REPORTABLE
Image via Wikipedia
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.
16
Related articles
- two months delay in disposal of representation of detenu is illegal and as such the detention order are not correct = an order of detention under Section 3 of the COFEPOSA was served on all the detenus on 10th March, 2011 on whose be (advocatemmmohan.wordpress.com)
- Prolonged preventive detention unconstitutional:SC (indialawyers.wordpress.com)
advocatemmmohan 
Discussion
Comments are closed.