MRS. T. DEVAKI v.

GOVERNMENT OF TAMIL NADU AND ORS. -{

MARCH 7, 1990

[K.N. SINGH, M.H. KANIA AND KULDIP SINGH, JJ.]

Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Immoral Traffic Offenders and Slum Grabbers, Act, 1982.

c Detention Order-Whether detaining authority required to specify period of detention-Solitary incidelll of murderous assault-'Law and order' or 'public order' problem-Distinction between-Solitary incident can raise only a law and order problem and nothing more.

Detention Order-Subjective satisfaction-Detaining authority >--.

D himself present at the place of occurrence-Should have relied more on own knowledge and observations than report of sponsoring authority- Non-application of mind in making the order of detention-Order quashed.

This petition under Article 32 of the Constitution of India was "----.

E filed by the wife of the detenu challenging the validity of the Detention Order dated 15.8.1989 passed against her husband by the Collector and District Magistrate of Kamarajar District Virudhunagar, Tamil Nadu on allegations inter alia that the District Magistrate had issued the impugned order for detention of her husband, who is an active member of the All India Anna Dravida Munnetra Kazhagam party, an active ,

F social and political worker and ex-member of the Tamil Nadu Legislalive Assembly, at the behest of Respondent No. 3--a Minister in the 1 present DMK Government, on account of personal and political animosity between the two.

Counsel for the Detenu urged two grounds to attack the order of G detention. Firstly that the order did not specify the period of detention, and secondly that the sole ground of detention as reflected in the Grounds of Detention bas no relevance to the maintenance of 'Public Order' as the facts mentioned therein donot make out any case of viola- >--.. lion of public order. At best, it may be a case of law and order only which exhibits non-application of mind by the detaining authority.

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MRS. T. DEVAKI v. GOVT. OF TAMIL NADU 837

Allowing the writ petition and quashing the impugned order of detention on the ground of non-application of mind by the Detaining Anthority in passing the Detention order, this Court,

HELD: (1) Since the Act does not reqnire the detaining authority to specify the period for which a detenu is required to be detained the order of detention is not rendered invalid or illegal in the absence of such specification in the Detention order. [843E]

Commissioner of Police & Anr. v. Gurbux Anand ram Biryani, [1988] Supp. SCC 568-0ver-ruled. Ashok Kumar v. Delhi Administration & Ors., [1982] 2 SCC 403, Ujagar Singh v. The State of Punjab,

[1952] 3 SCR 756; Suna Ullah Butt v. State of Jammu & Kashmir, [1973] 1 SCR 870; Suresh Bhojraj Chelani v. State of Maharashtra, [1983] l SCC 382 and A.K. Roy v. Union of India & Ors., [1982] l SCC 271, approved.

(2) In a case where the_ detaining anthority may not be present at the place of the incident or the occurrence, he has to form the requisite opinion on the basis of materials placed before him by the sponsoring authority but where tbe detaining authority was himself present at tbe scene of occurrence he should have relied more on his own knawledge and observation then on the report of the sponsoring authority. [853H; 854A]

In the instant case, the detaining authority though present at the E scene of occurrence does not support the incident as presented to him by the sponsoring authority, and yet he issued the detention order on the report of sponsoring authority. In these circumstances, there was uonapplicalion of mind by the detaining authority in making the order of detention. [854B]

Dr. Ram Manohar Lohia v. State of Bihar, [1966] l SCR 709; Pushkar Mukherjee & Ors. v. The State of West Bengal, [1969] 2 SCR 635; Shyamal Chakraborty v. Commissioner of Police Calcutta & Anr.,

[1970] l SCR 762; Arun Ghosh v. State of West Bengal, [1970] 3 SCR 288; Nagendra Nath Monda/ v. State of West Bengal, [1972] 1SCC498; Sudhir Kumar Saha v. Commissioner of Police, Calcutta, [1970] 3 SCR 360; S.K. Kedar v. State of West Bengal, [1972] 3 SCC 816; Kanu Biswas v. State of West Bengal, [1972] 3 SCC 831; Kishori Mohan v.

State of West Bengal, [1972] 3 SCC 845; Amiya Kumar Karmakar v.

State of West Bengal, [1972] 2 SCC 672 and Manu Bhusan Roy Prodhan v. State of West Bengal & Ors., [1973] 3 SCC 663, referred to.

A CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 468 of 1989.

(Under Article 32 of the Constitution of India.)

