IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28.11.2008 Coram : The Hon’ble Mr. Justice ELIPE DHARMA RAO and The Hon’ble Mr. Justice S.TAMILVANAN H.C.P.No.1540 of 2008 M.Lakshmi ... Petitioner vs. 1. The Secretary to Government. State of Tamil Nadu Home Prohibition and Excise Department, Fort St. George, Chennai – 600 009. 2. The Commissioner of Police Chennai City, Egmore, Chennai- 600 008. ... Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, seeking to call for the records relating to the second respondent in Memo No.267/BDFGISSV/2008 dated 16.08.2008 and quash the same as illegal and consequently direct the respondents to produce the detenu Bala @ Balamurugan, TPDA detenu who is now confined in Central Prison, Puzhal, Chennai and set him at liberty. For Petitioner : Mr.Munirathina Naidu for Mr.S.S.Kumar For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R S.TAMILVANAN, J. This Habeas Corpus petition has been filed by the petitioner against the order of detention, dated 16.08.2008 passed by the Commissioner of Police/detaining authority, Chennai City, who is the second respondent herein. The petitioner herein is the mother of the detenu, who was detained as 'Goonda' under Tamil Nadu Act 14 of 1982. There is one adverse case and one ground case registered https://hcservices.ecourts.gov.in/hcservices/ against the detenu. The adverse case registered against the detenu Bala @ Balamurugan is in Crime No.754 of 2008 on the file of A-10, Koyambedu Police Station for the offence punishable under Sections 364 (A), 392, 394, 398 IPC. 2. As per the adverse case, the occurrence is that on 14.07.2008 at about 9.15p.m., while the defacto complainant Balasbramanaian, and two others were proceeding to Koyambedu bus stand, Chennai with a huge amount of rupees forty lakhs cash, in an auto rickshaw bearing Registration No.TN-01-W-2927, at the Koyambedu Roundana, opposite to Hotel Shan Royal, the detenu along with four other co-accused in the case came to the place in two motor cycles, wrongfully restrained the said auto and at the same time, a Maruthi Van bearing Registration No.TN-05-X-2235 also driven nearby the auto and eight named accused persons got down from the said van and beaten the auto driver and pushed him out then at the point of knife and log, threatened the defacto complainant and two others sitting in the auto rickshaw assaulted them by causing bodily injuries and snatched away an amount of Rs.40,00,000/-from them. Then on the complaint filed by the defacto complainant, before A-10, Koyambedu Police Station the case in Crime No.754 of 2008, was registered under Sections 364 (A), 392, 394, 398 IPC and was taken up for investigation by the Inspector of Police of the said police station. 3.While so, on 18.07.2008, at about 18.00hrs, the detenu and some of the absconding accused of the adverse case went to the premises of a fast food, run by one Babu, defacto complainant of the ground case, at No.3rd Avenue Road, Arumbakkam, Chennai in a Qualis Car bearing Registration No.TN-09-U 7273 and took fried rice. When the said Babu demanded money payable for the fried rice they had taken there, the detenu and the other accused refused to pay the amount Hence the said defacto complainant informed them that he would go to police and report the occurrence, for which he was beaten up over his check by the detenu and was threatened at the knife point by the detenu and the co-accused. When Babu, the defacto complainant raised hue and cry hence the detenu and others threatened him and the public at the point of knife saying that they will kill any body who comes to the rescue of the defacto complainant. Hence, out of fear and danger to their lives, the general public ran away from there, for safer places and nearby shop keepers having noticed the incident, closed their shops out of fear. Taking advantage of the panic situation the detenu and others escaped from the spot. Then the said Babu proceeded to K-3, Aminjikarai Police Station and lodged the complaint relating to the ground case, based on which the case in Crime No.442 of 2008 was registered under Sections 147, 148, 341, 323, 384 and 386 IPC and was taken up for investigation. On 16.07.2007 at about 14 hrs., Yogeswaran @ Mani and Kumar, the co-accused in the adverse case, https://hcservices.ecourts.gov.in/hcservices/ were arrested at Redhills Road, Chennai. Based on the confession statement given by the co-accused, an amount of Rs.10.25 lakhs was recovered from them under the cover of a mahazar, then the said accused along with the case property were produced before the Vth Metropolitan Magistrate, Egmore, Chennai and were remanded to judicial custody till 31.07.2008. Then their remand was further extended till 27.08.2008. During the course of investigation, on 23.07.2008, at about 18 hrs., the detenu and another accused by name Alex @ Savarimuthu Alex were arrested at 200 feet road near Lucas Bus Stop, Chennai and on the confession statement given by the detenu and the said co-accused, a total sum of Rs.2,17,000/- was recovered from the detenu and the co-accused under the cover of Mahazar. Then, the detenu and the co-accused were produced with the case property before the VII Metropolitan Magistrate, Egmore, Chennai and remanded to judicial custody till 31.07.2008. The remand was further extended periodically till 27.08.2008. Learned Additional Public Prosecutor submitted that as per the detention order, the detaining authority having got subjective satisfaction considering the materials placed before him has passed the detention order. 