a habit cannot be attributed to a person, and the stand taken by the detaining authority that the detenu is habitually committing crime and acted in a manner prejudicial to the maintainable of public order cannot be sustained. Moreover, there is no material on record to show that the reach and potentiality of the single incident of robbery was so great as to disturb the even tempo or normal life of the community in the locality or disturb general peace and tranquillity or create https://hcservices.ecourts.gov.in/hcservices/ a sense of alarm and insecurity in the locality. We are of the considered opinion that the ratio laid down in DARPAN KUMAR SHARMA's case, cited supra, squarely applies to the case on hand. For the reasons aforesaid, the impugned order of detention suffers for non-application of mind and as such, the same is liable to be set aside and accordingly, the same is set aside. This petition is allowed. The order of detention dated 26.3.2007 is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required connection with in any other crime. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sasi To: 1.The Secretary to Government Home, Prohibition and Excise Department State of Tamilnadu Fort St.George, Chennai-9. 2.The Commissioner of Police Greater Chennai, Egmore Chennai-8. 3. The Superintendent Central Prison II, Puzhal, Chennai. 4. The Joint Secretary to Government Public (Law and order) Department Fort St. George, Chennai-9 5. The Public Prosecutor High Court, Madras. 1 cc to Mr.S. Panneerselvam, Advocate, SR. 66627 H.C.P.No.1067 of 2007 AKR (CO) kk 19/11 https://hcservices.ecourts.gov.in/hcservices/