R.K.Garg, K. Subramaniam, E.C. Agarwala, Ms. Purnima B Bhatt, Mr. V.K. Pandita, A.V. Pillai and Atul Sharma for the petitioner.

K. Alagiriswamy, Adv. General of Tamil Nadu, N. Natarajan, G. Krishnamurthy, V. Krishnamurthy and K. Rajendra Choudhury for the Respondents.

The Judgment of the Court was delivered by

SINGH, J. This petition under Article 32 of the Constitution of India, by Mrs. P. Devaki wife of the detenu R. Thamaraikani, challenges the validity of her husband's detention under the order_ of D the Collector and District Magistrate of Kamarajar District Virudhunagar, Tamil Nadu dated 15.8.1989 issued under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drugoffenders, Forest-offenders, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) (as amended by Act 52 of 1986 and Act 1of1988) (hereinafter referred to as 'the Act').

E After hearing arguments of the learned counsel for the parties at length, we allowed the petition on 10.11.1989 and issued directions for .the release of the detenu forthwith. We are now giving the reasons for our Order dated 10.11.1989.

F The detenu R. Thamaraikani is a member of the All India Anna Dravida Munnetra Kazhagam Party, briefly described as AID MK. He has been an active social and political worker. He was elected Member of the Tamil Nadu Legislative Assembly from Srivilliputhur Constituency in the General Elections held in 1977, 1980 and 1984. In the General Elections held in January 1989 to the Tamil Nadu Legislative G Assembly, he was defeated by the Dravida Munnetra Kazhagam Party

candidate. He continues to be Joint Secretary of the AIDMK Party for Kamrajar District in Tamil Nadu and he has been taking active part in social and political activities in the District of Kamrajar. The petitioner has stated that there has been personal and political animosity between the detenu and Thim Durai Murugan, Minister for Public H Works and Highways in the present DMK Government. The District

MRS. T. DEVAKl v. GOVT. OF TAMIL NADU [SINGH, J.] 839

Magistrate issued the impugned order for the detention of her husband at the behest of Thim Durai Murugan, the aforesaid Minister, respondent No. 3. The petitioner has referred to a number of incidents and to the proceedings of the Tamil Nadu Legislative Asseinbly in support of her submission that there was political and personal animosity between the aforesaid Minister and her husband and the order of detention was made ma/a fide at the instance of the Minister, respondent No.3.

The facts leading to the making of the impugned detention order are necessary to be noted. On 29. 7. 1989 a Seminar on Irrigation was held at Virudhunagar at the Dry Chilly Merchants' Association Kalai Arangarn, Aruppukkotai Road, which was attended by Thim Durai Murugan and by Pon. Muthurarnulingarn, Minister of Labour and District Magistrate, Karnarajar and other important personalities. A number of political and social workers and agriculturists attended the Seminar. According to the petitioner the detenu was invited to attend the Seminar although it is denied by the respondents but there is no dispute that the detenu was present in the hall where the Seminar was held. The petitioner has asserted that the detenu wanted opportunity to address the gathering for placing the grievances of the local people before the gathering but he was not permitted to do so. He insisted for placing the grievances of his Party before the audience whereupon he was forcibly removed away by the Police and later a false criminal case was registered against him under Sections 147, 148, 307 read with Section 149 of the Indian Penal Code and Section 27 of the Indian Arms Act at the Virudhunagar East Police Station. These allegations have been denied by the respondents. According to the respondents the detenu was not invited, even then he entered the hall where seminar was being held alongwith a number of persons and created dis, orderly scene in the hall which disturbed the Seminar. He threw a knife towards the Minister respondent No. 3, with an intention to kill him but he missed the target, later on, he was over powered by the Police. The violent activities of the detenu and his men caused panick in the hall, the audience raised alarm and ran outside the auditorium and outside the hall also people got scared, they ran helter skelter, causing obstruction to traffic. The proceedings of the Seminar came to an abrupt halt for a while. The detenu was taken into custody and he was enlarged on bail by the Sessions Judge on 3.8.1989. Thereafter the District Magistrate and Collector Kamarajar, respondent No. 2, issued the impugned detention order after 17 days of the aforesaid incident under Section 3(1) of the Act, as he was satisfied that it was necessary to detain the detenu under the Act with a view to prevent him from

acting in any manner prejudicial to the maintenance of public order.

Pursuant to the aforesaid order of the District Magistrate the detenu was kept in detention.