4.The petitioner, mother of the detenu has challenged the detention order on various grounds. According to her, the detaining authority had not intimated about the arrest as well as the detention of the detenu to the blood relatives of the detenu which has vitiated the detention order. 5. Per Contra, learned Additional Public Prosecutor drew the attention of this Court to Page No.243 and 245 of the booklet supplied to the detenu, wherein one Anthony Raj friend of the detenu has been intimated for which the detenu himself has signed. As submitted by the learned Additional Public Prosecutor, the address of the intimated person is also given in the arrest memo stating him as friend of the detenu which is acknowledged by the detenu himself by putting his signature. As per the decision of the Hon'ble Supreme Court in D.K.Basu vs. State of W.B, reported in 1997 SCC (Cri) 92, the arrest and detention have to be intimated either to any family member, relative or friend of the detenu. In the instant case, it is seen that a friend of the detenu has been intimated which was acknowledged by the detenu himself. 6. The next contention raised by the petitioner is that all the documents were not placed by the sponsoring authority to the detaining authority for having subjective satisfaction in passing the detention order. According to the Additional Public Prosecutor, the documents placed before the detaining authority are sufficient to have subjective satisfaction and all the copies of the relied on documents were furnished to the detenu without delay. There is no specific allegation by the petitioner, on the non- https://hcservices.ecourts.gov.in/hcservices/ supply of copy of any relied on document by the detaining authority. On a perusal of the materials, we are of the view that copies of all the relied on documents have been furnished to the detenu, to make effective representation before the authorities. 7. Mr.Munirathina Naidu, learned counsel appearing for the petitioner submits that the detenu was arrested on 17.07.2008 itself but he was illegally kept in custody till 23.07.2008 but the same is not supported by any evidence or material. As contended by the learned Additional Public Prosecutor, when, the detenu was produced for remand on 23.07.2008, before the V Metropolitan Magistrate, Egmore, Chennai, no such complaint or representation was made by the detenu. Hence, the illegal detention alleged by the petitioner cannot be accepted, as the same is not supported by any material. 8.Learned Additional Public Prosecutor, on the other hand, contended that there are enough materials to substantiate the adverse case and the ground case registered against the detenu and others to have subjective satisfaction. It is seen that an amount of Rs.10.25 lakhs was recovered on 16.07.2007 based on the confession given by the co-accused and Rs.2,17,000/- was recovered on the confession statement given by the detenu and the other accused, under the cover of a Mahazar which are supported by documents. According to the learned Additional Public Prosecutor, the alleged offence relating to the adverse case was committed on 14.07.2008 at about 9.15 p.m. nearby Koyambedu Bus Stand, Chennai, in a very busy locality of Chennai, where number of persons are coming from various places of the State and out side the State to Chennai and also proceeding to various places from Chennai, on account of their business purpose, or on other reasons. For committing the crime, the detenu and other co-accused have used various vehicles, such as motor cycles, Maruti Van, apart from cell phones for collecting information and also to have proper co- ordination between them in order to commit the crime. They attacked the defacto complainant and two others by knife and wooden log and also threatened the public, whereby snatching a huge amount of Rs.40,00,000/- which would certainly create panic in the minds of business men and the general public in the busy area. Similarly as per the ground case, the detenu and others threatened the public at knife point after having attacked the defacto complainant, the owner of the fast food and cased injuries, so as to create panic in the minds of the public. Within the short interval the detenu along with other accused has acted in a manner prejudicial to the maintenance of public order. 