STATE OF TAMIL NADU AND ANR. v.

KETHIY AN PERUMAL

OCTOBER' 11, 2004

[ARIJIT PASAYAT AND C.K. THAKKER, JJ.]

Tamil Nadu Prevention of Dangerous Activities of Boot leggars, Drug C Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982:

Sections 3(1) and SA-Detention Order-Set aside by High Court as the Forest Officer's Report did not mention that the activities of detenue dangerous to public order whereas in an identical matter on basis of the said report detention upheld-Legality of-Held: High Court failed to take note of the D fact that factual distinction sought to be brought about by detenu not supportable and also the effect of the confessional statement and the background facts-Further, the Forest Officer's Report clearly mentions that the activities of detenu prejudicially affected public order- Also in view of section 5A an extraneous and irrelevant ground does not affect validity of detention order- Hence, order of High Court set aside.

E Section 3(1)-Preventive Detention-To undergo remaining period of detention in view of passage of time-Held: In all cases passage of time cannot be a ground for not sending the detenu to serve remaining period of detention-State has to consider effect of the objectionable acts, its continuity F and existence of a proximate temporal nexus between the period of detention indicated in the order by which detenu was required to be detained and the date when deten:t is required to be detained pursuant to the Appellate Order.

K was detained under section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Boot leggars, Drug Offenders, Goondas, Immoral G Traffic Offenders and Slum Grabber~ Act, 1982. Respondent-detenu's wife challenged the detention order on the ground that the Forest Officer's Report did not anywhere indicate that the activities of the detenu has been highly dangerous to public order. State contended that in Mrs. U.

Vijaylakshmi 's case, same Forest Officer's Report was referred and detention order was upheld in view of section SA of the Act that an H Jn

STATE OF TAMIL NADU v. KETHIY AN PERUMAL 323

extraneous and irrelevant ground does not affect validity of the detention A order. High Court distinguished Mrs U. Vijaylakshmi 's case though it was with reference to the same report of the Forest Officer since the points which were presently urged were not taken before High Court in the earlier case. It allowed the petition on the ground that the Detaining Authority took into consideration extraneous matters while recording the B finding about unlawful activities of the detenu. . .. ' ' ! 1 r ,. •

Appellant-State and Detaining Authority contended. that the; High Court accepted the prayer of the detenu on the ground that.theiForest: Officer's report did not specifically refer to the alleged unlawful activities aspect; or that the impugned acts were highly dangero'lls to public' ~'rd er; C that there was a confession of respondent No. 1 showing clear-admissidi{ about the unlawful activities; and that the High Court did not keep in view

• • - I i

I-· j • ' ; ' , ' : I rt j' ·~ 'r l 1 , ., l the effect of Section 5A of the Act. · , ,. .:· , _ . ,

Allowing the appeals, the Co.urt; . .'

HELD 1. In both Mrs. U. Vijayalakshmi's* case and the instant case the Forest Officer's report was common. High Co~t did n'ot tke 'ate of the fact that the factual distinction sought 1 to be brought about -by the

".J'i, I• l -_JQ.1'-. r l '·: · ,; - ... ; • ..... • ,-, .• f"-'• .. • 1.,_ J4 I• detenu is not supportable. Effect of the confessional statement .and the

,1 I; J,.j { background facts have not been taken note of. The factual mistake,

committed by High Court by; observing that.there, was:no m.ention in the E' Forest Officer's Report regarding activities being highly dangerous to public order, is not 'sustainabte:ln' fact,-it'clearly' mentions that activities of-the detenu' prejuCliCially affected; public''or'der.· Thedestruction of ecoltigical system would be highly<Jangerous'to public cifder~ Furthermore~· in any event the effect of Section'5A'of the Act carinofbe lost sight Of. In F U. Vijayalakshmi's case this court categorically held that in view of Section 5A'6rthe Act rietraneo.lls and frrt~Vant ground does not affect validity

• .

I~ ,: :~~ t ,-'I "fj'" ·. t •.

J .t c . . • • • ofthe'detention or<Ier. High Court erre'd in holcling that decision iii 'Mrs. ·

v. 'vuaYatakshki's ase -was' 1clis\inguishab1e: Oec'is, iOn'in

1Mr;, ''U.