Mr. R.K. Garg learned counsel for the petitioner assailed the validity of the detention order on two grounds. Firstly, he urged that the order of detention was illegal since it did not specify the period of detention. Secondly, the sole ground of detention has no relevance to the maintenance of 'public order' as the facts set out in the grounds do not make out any cas~ of violation of public order, at best, it may be a case of law and order only.

This petition was heard by a Division Bench consisting of two learned Judges of this Court. After hearing counsel for the parties at length the leaned Judges referred the matter to a three Judges' Bench, in view of the conflict of decisions of this Court in Commissioner of Police & Anr. v. Gurbux Anandram Biryani, [1988] Supp. SCC 568 and Ashok Kumarv. Delhi Administration and Ors., [1982] 2 SCC 403 on the question of validity of detention order on its failure to specify period of detention. That is how the petition was heard by this Bench.

The first contention is founded on the provisions of Section 3 of the Act which read as under:

"3. Power to make orders detaining certain persons-

( 1) The State Government may, if satisfied with respect to any bootlegger or drug-offender (or forest offender) or goonda or immoral traffic offender or slum grabber that with a view to prevent him from acting in any manner.prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.

(2) If, having regard to the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section ( 1), exercise the powers conferred by the said sub-section:

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Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall ramain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."

Placing reliance on Section 3(2) Mr. Garg urged that since the impugned detention order did riot specify the period for which the detenu was required to be detained, the order was rendered illegal. On an analysis of Section 3 of the Act as quoted above, we find no merit in the submission. Section 3(1) confers power on the State Government to detain a bootlegger or drug-offender, or forest-offender or goonda or an offender in immoral traffic or a slum grabber with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Section 3(2) empowers the State Government to delegate its power as conferred on it under sub-section (1) to District Magistrate or a Commissioner of Police, if it is satisfied that the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of the District Magistrate or the Commissioner of Police, make it necessary to delegate the power to them.

It further provides that the order of delegation shall be in writing and it shall also specify the period during which the District Magistrate or the Commissioner of Police, are authorised to exercise the powers of the State Government under sub-section (1) of Section 3. Proviso to sub-section (2) lays down that the delegation should not be for an unlimited period, instead it should not be for a period of more than three months. If the State Government is satisfied that it is necessary to extend the period of delegation it may amend its order, extending such period from time to time but at no time the extension shall be for a period of more than three months. Once the State Government's power under Section 3(1) is delegated to the District Magistrate or the

Commissioner of Police, they are authorised to exercise that power on A the grounds, specified in Section 3( 1) of the Act. Neither sub-section ( 1) nor sub-section (2) of Section 3 of the Act require the detai.1ing authority to specify the period of detention for which a detenu is t J be kept under detention.

Section 3(3) requires that where detention is made by the c elegate of the State Government, namely, the District Magistrate or the Commissioner of Police, they should report the fact to the State Government together with the grounds on which the order may have been made and such other particulars as, in their opinion, may have a bearing on the matter. A detention order made by a District Magistrate or Commissioner of Police in exercise of their delegated authority does not remain in force for more than twelve days after the making thereof, unless in the meantime the detention order is approved by the State Government. Section 8 requires the detai:ling authority to communicate to the detenu, grounds on which, the order is made within five days from the date of detention to enable the D detenu to make representation against the order to the State Government. Section 10 requires the State Government to place before the Advisory Board the detention order and the grounds on which '; uch order may have been made alongwith the representation made by the detenu as well as the report of the officers made under Section 3(:>) of the Act within three weeks from the date of detention. Under Section E 11 the Advisory Board is required to consider the materials placed before it and after hearing the detenu, to submit its report to the State Government within seven weeks from the date of detention of the person concerned. In a case where the Advisory Board forms opinion, that there was no sufficient cause for the detention the State Gonrnment shall revoke the detention order but if in its opinion sufficient F cause was made out, the State Government may confirm the detention order and continue the detention of the person concerned for 'uch period not exceeding the maximum period as specified in Section l3 of the Act. Section 13 provides the maximum period for which a person can be detained in pursuance of any detention order made and confirmed under the Act. According to this provision the maximum G period of detention shall be twelve months from the date of detention.

The State Government has, however, power to revoke detention o::der at any time, it may think proper.

