Madras High Court
Lakshmi vs Commissioner Of Police, Egmore, Madras ... on 9 July, 1985
Author: S. Natarajan
Bench: S. Natarajan
JUDGMENT Maheswaran, J.
1. This petition under Art. 226 of the Constitution of India by the wife of the detenu is for the issue of a writ of Habeas Corpus and is directed against the order of detention passed by the first respondent in the exercise of powers conferred under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act 1982 (Act 14 of 1982), hereinafter referred to as the Act.
2. The first respondent, Commissioner of Police, Madras City, passed the impugned order under S. 3(1) of the Act, on 29-10-1984 directed the detention of the detenu on the ground that the detenu is a habitual criminal, that he is a goonda and that he has acted in a manner prejudicial to the maintenance of public order. The order of detention was served on the detenu on 30-10-1984, at the Central Prison, Salem. The order of detention has been approved by the Government on 9-11-1984. The detenu sent a representation through the Superintendent of Central prison, Salem, on 9-11-1984, and it was received by the Government on 17-11-1984, and a copy of it was forwarded to the Commissioner of police for remarks, which was received by the Government on 26-11-1984. The representation was rejected by the Government after a careful consideration on 3-12-1984. That order rejecting the representation was served on the detenu. The detenu again sent another representation on 4-12-1984, which was received by the Government on 10-12-1984, through the Superintendent, Central Prison, Salem. The Government again carefully considered the representation and rejected it on 31-12-1984.
3. The detaining authority has cited about seven instances which range from the year 1974 to 1980 to show that the detenu is a habitual criminal and is a goonda. The ground on which the detenu, Kalian alias Raju, has been detained is stated thus : On 31-7-1984, at about 4.30 p.m. the detenu and his wife, Lakshmi alias Radha, along with their female baby came to the shop of Nathan Jewellers situate at No. 154 N.S.C. Bose Road, Madras 1. At that time one Mohanakrishnan, Accountant in the said jewellery shop, was examining a gold bangle. The detenu and his wife told him that they wanted to purchase a gold ring. He kept the gold bangle on the table and took out a set of gold rings and showed them to the detenu and his wife. The detenu and his wife, after examining the gold rings, returned them saying that they were not satisfied with them and left the shop. But, Mohanakrishnan, found that the gold bangle kept by him on the table was missing. Immediately, Mohanakrishnan came out of the shop, shouted at Kalian and Lakshmi and asked them to stop. But, both of them took to their heels and thereupon Mohanakrishnan raised an alarm and on hearing his cries, the passers-by stopped and looked at the culprits who were fleeing. But Mohanakrishnan gave a chase and he was obstructed by the brickbats hurled at him by the detenu and his wife. When he kept on chasing the detenu and his wife, the detenu threatened him with dire consequences. The passers-by got frightened and ran away in fear. The shop-keepers closed their shops and the traffic was dislocated. At that time a police party consisting of a Sub-Inspector and two constables came that way and tried to apprehend the detenu and his wife. But the detenu also threatened the police party saying that he would murder them if they did not leave the place. But one of the constables caught hold of Lakshmi with the baby and on seeing his wife being apprehended, the detenu did not attempt to run. A complaint was given by Mohanakrishnan and a case was registered against the detenu and his wife and they were lodged at the Central Prison, Madras, on remand by the VIII Metropolitan Magistrate. The detaining authority was of the view that if the detenu is let to remain at large, he will indulge in further activities prejudicial to the maintenance of public order and the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in activities prejudicial to the maintenance of public order. Therefore he passed the impugned order detaining the detenu.
4. The order of detention is challenged on the following grounds :-
(1) the grounds of detention are not proximate and relevant;
(2) the particulars as to whether the detenu has preferred appeals against the convictions in respect of the instances enumerated have not been called for by the detaining authority;
(3) the documents in respect of the cases between 1974 and 1980 should have been made available to the detenu;
(4) the assistance of a counsel was not given by the Government to the detenu; and (5) there is inordinate delay in consideration of the representation.
