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On 21.07.2011, respondent No.2 – Commissioner of Police passed a detention order against the detenu under Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers 2 = Detaining Authority has concluded as under:- “Hence, I am satisfied that the accused Kajamalai Viji @ Vijay is habitually committing crimes and also acting in a manner prejudicial to the maintenance of Public order and as such he is a Goonda as contemplated under Section 2(f) of the Tamil Nadu Act No. 14 of 1982. By committing the above described grave crime in a busy locality cum business area, he has created a feeling of insecurity in the minds of the people of the area in which the occurrence took place and thereby acted in a manner prejudicial to the maintenance of public order.”= we are in entire agreement with the conclusion arrived at by the High Court, consequently, the appeal fails and the same is dismissed.

REPORTABLE

Habeas Corpus (1928 film)

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 417 OF 2012

(Arising out of S.L.P. (Crl.) No. 9716 of 2011)

Subramanian …. Appellant(s)

Versus

State of Tamil Nadu & Anr. …. Respondent(s)

J U D G M E N T
P.Sathasivam,J.
1) Leave granted.

2) This appeal is directed against the final judgment and

order dated 09.12.2011 passed by the High Court of

Judicature at Madras in Habeas Corpus Petition No. 937 of

2011 whereby the High Court dismissed the petition filed by

the appellant herein.

1
3) Brief facts:
a) The appellant is the father of the Detenu. The Detenu

has a dispute regarding their land with one Kaliyamoorty for

which a Civil Suit being O.S. No. 452 of 2008 is pending before

the Subordinate Judge at Trichy. The said Kaliyamoorty filed

a complaint with police on 18.07.2011 complaining that the

detenu armed with aruval (sickle) along with his associates

apart from threatening the de facto complainant Kaliyamoorty

caused damage to the STD booth by damaging the glasses and

chairs. Accordingly, an FIR being Crime No. 361 of 2011 was

registered by the K.K. Nagar Police Station, Trichy. The

complainant – Kaliyamoorthy had already lodged a complaint

before the City Crime Branch, Trichy, on 07.02.2010, which

was registered by the Police as Case Crime No. 3 of 2010

which is still pending.

b) On 21.07.2011, respondent No.2 – Commissioner of

Police passed a detention order against the detenu under

Section 3 of the Tamil Nadu Prevention of Dangerous Activities

of Bootleggers, Drug Offenders, Forest Offenders, Goondas,

Immoral Traffic Offenders, Sand Offenders, Slum Grabbers
2
and Video Pirates Act, 1982 (14 of 1982) while holding the

detenu to be a `goonda’ noticing his involvement in the case of

18.07.2011 as well as three past cases of the years 2008 and

2010.

c) Against the said order of detention, the appellant sent a

representation to the Detaining Authority on 25.07.2011 for

revoking the detention order. He also made a representation

to the State Government, which is the approving authority,

against the said order. After receiving the representation of

the appellant on 28.07.2011, the Detaining Authority

forwarded the same to the Government recommending

rejection of the same. On 12.08.2011, the State Government

after due consideration rejected the said representation.

d) Aggrieved by the said decision of the State Government,

the appellant herein filed Habeas Corpus Petition before the

High Court. The High Court, by its impugned judgment dated

09.12.2011, dismissed the said petition.

e) Challenging the said judgment of the High Court, the

appellant has filed this appeal by way of special leave before

this Court.
3
4) Heard Mr. A. Sharan, learned senior counsel for the

appellant and Mr. Guru Krishnakumar, learned Additional

Advocate General for the respondents.

5) Mr. A. Sharan, learned senior counsel for the appellant

after taking us through the detention order and the impugned

order of the High Court confirming the same submitted that

from the materials placed, the Detaining Authority has not

made out a case for preventive detention. He also submitted

that even if the stand of the Detaining Authority is acceptable,

the alleged action of the detenu, at the most, is only a law and

order problem and not of public order as arrived at by the said

Authority for invoking the T.N. Act 14 of 1982. He further

submitted that the reference made by the Detaining Authority

in all the three places in the grounds of detention that the

accused obtained regular bail and not anticipatory bail shows

non-application of mind by the Authority. He also submitted

that failure on the part of the Detaining Authority to consider

the representation of the detenu vitiates the entire order.