Provisions of the aforesaid Sections are inbuilt safeguards against the delays that may be caused in considering the representa- H tion. If the time frame, as prescribed in the aforesaid provisions is not

adhered, the detention order is liable to be struck down and the detenu is entitled to freedom. Once the order of detention is confirmed by the State Government, maximum period for which a detenu shall be detained can not exceed 12 months from the date of detention. The Act nowhere requires the detaining authority to specify the period for which the detenu is required to be detained. The expression "the State Government are satisfied that it is necessary so to do, they may, by order in writing direct that during such period as may be specifieri in the order" occurring in sub-section (2) of Section 3 relates to the period for which the order of delegation issued by the State Government is to remain in force and it has no relevance to the period of detention. The Legislature has taken care to entrust the power of detention to the State Government, as the detention without trial is a serious encroachment on the fundamental right of a citizen, it has taken further care to avoid a blanket delegation of power, to subordinate authorities for an indefinite period by providing that the delegation in the initial instance will not exceed for a period of three months and it shall be specified in the order of delegation. But if the State Government on consideration of the situation finds it necessary, it may again delegate the power of detention to the aforesaid authorities from time to time but at no time the delegation shall be for a period of more than three months. The period as mentioned in Section 3(2) of tbe Act refers to the period of delegation and it has no relevance at all to the period for which a person may be detained. Since the Act does not require the detaining authority to specify the period for which a detenu is required to be detained, order of detention is not rendered invalid or illegal in the absence of such specification.

Mr. R.K. Garg placed strong reliance on the decision of this Court in Gurbax Biryani's case (supra) to support his submission. In that case the detenu had been detained under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act 55 of 1981. The High Court quashed the detention order on the ground that the detenu had been released in criminal prosecution under Section S(c) read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he had been released on bail, but that fact had not been placed before the detaining authority, On appeal by special leave a Division Bench of this Court consisting of two Judges, dismissed the appeal without going into the merits of the case on the sole ground that the detention order was bad as the period of detention was not specified in the detention order.

The Court observed as under:

"The order is bad ()n another ground, namely, the period of detention has not been indicated by the detaining authority. The scheme of this Act differs from the provisions contained in similar Acts by not prescribing a period of detention but as Section 3 of the Act indicates, there is an initial period of detention which can extend upto three months and that can be extended for periods of three months at a time. It was open to the detain.ing authority to detain the detenu even for a period of lesser duration than three months.That necessitated the period of detention to be specified and unless that was indicated in the order, the order would also be vitiated. In scores of decisions this Court has been emphasising the necessity of strict compliance with the requirements of the preventive detention law; yet authorities on whom the power is conferred have not been complying with the requirements and even if there be merit to support the order of detention, the procedural defects lead to quashing thereof as a result of which the purpose of the Act if frustrated and the suffering in the community does not abate."

With great respect we do not agree with the view expressed by the learned Judges.

E Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act, 1981 is identical in terms to Section 3 of the Tamil Nadu Act. Section 3 of Maharashtra Act does not require the State Government, District Magistrate or a Commissioner of Police to specify period of detention in the order made by them for detaining any person with a view to preventing the F detenu from acting in any manner prejudicial to the maintenance of public order. Section 3(1) which confers power on the State Government to make order directing detention of a person, does not require the State Government to specify the period of detention. Similarly, sub-sections (2) or (3) of Section 3 do not require the District Magistrate or the Commissioner of Police to specify period of detention G while exercising their powers under sub-section(!) of Section 3. The observations made in Gurbux Biryani's case that the scheme of the Maharashtra Act was different from the provisions contained in other similar Acts and that Section 3 of the Act contemplated initial period of detention for three months at a time are not correct. The scheme as contained in other Acts providing for the detention of a person with- H out trial, is similar. In this connection we have scrutinised, the Pre-

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ventive Detention Act, 1950, the Maintenance of Internal Security Act, COFEPOSA Act, National Security Act but in none of these Acts the detaining authority is required to specify the period of detention while making the order of detention against a person.