~ .• ~,-' I .rr. f-1 ;.J".l' ..,, '" _,, 1 r l .- t • • : . · " . ,_ Vijayalakshmi's case clearly'applieho the facts of the case: Hence, order.· of High Court is set aside. [325-G; 326-D-E)

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- G ·

[ : t {l ; • •' • p • l I J < t (" • ,, ' • •

0 0 :

~ Mrs. U. VijayalakShmi v. State'ofTamil Nadu and Anr,, AIR (1994) SC 16( relied o'n/i_, r .. ' ', t.J ' - -. - ,. '

~ i(T .•'"..:'~ . jl~~- t . .; r; _ 1 ~,.f ' (~ r,

 - 2; Pifssagerof'.tinie in all cases cannot be a ground not io send the detenu to serve remainder of the period of detention. It all depends on H

A the facts of the act and the continuance or otherwise of the effect of the objectionable acts. State shall consider whether there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the appellate order.

B Appellant-State would pass necessary order in this regard within two months. (328-B-C]

Sunil Fu/Chand Shah v. Union of India and Ors., (2000) 3 SCC 409 referred to.

C CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 701 of 1999.

From the Judgment and Order dated 9.10.98 of the Madras High Court in H.C.P. No. 641 of 1998. '

WITH

Crl. A. No. 702 of 1999.

Abhay Kumar, Gopal Krishan and Subramonium Prasad for the Appellants.

E The Judgment of the Court was delivered

ARIJIT PASA Y AT, J. These two appeals involve identical issues.

The impugned judgment in Criminal Appeal No. 702 of 1999 has its foundation on the judgment impugned in Criminal Appeal No. 701 of 1999. Therefore, F the factual position involved in Criminal Appeal No. 701of1999 is described.

The State of Tamil Nadu and District Magistrate & Collector, Vellore District (hereinafter referred to as the 'detaining authority') call in question legality of the judgment rendered by a Division Bench of the Madras High Court quashing the order of detention dated 29.3.1988 passed by the Detaining G Authority.

A Habeas Corpus Petition was filed by the wife of Kethiyan Perumal (hereinafter described as "the detenu") who was detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Boot leggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, H 1982 (in short the 'Act'). The High Court allowed the Habeas Corpus Petition

' STATEOFTAMILNADUv. KETHIYANPERUMAL[PASAYAT, J.) 325

primarily on the ground that the Detaining Authority took into consideration A extraneous matters while recording the finding about unlawful activities of the detenu or that it was highly dangerous to the public order. The High Court distinguished the decision of this Court in Mrs. U. Vijayalakshmi v.

State of Tamil Nadu and Anr., AIR (1994) SC I6S which was relied upon by the detaining authority. Primary stand of the writ petitioner (present respondent) B before the High Court was that though reference was made to Forest Officer's report and the same virtually provided the foundation of the detention, yet there was no mention therein that activities of the detenu has been highly dangerous to public order. The State resisted the petition on the stand that in an identical matter reference was made to the said Forest Officer's report.

This Court in Mrs. U. Vijayalakshmi 's case (Supra) dealt with the matter in C detail and upheld the detention. Reliance was placed on Section SA of the Act to contend that the grounds are separable and even if one ground indicated in the order of detention fails, on the residual grounds also a detention can be maintained.

The High Court found that though the de.cision in Mrs. U D Vijayalakshmi 's case (supra) was with reference to the same report of the Forest Officer, yet points which were presently urged were not taken before the High Court in the earlier case.

Stand of the appellants is that the High Court accepted the prayer of the detenu on the ground that the Forest Officer's report did not specifically refer E to the alleged unlawful activities aspect or that the impugned acts were highly dangerous to public order. It is submitted that the conclusion is factually incorrect. It was pointed out that there was a confession of respondent No.

I where there was clear admission about the unlawful activities. In any event the effect of Section SA of the Act has not been kept in view by the High p Court.

There is no appearance on behalf of the respondent in spite of service of notice.

The High Court did not take note of the fact that the factual distinction G sought to be brought about by the detenu is not supportable. In both Mrs. U.

Vijayalakshmi 's case (supra) and the present case the Forest Officer's report was common. Effect of the confessional statement and the background facts have not been taken note of.

Before we go to the legal aspects involved it would be necessary to sort H

' 32~ i • . ; •'-'. 'r•.,','"c'!• _!,. ~, f,!lpl\1);': ~OUiq' R;(i::ftQRrn,[~P.04]iSUeP: :S S.C.R.

