Madras High Court
Sokkalingam And Kuila vs The State Of Tamil Nadu By Its The ... on 19 June, 2007
Author: R. Banumathi
Bench: P.K. Misra, R. Banumathi
ORDER R. Banumathi, J.
Page 1310
1. In these HCPs, the petitioners challenge the detention order passed by the second respondent, whereby the detenus were detained branding them as 'Goonda', as contemplated under Section 2(f) of under Tamil Nadu Prevention of Dangerous activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14 of 1982].
2. All the five detenus are alleged to have been involved in one adverse case, Cr. No. 1645/2006, alleged to be murder of a watchman in a petrol bunk in Salem. The ground case for passing the detention order is the alleged offence of threatening and demanding money from a shopkeeper/ passerby. The detention order has been passed on the allegation that the detenus are indulging in activities prejudicial to maintenance of public order.
3. The detenus are alleged to be involved in one adverse case and ground cases as under:
Name of Date of Adverse Case, Date of Ground case, Date of
the detenu detention order incident and Police Station incident and Police Station
Puttikannan 15.12.2006 Cr. No. 1645/2006, Cr. No. 1704/2006,
@ Kannan 20.11.2006 Salem Town 01.12.2006 Salem Town
Police Station, Under Police Station Under
Section 147, 148, 302 IPC. Section 392, 427 IPC.
Karthi -do- -do- Cr. No. 1895/2006,
01.12.2006 Kitchipalayam
Police Station Under
Section 392 IPC.
Siva -do- -do- Cr. No. 1731/2006,
01.12.2006 Annadanapatty
Police Station Under
Section 392, 427 IPC
Kannan -do- -do- Cr. No. 1704/2006,
@ Viswanathan 01.12.2006 Salem Town
Police Station Under
Section 392, 427 IPC.
Kandasamy -do- -do- Cr. No. 1895/2006,
01.12.2006 Kitchipalayam
Police Station Under
Section 392 IPC.
All the detenus are alleged to be involved in one common adverse case Cr. No. 1645/2006. Though the ground cases are different, the alleged mode of commission is putting the complainant in instant fear and demanding money/relieving them of money.
Page 1311
4. Assailing the detention orders, since common points were raised, all the Petitions were heard together and disposed of by this common order.
5. The learned Counsel for the petitioners has challenged the detention order mainly on the following grounds:
The ground case alleged to have been committed by each of the detenus is a singular offence and the detenus cannot be termed as 'goonda', as contemplated under Section 2(f) of the Act;
Ground case being an offence under Section 392 IPC, and related to an issue of law and order, rather than affecting the even tempo of life;
There no proper application of mind nor satisfaction as to the imminent possibility of the detenus being released on bail in both the cases;
6. In the ground case against the detenus, Puttikannan @ Kannan and Kannan @ Viswanathan are alleged to have robbed the wrist watch and Rs. 450 from the complainant Govindasamy, in Fruit Market in Salem Town Bazaar street, regarding which ground case Cr. No. 1704/2006 under Section 392 IPC and Section 427 IPC was registered. On 01.12.2006 at about 3 p.m.; the detenus Karthi and Kandasami are alleged to have threatened the complainant Mohan and demanded money while he was proceeding in Karuvattupalam in Kichipalayam regarding which ground case in Cr. No. 1895/2006 under Section 392 IPC was registered. Likewise, for the alleged demanding of money from the complainant and committing robbery of Rs. 250 and gold ring from complainant Sundar, a case under Section 392 and 427 IPC was registered against the detenu in Cr. No. 1731/2006.
7. The learned Counsel for the petitioners has submitted that the grounds of detention refers to only one incident and there is no material to show that the detenu was habitually committing the crime. It was further submitted that it is the impact of an act and not the number of acts which determine whether the act could be relatable to a public order or not and the acts committed by the detenu cannot be said to have affected the even tempo of life and public tranquility. In support of her contention, the learned Counsel for the petitioners placed reliance upon - AIR 1970 SC 1228 [Arun Ghosh v. State of West Bengal; 2006(3) SCC Crl.11 : 2007 (1) LW Crl. 338 [R. Kalavathi v. State of T.N. and Ors.]; 1992 LW Crl. 488 [Masanam v. District Magistrate & Collector]; 1995(3) SCC 237 [Mustakmiya Jabbaramiya Shaik v. K.M. Mehta].