This Court has consistently taken the view that an order of detention is not rendered illegal merely because it does not specify the period of detention. A Constitution Bench of this Court in Ujagar Singh v. The State of Punjab, [1952] 3 SCR 756 while considering validity of detention order made under Section 3 of the Preventive Detention Act 1950 held that non-specification of any definite period in a detention order made under Section 3 of the Act was not a material omission rendering the order invalid. In Suna Ullah Butt v. State of Jammu & Kashmir, [1973] 1SCR870 validity of detention order made under Jammu and Kashmir Preventive Detention Act 1964 was under challenge on the ground that the State Government while confirming the detention order under Section 12 of the Act had failed to specify

the period of detention. The Court held that since the State Government had power to revoke or modify the detention order at any time D before the completion of the maximum period prescribed under the Act, it was not necessary for the State Government to specify. the period of detention. In Suresh Bhojraj Chelani v. State of Maharashtra, [ 1983 I 1 sec 382 while considering the validity of the detention order made under Section 3( 1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 this Court rejected simi- E Jar submission made on behalf of the defenu that order of detention was vitiated as the Government had failed to mention the period of detention while confirming the order of detention. The Court held that the COFEPOSA Act did not require the detaining authority to mention the period of detention in the order of detention. When no period is mentioned in an order, the implication is that the detention is for the .F maximum period prescribed under the Act.

In A.K. Roy v. Union of India & Ors., [1982] 1 SCC 271 a Constitution Bench of this Court considered the validity of the National Security Act (65 of 1980), Chandrachud, CJ (as he. then was) speaking for the Bench rejected the arguments made on behalf of the G petitioner that the absence of provision requiring the detaining authority to provide for maximum period of detention was illegal. The learned CJ, observed:

"There is no substance in this grievance because, any law . of preventive detention has to provide for the maximum H

period of detention, just as any punitive law like the Penal Code has to provide for the maximum sentence which can '-{ be imposed for any offence. We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the nature and seriousness of the grounds of detention. The fact that a person can be detained for the maximum period of 12 months does not place upon the detaining authority the obligation to direct that he shall be detained for the maximum period. The detaining authority can always exercise its discretion regarding the length of the period of detention. It must also be mentioned that, under the proviso to Section 13, the c appropriate Government has the power to revoke or modify the order of detention at any earlier point of time."

On the basis of the above observations validity of a detention order passed under Section 3 of the National Security -Act was challenged before this Court in Ashok Kumar v. Delhi Administration & Ors., D ( 1982] 2 SCC 403 on the ground that the Commissioner of Police, as well as the Administrator of Delhi Administration who confirmed the detention order failed to specify the period of detention while making the order of detention. A three Judge's Bench of this Court rejected the detention and upheld the validity of the detention order. A.P. Sen, J. observed: E

"It is plain from a reading of Section 3 of the Act that there is no obvious fallacy underlying the submission that the detaining authority had the duty to specify the period of detention. It will be noticed that sub-section ( 1) of Section 3 stops with the words "make an order directing that such person be detained", and does not go further and prescribe that the detaining authority shall also specify the period of detention. Otherwise, there should have been the following words added at the end of this sub-section "and shall specify the period of such detention". What is true of subsection (1) of Section 3 is also true of sub-section (2) thereof. It is not permissible for the courts, by a process of judicial construction, to alter or vary the terms of a Section. Under the scheme of the Act, the period of detention must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activity complained of. It is not that the period of detention must in all circumstances extended to the maximum period of 12

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months as laid down in Section 13 of the Act."

It is thus clear that the view taken in Gurbux Biryani's case on the interpretation of Section 3 of the Maharashtra Act is incorrect.

This Court has while considering the question of the validity of the detention order made under different Acts, consistently taken the view that it is not necessary for the detaining authority or the State Government to specify the period of detention in the order. In the absence of any period being specified in the order the detenu is required to be under detention for the maximum period prescribed under the Act, but it is always open to the State Government to modify or revoke. the order even before the completion of the maximum period of detention. We are, therefore, of the opinion that the impugned order of detention is not rendered illegal on account of the detaining authority's failure to specify period o, f detention in the order.

Mr. R.K. Garg then urged that the sole ground on which the detention order is founded does not. relate to maintenance of public order, and it exhibits non-application of mind by the detaining authority. While considering this submission it is necessary to reproduce the detention order as well as the grounds in support thereof. The detention order is as under:

"DETENTION ORDER

WHEREAS, I, Thim T.S. Sridhar, IAS, Collector

. and District Magistrate, Kamara jar District, Virudhunagar, am satisfied with respect to the person known as Thim 'fhamaraikani son of Ramaswamy Nader, residing at Singammalpuram Street, Srivilliputhur Town and Taluk that with a vi1'w to preventing him from acting in any manner F prejudicial to the maintenance of public order, it is necessarv .to make the following order. . . .

2. Now therefore in exercise of the powers conferred by sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offen-· G ders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act 1982 (Tamil Nadu Act 14/82) read with orders issued by the Government in G.O. Ms.