A R%£Pfillf:ie~ B1~i; tf!!f!e~. ;~Yr~~~\ ig~;~~\l\1:.J~tfl'!IY.~~1as done with. the

Hd, t:J; Hf 14~!.e~.!i.<?H.; Ri~~i/Y, <;~ 1µ,}~ 1gr9.nrf'iil:hl!~ J3ore.st officer;' s. report did

Rh ~~Yi'Yhern)nd~.i1!~(}9!Wt.·; rh.~.1, yf~ton, rpublic .order ,, apet. , In Jact, rit

cfex!y,, w, e.Ht\W.1~ *fit 1.r-iyji~~1 r(,)f t~~ detenu P!ejuqjcially, affepted, pu_blic

~Sdr:rJ! li~_,~J?~<:; if!F~\ly1 tated_. as follcws:.; . d ._ 1 .h. / , ,. : 1 . .1 . .?

B i_)r!trnvF;;, ftr1rhurilri life; i~ 1 <ljj~~<le

1nt b'n '~t~~; ci~~~-i; ir "'i~<l' helthy u r1~· .. l~! ... J L•'//'.1"" i ,, t 1 ... h_, rn ,~Jd< ·;; r .... 1 !"• ... : ··~, .• , q;~; (.:f ~1. ,.., iJC(J .~!'~:~I '1d1 J;•H. agnculture for prov.1dmg food .. Destruction of sandalwood trees m

i;· / ·" • ve1i6te. 6istic1 ff1 eriO~~I), 'art'cr tHe:iaiiab'i1ity

11 0'r 1'h1sr ~5dJ~Hai ,/_11. r:"' ... Jrt l,_."' ;.··•_:; f i 1 .t.; ; s.: .. , , ., ~; .!: , i,~

(.I',:\~ ..... ;"lf'.f•iL; fH;. I• .. I/ .. •~)•:i ·· .. thirigsand cause thre'at to' public life at large <l4~ to destruction, of : .,, ii• N'at'Urrif'F~e'st':Eai-sytcl: :·" ;,•,,;( =•' .": L\••:. ,•; r, • r J' ll'; HJ 1 ,0 q J t l'". ji u > :, .... :.: ·.·~ -i t_): :~· ~!· -~·1 .t;··· _,_;:r.tl"".:~·-. .. ·., .... r ;1;. 1 ·, jiJ ... .1i Ob q ' ·, r;,~.:· , Hence Heel that we should stop:by a!Hriearis tlie' indiSctimirrate

"··; r , felling bf frees in1VellowDistricUn the, lhtere'st of public becausethe ".; . .; if..ecblogical.1system is affected' itr a :ma11ner, prejudiciaP-tO'thepuolic

B ·....;_

• ; I : - , • t l'' .~. i 1 • .> The factual mistake, committed by the High Court by observing that there , was no mention. regarding, activities being •highly(dangerous to 'public order; , is , notisustainable,' in view of.the details indicated and clear mention: Itwas :categorical Ly. stated; haMhe. destruction .of ecological :system 'would be' highly dangerous to public order. In any event.the:effect 6f Section :SA-of the: Act cannot be lost sight of The High Court was clearly in error in holding B tfit <iecisioif in: 1Md:'. U 1"-J!ijaydldkS'llnii ; s

1case' 1 ('siipa) w'as 11HistirigUishable. .. rlie-iaet.isiokinlMr.f. u_, Vijayalakshirli ; s 1cas'e 'csupra) 1 ciearlyappiies to' tile' rabis1iof->the''case; His' to.'tie n3teci'-thatlii1D: ViJytilaksh'mtc71se '(supra)· r!lis'

cduft:l<:atg'orically'neld that iii rview~ 6f :secti6n• SA 'dfthe'Ab 'ai{extraheoliJ

an'd; irre1~\7atit gtouhd'Ooesriot'affecrvalidiiy'oftile'obiention order as'Secticin 5.A:.:Was:fntro'clucea"preeiseif to-take 1 'clire"cff su~WarJituatidrl. 'This Couri; infer' F1 a/i£1, ilierl:l aslfollows: cA ",)\' :; q ~·< );/', '":; 't 1' 7 """-''': , .. , ,._ ~.i'

"The second contention is based on the facts stated in paragraph >; o:·:··u,:41bf:Jthe-- grourtds'of.aeterition: 'It E/nianifesf fronFthe facts1 stted in paragraph 4 of the grounds of detention that the emphasis is tWofdld:' (I) that to profit frorr. the high price fetched by sandal wood !n the