9. Mr.Munirathina Naidu, learned counsel appearing for the petitioner, relied on various decisions of the Apex Court and this Court and submitted that the alleged occurrence cannot be https://hcservices.ecourts.gov.in/hcservices/ construed as an act prejudicial to the maintenance of public order. According to him, the occurrence, as stated by the prosecution would be prejudicial to the maintenance of 'law and order' and not 'public order', hence, the detenu could not have been detained under Act 14 of 1982, as a 'Goonda'. 10. In this connection, we find it relevant to refer the ruling of the Honourable Supreme Court of India which has already distinguished the term 'Public Order' from 'Law and Order'. In the decision in Ram Manohar Lohia vs. The State of Bihar and another reported in 1969 M.L.J.(Crl.) 642 it is held as follows: "Does the expression "public order" take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from 'law and order" because the later undoubtedly takes in all of them. Public order, if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large". 11. In the decision in Pushkar Mukherjee and 29 others vs. The State of West Bengal reported in 1969 (1) SCC 10 the Apex Court has observed as follows: "15.The difference between the concepts of a 'public order' and 'law and order' is similar to the distinction between 'public' and 'private' crimes. Dr.Allen has distinguished 'public' and 'private' crimes in the sense that some offences primarily injure specific persons and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely". 12.In Arun Ghosh vs. State of West Bengal reported in AIR 1970 SC 1228 it has been held as follows: "Public Order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be https://hcservices.ecourts.gov.in/hcservices/ distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility". 13. In Dipak Bose alias Naripada vs. State of West Bengal reported in 1973(4) SCC 43; the Apex Court has observed as follows: "4. Every assault in a public place like a public road and terminating in the death of a victim is likely to cause horror and even panic and terror in those who are the spectators. But, that does not mean that all of such incidents do necessarily case disturbance of dislocation of the community life of the localities in which they are committed. It is not alleged in on the grounds that they were exploded to case terror in the locality so that those living there would be prevented from following their usual avocations of life". 14. In Smt. Angoori Devi vs. Union of India reported in AIR 1989 SC 371 it is observed as follows: "The impact on 'public order' and law and order' depends upon the nature of the act, the place where it is committed and the motive force behind it. If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only". 15. In Piyush Kantilal Mehta vs. Commissioner of Police, Ahemdabad and another reported in AIR 1989 SC 491 it has been held as follows: "In order that an activity may be said to affect adversely the maintenance of public order, there must be materials to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order." https://hcservices.ecourts.gov.in/hcservices/ 16. In the decision reported in Abdul Razak Nannekhan Pathan vs. Police Commissioner, Ahamedbad reported in 1989(4) SCC 43, the Honourable Apex Court has held that the criminal activities, which are confined to certain private individuals, are construed only as law and order problem which cannot be an act against maintenance of public order. 17. In the decision Mustakmiya Jabbarmiya Shaikh vs. M.M.Mehta, Commissioner of Police and others reported in 1995 SCC (Crl.) 454, the Honourable Apex Court has drawn the line of distinction between 'law and order' and maintenance of 'public order' as follows: " A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused. In order to bring the activities of a person within the expression of 'acting in any manner prejudicial to the maintenance of public order', the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large." 18. If there are materials to show that any act or activity, has created fear or panic in the minds of the public, up setting even the tempo of life of the community or general public without confined to any individual, such an act or activity has to be construed as an act, prejudicial to the maintenance of public order and not a mere law and order problem. 19. The materials placed before the detaining authority, reveal the fact that the detenu and his associates were chasing the defacto complainant and two others while they were proceeding to Koyambedu bus stand after knowing that they were carrying a huge amount with them and wrongfully restrained the auto on the way while the same was proceeding to Koaymbedu Bus stand and kidnapped them after assaulting them at the knife point and snatched the amount of Rs.40,00,000/- then by pushing them one by one from the running vehicle, whereby created panic in the minds of the public who were carrying huge money and other valuable to one place to other in the busy locality. The detenu and others have used cell phones in committing the crime with proper co-ordination between them, in committing the crime. https://hcservices.ecourts.gov.in/hcservices/ 