No. 230, Prohibition and Excise Department, dated 23.3.1985 and subsequently amended in G.O. Ms. No. 815, Home Prohibition and Excise Department dated 13.7.1989 H

under sub-section (2) of Section 3 of the said Act, I hereby '--i direct that the said Thiru R. Thamaraikani son of Ramasamy Nader be detained and kept in Central Prison, Madurai.

Sd/- Collector and District Magistrate, Kamara jar, District Virudhunagar."

The ground of detention supplied to the detenu stated that the detenu was a habitual criminal, a goonda and his activity had come to adverse notice in some cases reference to which was made by referring to some FIRs lodged against the detenu at the Police Station. But the incidents referred in those FIRs have not been made ground for detention instead facts stated in paragraphs 3, 4, 5 and 6 of the grounds constitute material on which the District Magistrate formed the requisite opinion under Section 3( 1) of the Act in making the order of detention._ These are as under:

"(3) The ground on which the said detention order has been made as follows:

•- On 29.7 .1989, the Kamara jar District Irrigation Seminar was held at "Dry Chilly Merchants' Association Kalai Arangam" at Arupoukottai Road, Viruthunagar Town. Hon'ble Minister for P.W.D. Thiru Durai Murugan and Hon'ble Minister for Labour Thim Pon. Muthumalaingam attended the Seminar which was presided over by the District Collector. At about 12.30 p.m. while the proceedings of the Seminar were on, suddenly there was a commotion in front of the dias. Thiru Murali, Sub-Inspector of Police, Vembakottai alongwith posse of men who were on bandobust duty there, rushed up Thiru R.

Thamaraikani inducing his henchmen saying "Finish Durai Murgan's chapter today". The same time he (Thamaraikani) also threw a dagger aimed at Hon'ble Minister ThirL Durai Murugan shouting "Finish Durai Murgans Chapter today". But the dagger missed the target and fell down on the stage. At once Thiru R. Thamaraikani took out a bottle containing petrol and a match box out of a hand bag which he carried in his hand. Instantly Thiru Murali, Sub-Inspector of Police, Vembakottai and the P.C. 168 Murugesan

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pounched and caught hold of Thim R. Thamaraikani. The former seized the bottle and the match box. At the instigation of Thim R. Thamaraikani, his henchmen viz. Thim Valargal Kenna, son of Thangaraj Nader of Kammapatti, Nareeswaran, son of Smaraj Nadar of Kammapatti, Kalipandian, son of Krishna son thevar of Mall and Nagarajan,

on of Paramasive Thevar of Mangeseri who accompanied B him also_ attempted to attack the Hon'ble Minister for P.W.D., with knives in their hands. H.C. 829 Thim Subbiahni P.C. 231 Thim Subbiah and P.C. 469 Thim Manraj duly assisted by some agriculturists surrounded and overpowered them and seized their knives, Seeing the violent activities of Thim R. Thaniaraikani and his men, the c gathering in the hall panicked. They raised an alarm and ran outside the auditorium and the crowd outside also got scared and ran helter skelter, causing obstruction to traffic along Aruppukottai Road. The proceedings of the Seminar also came to an abrupt halt for a while. The Sub-Inspector of Police arrested Thiru R. Thamaraikani and his four associates at about 1300 hrs. and brought them out with the help of the Deputy Superintendent of Police, Virudhunagar and other Police Officials who were then on duty there.

On seeing this about 10 other henchmen of Thiru R .

. Thamaraikani who were waiting outside the auditorium escaped, leaving behin.ed an Ambassador Car IDR 667-and E a van TCM 7797. On searching the car, the Sub-Inspector of Police found legal weapons viz. 1 sword, 4 koduvals and also 4 torch sticks, the cloths of which were doused in kerosene. The said two vehicles along with the lethal weapons, hand bag containing bottle with petrol. Rs. 1000 match box, papers etc., were seized under an attachi at F 1330 hrs. Then •the Sub-Inspector of Police, handed over the accused persons and the properties seized under a special report at Virudhunagar East Police station. A case was registered in Cr. No. 180/89 u/ss 147, 148, 307 read with 149 I.P.C. and 27 Indian Arms Act at the Virudhunagar East Police Station. The Inspector of Police, Law and G order, Virudhunagar Rural Circle took up the investigation. On Production before the Judicial Magistrate Court No. 1, Thiru R. Thamaraikani was remande.d to judicial custody in Central Prison, Madurai on 30.7.89 and released on bail with condition to stay at Madurai on 3.8.89. The case properties were deposited in the Court. The case is H still under investigation.