. Q-; nGiJi."iifgni 1IB1"rket', niliit1t 'reihn~'. M ~naiA.wdria tfJe;1'i5' 6nrlthe1 icease,

, i . '"~ th@feyibaa~(ing 1Widis~'re 1ad dalfge'r tbithe! e!(ol6gial systel~ acf 1'~~~' rioq-n br'tvJhtfi:q0G6fJril'rl16Jf -t'nac2) 1 t1iahli~ 1huge 'on-yrl1iilg Into'

d~• 11 Ytrn"PiaAd~<hff'i1it?a1s rriilZeil:werii's'uscpfiti1e 1<./drin-iri~ n<l gcilnbi'irlg,!/

thereby converting the poor and innocenttfibals into antisdclls. so" Iji hri~ 0/N,:i~i~·sLnrBtW~P, ct is concr~~?- w~ 1find from th~ grou11ds of

;) H STATE"OFTAMILNADUv.KETHIYANPERUMAL[PASAYAT. J.] s27

 ··".' , i"deteHtion thattlie &ienJ was iii.volve'd in two slmilkr casd; iri'ttie past 1A '"'•' ' arid the impugned order' of detention was pa~ed after he 'was found

- "'~"' ''io' have indtilgdi'in 'sYmifar activity or( fst 'rviay; 1992. Asis"clear

I , ,; from'' the ex1pfanat'i0n 'to'Sectio'n' 2(a)'extracted 'earlir,'\vid'espread

1 ' 1' l(:fanggito' the' 'ecological' system" must be deerried fo 'affect public ' . ' order adv'ersely witI1in the'm'eanirig of that expression in Section 2(a) ;13

' ''of the Act:Counsel submittd that'althotigtt'ii: is asserte'cl in paragraph "' '4\:lf the' grounds of detention that the 'illicit cutting and removal of

) , ... - .l sahdal'w'ooci tree§' from 'the reserved forest' area causes widespread

::J: ''''danger to ihe e; cologic~I system and disturbs the deficqte equilibrium '' :_,' 'thereof,'ih'ere is riothing'on' record1tci sliow thatthis assertionis'well

"'' ' 1 • t'oUnded. We'are' afraid\.Ve cannot accept this s'ubfuissio~ made:by ihe C

'. 1 'fl · -. .. .-• f • . ' • ' • t . - • ' nc - learned counsel for the detehu. Itis'manifest from paragraph 4 of the grounds of detention that this view was founded oinlfo 6pinio1f:of the District Forest Officer, Vellore. Once it is found that the ground of r L /. 1 r 1 • detention is one recognized by sub-section (I) of Section. j of the

tre ",.; 1 "Act, :i~ is, not for this Court to probe into the correctness of the alleged D facts since this Court has a limited role in the matter of examining the validity of the detention order.

Counsel for the detenu next contended that the second aspect of paragraph 4 shows that extraneous considerations weighed with the detaining authority in passing t!"le impugned detention order. He E submitted that it is too remote to think that tribals resort to drinking, gambling and turn anti-socials merely because some extra money falls into their hands. Assuming without deciding that this con: ntion is well founded, we are of the opinion that Section SA of the Act takes care ofit. Even if we were to hold that this ground is extraneous or irrelevant, that would not. affect the validity of the detention order F as Section SA was introduced precisely to take care of such a situation.

We, therefore, do not see any merit in the second contention also."

The order of the High Court is accordingly set aside.

The impugned judgment in Criminal Appeal No. 702 of 1999 involves G identical issues.

On both aspects factual as well as legal, in both the appeals, the High Court's judgments are not sustainable and are, therefore, set aside.

The residual question is whether it would be appropriate to direct the H

A respondent in each case to surrender for serving remaining period of detention in view of passage of time. As was noticed in Sunil Fulchand Shah v. Union of India and Ors., [2000] 3 SCC 409, it is for the appropriate State to consider whether the impact of the acts, which led to the order of detention still survives and whether it would be desirable to send back the detenu for B serving remainder period of detention. Necessary order in this regard shall be passed within two months by the appellant - State. Passage of time in all cases cannot be a ground not to send the detenu to serve remainder of the period of detention. It all depends on the facts of the act and the contin!lance or otherwise of the effect of the objectionable acts. The State shall consider whether there still exists a proximte temporal nexus between the period of C detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the appellate order.

Appeals are allowed.

N.J.

Appeals allowed.