8. In the decision of the Supreme Court reported in (2006) 3 SCC (Cri) 11 [R. Kalavathi v. State of T.N. and Ors.], which has been relied upon by the learned Counsel for the petitioner, the order of detention was quashed by the Supreme Court as the grounds of detention referred to only one incident Page 1312 and there was no material to show that the detenu was habitually committing crime. There was no reference to any other crime and therefore order of detention was quashed. After referring to the definition clause in Act 14/1982, the Supreme Court observed:
9.A bare reading of the provision makes the position clear that in order to attract action in terms of Section 3(1) of the Act, the detenu must be one who is a 'goonda' as defined under Section 2(f) of the Act. Though in other preventive detention laws, even a single act which has the propensity of affecting the even tempo of life and public tranquility would be sufficient for detention, being prejudicial to maintenance of public order. for the purpose of the Act the detenu has to be a 'goonda' as defined under Section 2(f) of the Act.
...
11. This Court in Vinay Narain Singh v. State of Bihar 1984 (3) SCC 14 : 1984 SCC (Cri) 361 considered the question o a habitual criminal and in para 31 the expression 'habitually' was explained as follows:
The expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repeated acts. An isolated default of rent would not mean that the Tenant was a habitual defaulter. [Vijay Amba Das Diware v. Balakrishna Waman Dande 2000(4) SCC 126].
...
13. The expression 'habitually' is very significant. A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be continuity in the commission of those offences. [Ayub v. S.N. Sinha 1990(4) SCC 552].
14. From one single transaction though consisting of several acts, a habit cannot be attributed to a person.
9. In Kalavathi's case even though the incident related to the question of public order, since the offence committed was a singular offence by the detenu, the Supreme Court came to the conclusion that the detenu was not a goonda and therefore, the order of detention was quashed. We are of the considered view that the ratio of the above decision and other decisions are not applicable to the facts of the present case.
10. By a reading of Section 3(1), it is seen that the Detaining Authority must be satisfied that the person comes within the meaning of 'Goonda'. In the case in hand, the adverse case is the alleged involvement of the Page 1313 detenus under Sections - forming unlawful assembly, armed with deadly weapons and committing murder. The ground case is an offence committed against property, falling under Chapter XVII of IPC, putting him in instant fear of hurt and committing robbery. Keeping in view the propensity to commit offence, the past activity reasonably suggests repetitive tendency on the part of the detenu and the subjective satisfaction of the second respondent branding the detenus as 'Goonda' cannot be assailed. The contention that there being only one incident and the detenus not being habitual offenders is therefore not acceptable.
11. It was further submitted that the individual act like offence under Section 392 and 427 IPC cannot be said to be subversive of public order and could only be related to the issue of law and order. In support of her contention, the learned Counsel has placed reliance upon AIR 1970 SC 1228 [Arun Ghosh v. State of West Bengal], 2004 SCC Cri 1944 [Commissioner of Police and Ors. v. C. Anitha] and 1984 SCC Cri 361 [Vijay Narain Singh v. State of Bihar and Ors.]. In our view, having regard to the material on record, it is not necessary to consider this ground since the next ground of challenge must succeed.
12. The next point urged is that on the date of order of detention, the detenus were already in custody and remanded in connection with ground case and also in connection with murder case. It was further submitted that when the detenus were involved in grave offences under Section 302 IPC, there was no question of their being released on bail. It is the contention of the learned Counsel for the petitioners that as a matter of fact, the detenus did not apply for bail and therefore, the detention was unwarranted and therefore, there is no genuine satisfaction as to the imminent possibility of the detenus being released on bail.
13. The learned Counsel for the petitioner contended that there was no proper application of mind regarding the imminent possibility of the detenus likely to be released on bail and on that ground, the detention order is likely to be quashed. In support of her contention, the learned Counsel for the petitioner relied upon a number of decisions - 2006(1) SCC Crl. 593 - T.V. Saravanan v. State through Secretary and Anr; 2006(3) SCC Crl 371 [A. Shanthi v. Govt. of T.N. and Ors.]; 2005(4) CTC 497 - [K. Thirupathi v. District Magistrate & District Collector, Tiruchi and Anr.].