Finally, he submitted that the cases relied on by the Detaining

4
Authority are stale and there is no ground for invoking the

provisions of T.N. Act 14 of 1982.

6) On the other hand, Mr. Guru Krishnakumar, learned

Additional Advocate General for the State of Tamil Nadu, by

taking us through the grounds of detention, reasoning of the

High Court in confirming the same and the materials placed in

the form of counter affidavit before this Court submitted that

none of the arguments advanced by the senior counsel for the

detenu is acceptable and there is no ground for interference by

this Court.

7) Before considering the rival submissions, it is relevant to

refer the definition of `Goonda‘ as described in T.N. Act 14 of

1982 which reads thus:

2(f) “goonda” means a person, who either by himself or as a

member of or leader of a gang, habitually commits, or

attempts to commit or abets the commission of offences,

punishable under section 153 or section 153-A under

Chapter VIII or under Chapter XVI or Chapter XVII or

Chapter XXII of the Indian Penal Code, 1860 (Central Act

XLV of 1860) or punishable under section 3 or section 4 or

section 5 of the Tamil Nadu Property (Prevention of Damage

and Loss) Act, 1992 (Tamil Nadu Act 59 of 1992).

The said Act was enacted by the State in the year 1982 and

subsequently amended expanding the scope of the Act in order

5
to prevent certain persons from dangerous activities which are

prejudicial to the maintenance of public order. Since there is

no dispute as to the power and execution, there is no need to

refer other provisions.

8) We have carefully perused all the relevant materials and

considered the rival submissions.

9) With regard to the first submission that no case is made

out for preventive detention by invoking the provisions of T.N.

Act 14 of 1982, though the ground case incident arose out of a

land dispute between the detenu and the de facto

complainant, however, the argument that it is only a law and

order problem and that public order was not disturbed is

contrary to the facts and equally untenable. As rightly pointed

out by Mr. Guru Krishnakumar, the Detaining Authority, on

consideration of materials placed has found that the accused

caused damage to both public and private properties,

threatened the public and also created a situation of panic

among the public. In this regard, it is useful to refer the

materials narrated in the grounds of detention which are as

follows:
6
“On 18.07.2011, at about 10:00 hours, while Kaliyamoorthy

was available in the STD booth, Kajamalai Kadaiveethi,

Kajamalai, Tiruchirapalli city, the accused Kajamalai Viji @

Vijay armed with aruval, his associates Manikandan,

Uthayan, Sathiya, Sivakumar armed with Kattas came there.

The accused Kajamalai Viji @ Vijay abused Kaliyamoorthy in

a filthy language, threatened to murder him with aruval by

saying “Have you become such a big person to give

complaints against me. You bastard, try giving a complaint, I

will chop you down right here.”

His associates threatened him with their respective kattas.

Thereafter, the accused Kajamalai Viji @ Vijay caused

damage to the glasses, chair and stool available in the shop.

While Kaliyamoorthy questioned them, the accused

Kajamalai Viji @ Vijay slapped him on the face.

Kaliyamoorthy raised alarm for rescue. The general public

came there and they were threatened by the accused

Kajamalai Viji @ Vijay and his associates by saying “if

anyone turns up as witness, I will kill them.” The nearby

shop-keepers closed their shops out of fear. Auto drivers

took their autos from the stand and left the place. The

situation created panic among the public. On the complaint

of Kaliyamoorthy, a case in K.K. Nagar P.S. Cr. No.

361/2011 u/s 147, 148, 447, 448, 427, 294(b), 323, 506(ii)

IPC and 3 P.P.D. Act was registered.”

10) From the above materials, the Detaining Authority was

satisfied that the detenu is habitually committing crimes and

also acting in a manner prejudicial to the maintenance of

public order and as such he is a `goonda’ as contemplated

under Section 2(f) of the T.N. Act 14 of 1982. The order

further shows that the Detaining Authority found that there is

a compelling necessity to detain him in order to prevent him

7
from indulging in such activities in future which are

prejudicial to the maintenance of public order. After narrating

the details of the ground case and after adverting to earlier

instances commencing from the years 2008 and 2010, the

Detaining Authority has concluded as under:-

“Hence, I am satisfied that the accused Kajamalai Viji @

Vijay is habitually committing crimes and also acting in a

manner prejudicial to the maintenance of Public order and

as such he is a Goonda as contemplated under Section 2(f)

of the Tamil Nadu Act No. 14 of 1982. By committing the

above described grave crime in a busy locality cum business

area, he has created a feeling of insecurity in the minds of

the people of the area in which the occurrence took place

and thereby acted in a manner prejudicial to the

maintenance of public order.”