5. In regard to the first contention as regards the proximity and relevancy of the ground, the first respondent detaining authority in his counter-affidavit has stated that 'the antecedents of the detenu have been enumerated for the limited purpose of stating that the detenu is a habitual criminal and is a goonda.' But, strong reliance was placed by the learned counsel for the petitioner on a ruling of a Division Bench of this Court in N. Mohamed Moosa v. Collector and Dist. Magistrate, Ramnad, 1984 Mad LW (Cri) 200. V. Ramaswami, J. who spoke for the Bench has pointed out -
"Though the grounds of detention referred to the latest criminal activity as the ground on which the detention order has been made and the earlier criminal activity is only referred to as cases in which the detenu came to adverse notice, it has been held in a series of decisions of the Supreme Court and this Court that even those cases where the detenu had come to the adverse notice (sic) have to be considered to be grounds of detention."
It is on this passage that the learned counsel for the writ petitioner laid greater force to point out that the instances which are enumerated as having come for 'adverse notice' are really grounds of detention. In order to appreciate this contention, it is necessary to point out the reasons for enactment of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act 1982. It was enacted, as the long cause - title suggests, to provide for preventive detention of bootleggers, drug offenders, goondas, immoral traffic offenders and slum grabbers for preventing their dangerous activities prejudicial to the maintenance of public order. In this petition, we are concerned with the detention of the petitioner's husband who is stated to be a goonda within the meaning of S. 2(f) of the Act.
6. Section 2(f) of the Act, defines the expression 'goondas' as follows :-
"'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 Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860)."
The definition of other expressions are not necessary to be considered for the present, though, in passing a reference will be made to them at a later stage. The Concise Oxford Dictionary, 6th Edn. 1976, page 481, gives the meaning of the word 'habitual' as follows :-
"Customary; constant; continual; given to (specific) habit." In other words, it implies repeated, persistent acts, as opposed to isolated acts. A reading of S. 3 shows that the State Government, may, if satisfied with respect to any bootlegger or drug 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 to do so, make an order directing that such person be detained. The words 'acting in any manner prejudicial to the maintenance of public order' in the case of goondas, have been defined in S. 2(a)(iii) to mean when the goonda is engaged or is making preparations for engaging in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order. There is a plethora of authorities to define as to what act amounts to affecting adversely the maintenance of public order and it is not necessary to go into them. All criminal acts are not likely to affect adversely the maintenance of public order. If, for example, a young man goes to a massage parlour and makes overtures to the girls attending on him, he may be committing an offence, but it does not affect adversely the maintenance of public order. If, on the other hand, the same man stands on a pavement in a busy locality and makes overtures to every passing woman, it would cause apprehension in the minds of woman and he can be said to be engaged in an activity which affects adversely the maintenance of public order. It is therefore manifest that it is not every goonda who can be detained under the Act but only that goonda when he is engaged or is making preparation for engaging in any of his activities as a goonda which affect adversely or is likely to affect adversely the maintenance of public order, who can be detained. In other words, the detaining authority has to first find out whether a person is a goonda or a bootlegger, or a drug offender or a slum grabber in the first instance and if he wants to detain any of them, he has to find out whether that class of person has acted in any manner prejudicial to the maintenance of public order. The detaining authority has therefore to enumerate certain cases or instances to show that the person who is to be detained as a goonda under the Act is a person who by himself or as a member or a leader of a gang, has habitually committed offences or has attempted to commit or has abetted the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.
