Madras High Court
M. Pari vs The State Of Tamil Nadu on 18 June, 2013
Bench: V. Dhanapalan, C.T. Selvam
In the High Court of Judicature at Madras
Dated :: 18..06..2013
Coram ::
The Hon'ble Mr. Justice V. Dhanapalan
and
The Hon'ble Mr. Justice C.T. Selvam
H.C.P. No: 700 of 2013
&
M.P.No.1 of 2013
M. Pari
No: 4, Law Chambers
High Court Buildings
Chennai 600 104. .. Petitioner
-vs-
1. The State of Tamil Nadu
Rep. by its Secretary
Department of Home, Prohibition & Excise
Fort St. George
Chennai 600 009.
2. The District Collector and District Magistrate
Salem District
Salem. .. Respondents
.. .. ..
Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus by calling for the records in C.M.P. No: 6/Goonda/C2/2013 dated 14.04.2013 on the file of the 2nd respondent herein and quash the same as illeal and direct the respondents to produce the detenue Hari Babu, son of Govindarajan, now confined at Central Prison, Coimbatore, before this Hon'ble Court and set him at liberty.
For petitioner :: M/s. R. Sankarasubbu
For respondents :: Mr. M. Maharaja
Additional Public Prosecutor
.. .. ..
O R D E R
(Order of the Court was made by V. Dhanapalan, J.) The petitioner is a friend of the detenu and challenge is made to the order of detention dated 14.04.2013 made in C.M.P. No: 6/GOONDA/C2/2013, passed by the 2nd respondent under which the detenu has been branded as a Goonda and detained under The 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, hereinafter referred to as Tamil Nadu Act 14 of 1982.
2. As per the grounds of detention dated 14.04.2013, the detenu came to the adverse notice in the following cases :-
<-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-> Sl.
No. Police Station & Crime No. Section of Law <-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-> 1 Pallappatty P.S. - Cr. No: 1048 of 2009 147, 148 & 341 I.P.C.
and 3 (i) & 5 of TNPPD Act,1992 <-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-> 2 Pallappatty P.S. - Cr. No: 1049 of 2009 147, 148, 324 & 341 I.P.C.
and Sec. 3 (i) & 5 of TNPPD Act, 1992.
<-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-><-> 3 Salem Town P.S. - Cr. No: 1800 of 2009 143, 341 and 188 I.P.C.
and Sec. 7 (1) (a) of CLA Act.
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3. In para-3 of the grounds of detention, it is stated among other things that the detenu is also involved in the commission of the offence, which took place on 05.04.2013 at 10.30 hours., which led to the registration of a case by Veeranam Police Station in Crime No. 168 of 2013 under Sections 147, 149, 153, 189, 342, 353 and 506 (i) IPC. It is further stated that the detenu was arrested on 05.04.2013 at 11.00 hours and was produced before the Court of Judicial Magistrate No:IV, Salem, on the same day and remanded to judicial custody till 19.04.2013 and later, the remand period was extended. The detaining authority, on being satisfied with the materials placed before him that the activities of the detenu are prejudicial to the maintenance of public order, clamped the order of detention. Challenging the said order, petitioner is before this Court in this habeas corpus petition.
4. The 2nd respondent herein has filed counter affidavit contending inter alia that the detenu is an active member of CPCL, which is an supportive organisation of CPI (ML) which is banned by the Government, the detenu has conducted demonstrations to create a scene in the mind of general public that the Government Machinery is under his control and several cases against the detenu are pending in Salem City and rural police Stations. Though the detenu is provided with police security, he will avoid the PSO whenever he goes for such kind of activities like locking the police station, etc. The averment of the petitioner that the detention of the detenu under Goondas Act is a malacious act of the district administration at the instance of the local police is not correct as the detaining authority has passed the detention order with due application of mind, being satisfied after careful perusal of all materials and records and grounds of detention. The detaining authority has also considered in the grounds of detention that the detenu has been habitually indulging in such activities that are in a manner prejudicial to the maintenance of public order and public peace. The averment of the petitioner that the adverse cases are of the year 2009 and are stale and irrelevent to detain the detenu is not correct as during the commission of those offences, the detenu and his associates have caused panic in the minds of the general public and has damaged public properties and again indulged in the same kind of acts during the commission of the subsequent offence also. The averment of the petitioner that the ground case is an act of law and order probelm and it could be tackled under the normal law of the land is not correct as the activities of the detenu and his associates during the commission of the offence in the ground case has created panic in the minds of general public and the activities of the detenu affected public order and public peace and recourse to normal criminal law could not have the desired result of effectively preventing the detenu from indulging in such activities since the detenu was detained under Act 14 of 1982 as a preventive measure. It is further stated in the counter that the averment of the petitioner that the detenu has not committed any offence and he has demonstrated peacefully and he has not locked the police station is not correct and actually, the petitioner, calling the media people, locked the Veeranam police station forcibly and threatened the policemen before the press people. Accordingly, the respondents prayed for dismissal of this petition.