( 4) The offence u/s 307 IPC is punishable under Chapter XVI of the IPC. By committing the above described grave offence in public, in broad day light, Thiru R. Thamaraikani has 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. His unlawful, disorderly and dangerous activities on 29.7.89 are prejudicial to the maintenance of public order and have affected the even tempo of life of the community.

(5) I am aware that Thiru R. Thamaraikani is now on bail with condition to stay at Madurai since 3.8.89. I am satisfied that his unlawful activities warrant his detention under the Tamil Nadu Act No. 14 of 1982.

(6) I am s.atisfied that on the materials mentioned above, if Thiru R. Thamaraikani is left to remain at large, he will indulge in'further activities prejudicial to the maintenance D of public order and further recourse to normal law would not have the desired effect of effectively preventing him from indulging in activities prejudicial to the maintenance of public order and therefore I consider that it is necessary to detain him in custody with a view to preventing him from acting in any manner prejudicial to the maintenance of E public order."

In substance the ground of detention states that while a Seminar was going on the detenu incited his men saying "Finish Durai Murgan's Chapter today" and after saying that he threw a dagger aiming at Thiru Durai Murgan, Minister but the dagger missed the p target and fell down on the stage. Thereafter, the detenu took out a bottle containing petrol and a matchbox out of a hand bag which he carried in his hand. Meanwhile, the Sub-Inspector of Police, caught hold of the detenu. seized the bottle and the matchbox. It is further stated that the detenu and those who accompanied him attempted to attack the Minister with knives in their hands but they were over- G powered by the Police and the members of police. As a result of the incident those present in the hall panicked and got scared and ran helter skelter, causing obstruction to traffic on Aruppukottai Road.

The Seminar also came to an abrupt bald for a while. paragraph 4 of the detention order further states that the detenu by committing the aforesaid grave offence in public, in broad day light created a sense of H alarm, scare and a feeling of insecurity in the minds of the public of the

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area and thereby he acted in a manner prejudicial to the maintenance of the public order. His unlawful, disorderly and dangerous activities on 27. 7 .89 were prejudicial to the maintenance of public order which affected the even tempo of life of the community. On the aforesaid facts, the District Magistrate was satisfied that if the detenu was left to remain at large he would indulge in further activities prejudicial to maintenance of public order and recourse to normal law would not have the desired effect of preventing him from indulging in activities prejudicial to the maintenance of public order.

The question which falls for consideration is whether single incident of murderous assault by the detenu and his associates on the Minister at the Seminar held at Dry Chilly Merchants' Association Kalai Arangam Hall was prejudicial to the maintenance of public order. 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 problem but the same need not affect maintenance of public order. There is basic difference between 'law and order' and 'public order', this aspect has been considered by this Court in a number of decisions, see: Dr.

Ram Manohar Lohia v. State of Bihar, [1966] 1 SCR 709; Pushkar Mukherjee & Ors. v. The State of West Bengal, [1969] 2 SCR 635 and Shymal Chakraborty v. Commissioner of Police Calcutta & Anr., [ 1970] 1 SCR 762. In these cases it was emphasised that an act disturbing public order is directed against individuals which does not disturb the society to the extent of causing a general disturbance of public peace and tranquillity. ltis the degree of disturbance and its effect upon the life of the community in the locality which determines the nature and character of breach of public order. InArun Ghosh v. State of West Bengal, [1970] 3 SCR 288 the Court held that the question ·whether a man has only committed a breach of law and order, or has acted in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society. This view was reiterated in Nagendra Nath Monda! v. State of West Bengal, [1972] 1 SCC 498; Sudhir Kumar Saha v. Commissioner of Police, Calcutta, [1970] 3 SCR 360; S.K. Kedar v. State of West Bengal, [1972] 3 SCC 816; Kanu Biswas v. State of West Bengal, [1972] 3 SCC 831; Kishori Mohan v. State of West Bengal, [1972] 3 SCC 845 and Amiya Kumar Karmakar v. State of West Bengal, [1972] 2 SCC 672.