20. On a perusal of the materials and the order of detention, We are of the view that there is no delay in passing the order of detention as alleged by the petitioner. The arrest as well as the detention were intimated by the authorities as per law which has been verified by the detenu himself by affixing his signature. Similarly copies of all relied on documents were furnished to the detenu in the form of a booklet without causing delay with translated copies in Tamil, the language known to the detenu. As contended by the learned Additional Public Prosecutor, the injury sustained by the defacto complainant and others and the huge amount of Rs.10.25 lakhs recovered from the co-accused and Rs.2,17,000/- recovered from the detenu and the other accused on the basis of their confession statement under the cover of Mahazar would clearly reveal the fact that it could not be foisted cases against the detenu and others. 21. The materials placed before the detaining authority shows that on 18.07.2008 the detenu had threatened the defacto complainant in the ground case, who is running the fast food, at the point of knife, and also caused injuries. While the defacto complainant raised hue and cry, the detenu and other accused threatened the public that anybody who would come to his rescue would be killed if they proceed forward towards them, which has created fear and panic in the minds of the common public, due to which they went to safer places and the nearby shopkeepers closed their shutters, as per the materials placed before the authority which shows that the occurrences relating to the adverse case and the ground case were prejudicial to the maintenance of public order. 22. On a perusal of the impugned order and the materials available on record, We are of the view that the occurrence relating to the ground case and the adverse case would attract Section 2(f) of the Tamil Nadu Act 14 of 1982. The aforesaid activities of the detenu, in the light of various decisions rendered by the Honourable Apex Court, could be construed as prejudicial to the maintenance of public order. It is seen that both the occurrence had taken place in two different busy areas at Chennai, during night hours., which cannot be said as mere offences against private individuals. The materials available on record would show that it has created fear and panic in the minds of law abiding people in the area where the occurrences had taken place. 23. Learned counsel for the petitioner submitted that the detaining authority has passed the order mechanically, since the authority has admitted that the detenu had not filed any bail petitions before any Court and hence, there is no likelihood of his coming out on bail, which according to him is non-application of https://hcservices.ecourts.gov.in/hcservices/ mind by the detaining authority. But, we are of the view that the non filing of bail application cannot be a ground to challenge the order, since the filing of bail petition is the right of any person, who has been arrested, and the same can be exercised by him, either directly or through an interested person. Hence, non- filing of bail petition cannot be a ground to set aside the detention order, on the ground that there is no likelihood of the detenu coming out on bail. However, subjective satisfaction of the detaining authority is an important factor in passing the detention order which is subject to judicial review. The Hon'ble Apex Court has held in Ibrahim Nazeer vs. State of Tamil Nadu and another reported in 2006(3) SCC 17 as follows: "On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with." 24.In this case the detaining authority has specifically stated in the impugned order that all the relied on documents and materials were placed before him and on perusal, after having satisfied that Thiru Bala @ Balamurugan is a 'Goonda' and as there has been compelling necessity to detain him in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of public order, the order was passed under the provisions of the Tamil Nadu Act 14 of 1982. 25. Therefore, we are of the view that there are sufficient materials placed before the detaining authority and the detaining authority has gone through the materials and passed the order only after having subjective satisfaction in passing the detention order, which in our considered view warrants no interference from this Court. 26. In the result, this Habeas Corpus Petition fails and the same is liable to be dismissed. Accordingly, this petition is dismissed. Smi Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government. State of Tamil Nadu Home Prohibition and Excise Department, Fort St. George, Chennai – 600 009. 2. The Commissioner of Police Chennai City, Egmore, Chennai- 600 008. 3. The Public Prosecutor, High Court, Chennai. 4. The Superintendent, Central Prison, Puzhal, Chennai. 5. The Joint Secretary to Government Public (Law and Order) Department Fort St. George, Chennai-9. rsi (co) dv/11.12. Order in H.C.P.No.1540 of 2008 https://hcservices.ecourts.gov.in/hcservices/