14. Drawing the attention of the Court to the grounds of detention, the learned Additional Public Prosecutor has submitted that the Detaining Authority has clearly mentioned in the grounds about his awareness of judicial custody of the detenus and possibility of their being released on bail in near future by filing bail applications. The learned Additional Public Prosecutor further submitted that it cannot be said that the Detaining Authority did not apply his mind to this aspect and he has clearly noted that though the detenus were in jail, there is likelihood of their being Page 1314 released on bail and therefore, it is clear that the Detaining Authority has applied his mind to this aspect.
15. In the light of the above contentions, we have to mainly see whether there was awareness in the mind of the Detaining Authority that the detenus are in custody and that he had reason to believe that the detenus are likely to be released.
16. The principle in this regard is well settled by a catena of cases - Meera Rani v. State of Tamil Nadu - 1989(4)SCC 418; Darmendra Suganchat Chelawat case - 1990 (1) SC 746; Kamarunnissa v. Union of India - 1991 (1)SCC 128; Abdul Satar Ibrahim manik v. Union of India - 1992(1) SCC 1; [vide 1994 SCC Crl. 482 [Veeramani v. State of T.N.] [Sanjay Kumar Agarwal v. Union of India- 1990(3) SCC 309;
17. Referring to almost all the earlier case laws, in 2004(8) SCC 106 [T.P. Moideen Koya v. State of Kerala], the Supreme Court has summarized the position of law as under:
9. In T.P. Moideen Koya's case 2004(8) SCC 106, the statement of law made in para 21 is relevant:
21. In Binod Singh v. District Magistrate, 1986 (4) SCC 416 : 1986 SCC (Cri) 106, there were several criminal cases against the detenu including a murder case in which investigation was in progress. At the time when the detention order was pased, the detenu had surrendered in respect of the criminal charge. The detention order was served soon after he surrendered in the murder case. The Court then held that from the affidavit of the District Magistrate it did not appear that either the prospect of the immediate release of the detenu or other factors which could justify the detenu of a person already in custody, were properly considered in the light of the principles laid down in Rameshwar Shaw v. District Magistrate AIR 1964 SC 334 and Ramesh Yadav v. District Magistrate 1985 (4) SC 232. The principle is that if a Page 1315 person is in custody an there is no imminent possibility of his being released therefrom, the power of the detention should not ordinarily be exercised. There must be cogent material before the authority passing the detention order for inferring that the detenu was likely to be released on bail. In Kamarunnissa v. Union of India 1991 (1) SCC 128, after review of all the earlier decisions, the law on the point was enunciated as under in para 13 of the Report : (SCC PP.140-41)
13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (i)if the authority passing the order is aware of the fact that he is actually in custody; (2)if he has reason to believe on the basis of reliable material placed before him (a)that there is a real possibility of his being released on bail, and (b)that on being so released he would in all probability indulge in prejudicial activity, and (3)if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this Court stated in the case of Ramesh Yadav 1985 (4)SCC 232, was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention.
18. Referring to various case laws on the subject of preventive detention, in 2004 SCC Crl. 239 [Union of India v. Paul Manickam], Justice Arijit Pasayat has eloquently reiterated the position of law on this aspect as under:
14. ...Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The Detaining Authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. if the Detaining Authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order Page 1316 can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated [N. Meera Rani v. Govt of T.N. 1989 (4) SCC 418 : 1989 SCC (Cri) 732; Dharmendra Suganchand Chelawat v. Union of India 1990(1) SCC 746 : 1990 SCC (Cri) 249. The point was gone in detail in Kamarunnissa v. Union of India 1991 (1) SCC 128. The principles were set out as follows : even in the case of a person in custody, a detention order can be validly passed : (1)if the authority passing the order is aware of the fact that he is actually in custody; (2)if he has a reason to believe on the basis of reliable material placed before him (a)that there is a real possibility of his release on bail, and (b)that on being released, he would in all probability indulge in prejudicial activities; and (3)if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail.
19. A question was referred to the Full Bench of this Court as to "whether the failure to use the word 'imminent possibility' in the order of detention would make the order invalid and whether the Detaining Authority could be justified in using other convincing expressions". After elaborate consideration of various case laws on this aspect, in 2005 (2) LW Crl. 946 : 2005(4) CTC 497 [K. Thirupathi v. District Magistrate and District Collector, Tiruchirapalli District and Anr.], Justice P. Sathasivam, speaking for the Bench has elucidated the position in the following words:
26. There must be cogent material before the Authority passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from material on record and must not be the ipse dixit of the Authority passing the detention order.