In the instant case the detenu was placed under detention on the

sole incident which took place on 29.7.89 and in respect of which the H

detenu is facing criminal trial before a court of law. The alleged A attempted murderous assault made by the detenu and his associates on Thiru Durai Murugan, Minister for Public Works Department may have been made on account of political rivalry. In fact, in his affidavit Thiru Durai Murugan has admitted that in the past the detenu had misbehaved with him even on the floor of the Legislative Assembly of B Tamil Nadu while participating in discussion. The attempted assault took place in the hall of Dry Chily Merchants' Association Kalai Arangam where two Ministers, a number of officials including the District Magistrate, as well as members of the public were present. It is alleged that the attempted murderous assault on Thiru Durai Murugan created scare and a feeling of insecurity in the minds of the persons present in the hall and the detenu 's action interrupted the "proceed- C in gs of the Seminar for a while" (emphasis supplied). This shows that the detenu's activity disturbed the proceedings of the Seminar for a while but the Seminar appears to have continued later on. The incident did not and could not affect public peace and tranquillity nor it had potential to create a sense of alarm and insecurity in the locality. How 0 could a single murderous assault on the Minister concerned at the

Seminar could prejudicially affect the even tempo of the life of the community? No doubt in paragraph 4 of the grounds the detaining authority has stated that by committing this grave offence in public, in broad day light, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and there by E acted in a manner pre judicial to the maintenance of public order which affected even tempo of life of the community. Repitition of these words in the ground are not sufficient to inject the requisite degree of quality and potentiality in the incident in question. A solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy somuch as to bring the case within the F purview of the Act. Such a solitary incident can only raise a law and order problem and no more. Moreover, there is no material on record to show that the reach and potentiality of the aforesaid incident was so great as to disturb the normal life of the community in the locality or it disturbed general peace and tranquillity. In the absence of such material it is not possible to hold that the incident at the seminar was G prejudicial to the maintenance of public order. In Manu Bhusan Roy Pradhan v. State of West Bengal & Ors., [1973] 3 SCC 663 this Court held that a solitary assault on one individual, which may well be equated with an ordinary murder which is not an uncommon occurrence, can hardly be said to disturb public peace and its impact on the society as a whole cannot be considered to be so extensive, widespread H and forceful as to disturb the normal life of the community, thereby

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shaking the balanced tempo of the orderly life of the general public.

The Court held that the detention order which had been made for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order, was not sustainable in law. On a careful consideration of the matter in all its aspects and having regard to the circumstances in which the alleged incident took place on 29. 7 .89, we are of the opinion that the solitary incident as alleged in the ground 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.

The detaining authority, namely, the District Magistrate of Kamarajar District who was admittedly present at the Seminar, has filed his own affidavit stating that he was sitting on the dias alongwith the Minister for Public Works Department. Thus the incident which is the basis for detention of the detenu took place in the presence of the detaining authority. In his affidavit the District Magistrate has, however, stated that he made the detention order against the detenu on perusal of the materials, facts and documents placed before him by the police as he was satisfied that detenu 's detention was necessary for the purpose of maintenance of public order. He has denied the allegation that the detention order was passed by him under the influence of the Minister. Since the District Magistrate was present on the dias alongwith the Minister and the alleged murderous assault is alleged to have been made by the detenu in the presence of the detaining authority, one would expect him to have witnessed the occurrence himself. But it is interesting to note that in paragraph 23 of his affidavit, the District Magistrate has stated that though he was present on the dias but did not witness the incident as he was concentrating on the proceedings of the Seminar and preparing replies to the querries raised by Speakers at the Seminar. It is difficult to believe the District Magistrate that he could not see the occurrence although he was seated on the dias alongwith the Minister, on whom murderous assault was allegedly made by the detenu. He is not ready to corroborate the occurrence as presented to him by the sponsoring authority, namely, the Police. If the detaining authority was himself present and was an eye-witness to the occurrence on the basis of which detention order was made, it was imperative for the detaining authority to have honestly and bona fide formed the requisite opinion in making the order of detention on the basis of his own knowledge and perception instead of relying more on the version of the incident as placed before him by the sponsoring authOrity. In a case where the detaining authority may not be present at the

A place of the incident or the occurrence, he has to form the requisite opinion on the basis of materials placed before him by the sponsoring authority but where the detaining authority was himself present at the scene of occurrence he should have relied more on his own observation and knowledge than on the report of the sponsoring authority. In the B instant case the detaining authority though present at the scene of occurrence does not support the incident as presented to him by the sponsoring authority. In the circumstances, we are of the opinion that there was non-application of mind by the detaining authority in making the impugned order of detention.

In view of the above discussion the detention order is rendered C illegal and it is accordingly quashed.

R.N.J.

Petition allowed.