11) It is well settled that the court does not interfere with the

subjective satisfaction reached by the Detaining Authority

except in exceptional and extremely limited grounds. The

court cannot substitute its own opinion for that of the

Detaining Authority when the grounds of detention are

precise, pertinent, proximate and relevant, that sufficiency of

grounds is not for the Court but for the Detaining Authority

for the formation of subjective satisfaction that the detention

of a person with a view to preventing him from acting in any

8
manner prejudicial to public order is required and that such

satisfaction is subjective and not objective. The object of the

law of preventive detention is not punitive but only preventive

and further that the action of the executive in detaining a

person being only precautionary, normally, the matter has

necessarily to be left to the discretion of the executive

authority. It is not practicable to lay down objective rules of

conduct in an exhaustive manner. The satisfaction of the

Detaining Authority, therefore, is considered to be of primary

importance with certain latitude in the exercise of its

discretion.

12) The next contention on behalf of the detenu, assailing the

detention order on the plea that there is a difference between

`law and order’ and `public order’ cannot also be sustained

since this Court in a series of decisions recognized that public

order is the even tempo of life of the community taking the

country as a whole or even a specified locality. [Vide
Pushpa Devi M. Jatia vs. M.L. Wadhawan & Ors., 1987 (3)
SCC 367 paras 11 & 14; Ram Manohar Lohia vs. State of
Bihar (1966) 1 SCR 709; Union of India vs. Arvind Shergill
9
& Anr. 2000 (7) SCC 601 paras 4 & 6; Sunil Fulchand Shah
vs. Union of India & Ors. 2000 (3) SCC 409 para 28

(Constitution Bench); Commissioner of Police & Ors. vs. C.
Anita (Smt), 2004 (7) SCC 467 paras 5, 7 & 13].
13) We have already extracted the discussion, analysis and

the ultimate decision of the Detaining Authority with reference

to the ground case dated 18.07.2011. It is clear that the

detenu, armed with `aruval’, along with his associates, armed

with `katta’ came to the place of the complainant. The detenu

abused the complainant in filthy language and threatened to

murder him. His associates also threatened him. The detenu

not only threatened the complainant with weapon like `aruval’

but also damaged the properties available in the shop. When

the complainant questioned the detenu and his associates, the

detenu slapped him on his face. When the complainant raised

an alarm for rescue, on the arrival of general public in and

around, they were also threatened by the detenu and his

associates that they will kill them. It is also seen from the

grounds of detention that because of the threat by the detenu

and his associates by showing weapons, the nearby shop
10
keepers closed their shops out of fear and auto drivers took

their autos from their stand and left the place. According to

the Detaining Authority, the above scene created a panic

among the public. In such circumstances, the scene created

by the detenu and his associates cannot be termed as only law

and order problem but it is public order as assessed by the

Detaining Authority who is supposed to safeguard and protect

the interest of public. Accordingly, we reject the contention

raised by learned senior counsel for the appellant.

14) The next contention relates to non-application of mind by

the Detaining Authority in respect of the bail obtained by the

detenu. Learned AAG, by drawing our attention to the factual

details narrated in the grounds of detention and in the counter

affidavit submitted that such argument is factually incorrect.

A contention has been raised that the accused had obtained

regular bail in all the criminal cases referred to in the

detention order and not anticipatory bail as noted therein, and

therefore, there is non-application of the mind to the relevant

material by the Detaining Authority. As rightly pointed out by

learned counsel for the State, the said claim is factually
11
incorrect. It is also brought to our notice that the said

submission was made only now before this Court as an

afterthought. A perusal of the impugned order of the High

Court clearly shows that the only contention before the High

Court was that the detenu got regular bail in Crime No. 727 of

2010 but the Detaining Authority has wrongly mentioned the

same as anticipatory bail. Further, no specific ground has

been raised in the SLP. The only ground is that the copy of

the anticipatory bail order in Crime No. 727 of 2010 was not

given to the detenu which is also contrary to the record since

it is specifically stated so in the detention order and averred in

the counter affidavit that all the materials were duly furnished

to the detenu. There is no denial of the same by filing

rejoinder. Further, it is pointed out that the detenu had

obtained anticipatory bail in the cases referred to in the

detention order including in Crime No. 727 of 2010,

accordingly, the said contention is also liable to be rejected.