7. Bearing this in mind, if we refer to the instances or the cases that have come to the adverse notice of the detaining authority, it will be found that the petitioner's husband was convicted of offences under Sections 457 and 380 I.P.C. on 31-7-1984, under S. 380 I.P.C., read with S. 75 I.P.C., on 31-12-1976, and was also involved in a case of the year 1978 under S. 392 read with S. 34 I.P.C. and in another case under S. 392 I.P.C. of the year 1979. He was also involved in a case under Ss. 457 and 380 I.P.C. of the year 1979 and also in a case under Ss. 457 and 380 I.P.C. of the year 1980 and was convicted on 31-7-1981, under Ss. 394 and 397 I.P.C. and sentenced to rigorous imprisonment for seven years. As it has to be shown that the petitioner's husband was a habitual offender committing offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, the detaining authority has to necessarily enumerate a number of cases for a long period as a single act cannot be characterised as habitual act. Moreover, the cases that come to adverse notice of the detaining authority cannot be solitary or isolated act, but must be part of a course of conduct of such or similar activities. It is from these instances the detaining authority has to arrive at the satisfaction that the detenu is a habitual offender and therefore a goonda. These cases are only cases of breach of law and order and do not disturb public order. These cases are enumerated only to show that the detenu is a goonda. The ground on which the detention has been made shows that the goonda was engaged in an activity which has affected adversely the maintenance of public order. This distinction has not been brought to the notice of the learned Judges who decided N. Mohamed Moosa v. Collector and Dist. Magistrate, Ramnad, 1984 Mad LW (Cri) 200. But, however, our attention was invited to Vijay Narain Singh v. State of Bihar, . That was a case where a student of Bhagalpur Law College who was the petitioner in that case, was charged along with a co-accused for offences punishable under S. 302 read with Ss. 34, 120B, 386 and 511 of the Indian Penal Code. A learned single Judge of the Patna High Court directed that the detenu in that case be enlarged on bail on his furnishing bond of Rs. 10,000/-, with two sureties each for a like sum to the satisfaction of the Chief Judicial Magistrate, Bhagalpur. But the District Magistrate, Bhagalpur on being satisfied that the detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order passed the impugned order of detention in that case even before the petitioner could be released on bail. The detenu in that case then challenged the order of detention before the High Court. The State Government filed a counter-affidavit in that case stating that the impugned order of detention was prepared in advance for service on the petitioner when he comes out of jail on the strength of a bail order issued by the High Court but by mistake the three copies of the order instead of being sent to the District Magistrate's Office for service were wrongly delivered at the Central Jail, Bhagalpur. The learned Judges of the High Court dismissed the writ petition holding that they were satisfied that the petitioner was not in detention under the impugned order. But, however, they pointed out that the petitioner could file a fresh petition for a writ of Habeas Corpus, if and when the petitioner was served with a copy of the detention order and placed under detention in prison. But the petitioner filed a petition under Art. 32 of the Constitution before the Supreme Court. Before the Supreme Court the question arose whether the petitioner, the detenu in that case, answers the descriptions of an anti-social element as defined in S. 2(d) of the Bihar Control of Crimes Act 7 of 1981. Their Lordships extracted the definition which runs thus :-
'Anti-social element' means a person who is -
(i) either by himself or as a members of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences, punishable under Chap. XVI or Chap. XVII of the Indian Penal Code; or
(ii) habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act 1956; or
(iii) who by words or otherwise promotes or attempts to promote on grounds of religion, race, language, caste or community or any other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language groups of castes or communities; or
(iv) has been found habitually passing indecent remarks to or teasing women or girls; or
(v) who has been convicted of an offence under S. 25, 26, 27, 28 or 29 of the Arms Act 1959."
Their Lordships then considered the expression 'habitually' and the majority view is that the expression 'habitually' means 'repeatedly' or 'persistently' and it implies a thread of continuity stringing together similar repetitive acts. Their Lordships also pointed out that repeated, persistent and similar, but not isolated or individual or dissimilar acts, are necessary to justify an inference of habit and that it connotes frequent commission of acts. On that view, their Lordships came to the conclusion in that case that as between the first incident and the third incident there was an interval of nearly eight years, the detenu could not be treated as a habitual offender and consequently he cannot be called an 'anti-social element' as defined in that section. Such, however, is not the case here. The incidents range from 1974 to 1980 almost continuously. In the view we have taken, no question of remoteness in point of time arises in this case.
8. In regard to the objection that fuller particulars as regards the question whether the detenu has preferred any appeal against the convictions in the cases cited, the first respondent-detaining authority has stated in his counter that it is only after satisfying that the detenu has not preferred appeals against his conviction in the cases cited in Serial Nos. 1 and 2 that the order of detention was passed. It is further pointed out that copies of F.I.R., charge-sheets and memo of evidence and case diary have also been furnished to the detenu.
9. As regards the contention that the detenu was not given assistance of a counsel by the Government, we may point out that the Act prohibits the detenu from claiming as of right appearance of an advocate at the time of hearing by the Advisory Board.
10. It is pointed out in the affidavit that a reply by the Government to the representation was sent on 3-12-1984, but the same has been received in the Central Prison, Salem on 12-12-1984. The fact that a reply was given to the representation of the detenu even on 3-12-1984, shows that the representation has already been considered. The delay was only in the receipt of that reply by the Central Prison, Salem.
11. The delay has been clearly explained in para. 5 of the counter-affidavit of the Joint Secretary to Government. There is no avoidable delay in considering the representation. The petition has therefore to be dismissed and is hereby dismissed.
12. Petition dismissed.