27. In the case of a person in custody, a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of reliable material placed before him (a)that there is a real possibility of his being released on bail, and (b)if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording its satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court.
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20. Holding that when detenu is already in jail or custody, imminent possibility of his release on bail and apprehension of Detaining Authority must be based on cogent material, in 2006(1) SCC Crl 593 [T.V. Saravanan @ S.A.R. Prasana Venkatachariar Chaturvedi], the Supreme Court has held as follows:
We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant had been rejected by the Courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The 'imminent possibility' of the appellant coming out on bail is merely the ipse dixit of the Detaining Authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. There was, therefore, no sufficient compliance with the requirements as laid down by this Court.
21. Following T.V. Saravanan's case in 2006(3) SCC Crl 371 [A. Shanthi v. Govt. of T.N. and Ors.], the Supreme Court has held that the "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention.
22. In the light of the above well settled position of law, it is to be seen whether the Detaining Authority was aware that the detenus were actually in custody and on the basis of the materials placed before him, he had reason to believe that there is real possibility of the detenus being released on bail.
23. In the grounds of detention, Detaining Authority has recorded his awareness and satisfaction as under:
I am aware that Thiru Putti Kannan @ Kannan had been remanded to judicial custody in this case and previous case on 02.12.2006 and that he is still in Central Prison, Salem as a remand prisoner. I am also aware that no bail application has been filed by him or on his behalf so far. But the real possibility of his filing a bail application in near future cannot also be ruled out. I am aware that if he applies for bail, there is real possibility to be released on bail, because in similar cases bail is granted by the same Court or the higher Court after efflux of certain time.
Page 1318 To the same effect is the detention orders of other detenus.
24. We find much force in the contention of the learned Counsel for the petitioner that the detenus who are allegedly involved in murder case under Section 302 IPC have allegedly murdered a watchman of a petrol bunk would not be released on bail so casually, as is being stated by the Detaining Authority which only shows that he has not properly applied his mind.
25. The detenus were arrested on 01.12.2006/02.12.2006. In the ground case as well as in the adverse case, the accused were remanded till 16.12.2006. None of them have filed bail application in the grounds case. In 1989 Crl.LW 2190, Meera Rani v. Government of Tamil Nadu, the Supreme Court has used the word "cogent material" Supreme Court further held that the Detaining Authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order, but, even so, if the Detaining Authority is reasonably satisfied on account of cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release. In this case Court pointed out that there was no indication in the detention order read with annexure that the detaining authority considered it likely that the detenu could be released on bail where detenu was in jail with no prospect of his release.
26. Though the learned Additional Public Prosecutor has submitted that the Detaining Authority was reasonably satisfied on the basis of cogent material that there is likelihood of release of detenus, however, from the Paper Book we find that there was no such material, much less cogent material, to satisfy that Detaining Authority had reason to believe that the detenus are likely to be released on bail. The statement in the grounds of detention "But the real possibility of his filing a bail application in near future cannot also be ruled out. I am aware that if he applies for bail, there is real possibility to be released on bail, because in similar cases bail is granted by the same Court or the higher Court after efflux of certain time" is a vague statement. The Detaining Authority has not indicated his mind as to the possibility of filing bail application whether in Sessions case or in robbery case [i.e. in Magistrate's Court]. No cogent material was placed before the Detaining Authority on the real possibility of the detenus coming out on bail. Further, when the detenus were remanded to judicial custody in two cases, there is no proper conclusion as to the real possibility of the detenus being released on bail. In our considered view, there was no material to apprehend that the detenus were likely to move bail applications or there was imminent possibility of the detenus being released on bail. Therefore, there is no sufficient compliance with the requirements as laid down by the Supreme Court and the detention order is liable to be quashed on this ground of non application of mind.
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27. In the result, all the HCPs are allowed and the detention orders are quashed. The concerned Court shall consider the bail applications on merits, if any to be filed by the detenus, not being influenced by the views expressed in this order. The detenus are directed to be set at liberty forthwith unless they are required in connection with any other case.