15) It is also relevant to refer the finding of the High Court

that the detenu being granted bail or anticipatory bail does not

matter as far as the fact remains that he was not on remand
12
in those cases and there was no prejudice to the detenu by

reason of the reference made in the detention order. The High

Court has rightly observed that the bail petition in respect of

the ground case was pending before the Sessions Judge,

Tiruchirapalli and he was very likely to be released on bail and

if he comes out on bail, he would indulge in future activities

which will be prejudicial to the maintenance of public order.

16) Learned senior counsel for the detenu next submitted

that there was non-consideration of the representation of the

detenu by the Detaining Authority which vitiates the entire

detention order. The representation was received only on

28.07.2011 by the Detaining Authority. It is pointed out that

within a day, i.e., on 29.07.2011 itself, the detention order was

approved by the Government. In such circumstances, the

Detaining Authority could not consider the representation.

Further once the Government affirms the detention order, the

Detaining Authority had become functus officio. [Vide Sri
Anand Hanumathsa Katare vs. Additional District
Magistrate & Ors. 2006 (10) SCC 725 paras 9 & 13]. Even
otherwise, as rightly pointed out by the learned counsel for the
13
State, this argument is solely baseless since the detenu

simultaneously made a representation to the Government and

the Government had fully considered his representation and

rejected the same on 12.08.2011. Further, the Advisory Board

has also rejected the representation of the detenu by order

dated 23.08.2011 thereby confirming the detention. This is

also clear from the information furnished in the counter

affidavit filed on behalf of the respondent-State before this

Court.

17) Finally, learned senior counsel for the appellant

submitted that the cases relied on by the Detaining Authority

are stale. In order to answer this contention, we once again

perused the entire grounds of detention. The ground case

relates to the occurrence dated 18.07.2011 and prior to that,

the detenu was involved in two cases in the year 2010 and one

case in the year 2008. The above details clearly show that the

detenu was a habitual offender and as such instances shown

are not stale as argued by the learned senior counsel for the

appellant. These aspects have been taken note of by the High

Court, in fact, the High Court has found that the detenu had
14
indulged in one case in the year 2008 and two cases in the

year 2010 and the ground case in 2011. The particulars also

show that in the year 2010, the detenu had indulged in two

cases within a span of 6 months and again had indulged in

the ground case in the year 2011, therefore, incident nos. 2

and 3 cannot be said to be stale and, in such circumstance,

the conclusion of the Detaining Authority that the detenu was

a habitual offender cannot be considered to be based on stale

instances.

18) The incidents have been highlighted in the grounds of

detention coupled with the definite indication as to the impact

thereof which have been precisely stated in the grounds of

detention mentioned above. All the incidents mentioned in the

grounds of detention clearly substantiate the subjective

satisfaction arrived at by the Detaining Authority as to how

the acts of the detenu were prejudicial to the maintenance of

public order. All these aspects have been considered by the

High Court which rightly affirmed the detention order.

19) In view of the above conclusion, while there is no quarrel

as to the proposition of law in the decisions relied on by the
15
learned senior counsel for the detenu, namely, Commissioner
of Police (supra), Union of India vs. Paul Manickam &
Anr., (2003) 8 SCC 342, M. Ahamedkutty vs. Union of India
and Another, (1990) 2 SCC 1, the same are inapplicable as
being distinguished, more particularly, in view of the factual

details stated in the impugned detention order, we are not

referring to those decisions in detail.
20) In the light of the above discussion, we are unable to

accept any of the submissions made on behalf of the

appellant, on the other hand, we are in entire agreement with

the conclusion arrived at by the High Court, consequently, the

appeal fails and the same is dismissed.

…………………………………….J.

(P. SATHASIVAM)

…………………………………….J.

(J. CHELAMESWAR)

NEW DELHI;

FEBRUARY 21, 2012.

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