5. We have heard Mr. R. Sankarasubbu, learned counsel appearing for the petitioner and Mr. M. Maharaja learned Additional Public Prosecutor appearing for the State, exhaustively.
6. Though Mr.R.Sankarasubbu learned counsel appearing for the petitioner raised several grounds to assail the order of detention, at the foremost he contended that the impugned order of detention was passed on stale grounds and hence, the same cannot be sustained. Learned counsel would consistently state that the detenu is a practising lawyer and he has not indulged in any unlawful activity much less activities prejudicial to the public at large. He pointed out that the ground case and adverse cases have no live link as the adverse cases relate to the year 2009 and the ground case is one registered in the year 2013, and therefore, the detaining authority has not applied his mind while passing the detention order branding the detenu as "Goonda", and the detenu is not a habitual offender. By pointing out to paragraph 4 of the detention order, learned counsel would submit that the detaining authority has mechanically stated that the bail petition may be taken up for consideration whereas the bail application is still pending and therefore, in that aspect also the order in question has been passed with total non application of mind.
7. In support of his submission, the learned counsel for the petitioner relied on the decision of the Supreme Court reported in 2011 (3) MLJ (Crl.) 422 (SC) in the case of Rekha vs. State of Tamil Nadu and another.
8. On the other hand, Mr.M. Maharaja, learned Additional Public Prosecutor would contend that the gravity of the offence committed in the ground case has to be looked into by this Court. He submits that even though a stale case has been taken into account, that would not affect the detaining authority's perception over the habitual activities committed by the detenu and especially causing nuisance to public order and, therefore, the detaining authority, has, only with application of mind, arrived at the subjective satisfaction to pass the detention order. The learned Additional Public Prosecutor would further contend that Section 5A of the Tamil Nadu Act 14 of 1982, was inserted with an intention that, if one or more of the grounds is vague the order of detention still can be good if anyone of the grounds is deemed to be valid. He adds that, such an order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are, vague, non-existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever. He would also submit that there may be several grounds, but if one of the grounds is made out for detaining a person as Goonda then that is sufficient for the detaining authority to pass the detention order. In support of his submission, the learned Additional Public Prosecutor relied on the following decisions:
(i) 1995 S.C.C. (Crl.) 176 U.Vijayalakshmi vs. State of Tamil Nadu.
(ii) 2004 (8) S.C.C. 780 State of Tamil Nadu and another
-vs- Kethiyan Perumal
(iii) 2012 (2) S.C.C. 389 G. Reddeiah vs. Government of Andhra Pradesh and another and
(iv) 2012 (4) S.C.C. 699 Subramanian vs. State of Tamil Nadu and another.
9. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and perused the material records and also the decisions relied on by them in respect of their rival contentions.
10. It is seen that the adverse cases relate to the occurrences that took place on 19.05.2009, 19.05.2009 and 20.11.2009 and the ground case came to be registered on 05.04.2013. The first two adverse cases were registered on 19.05.2009 in Crime Nos: 1048 and 1049 of 2009 of Pallappatty Police Station for the offences under Sections 147, 148, 341 I.P.C. and under Sections 3 (i) and 5 of T.N.P.P.D. Act 1992. The third adverse case was registered on 20.11.2009 in Salem Town Police Station Crime No: 1800 of 2009 for the offences under Sections 143, 341 and 188 I.P.C. and under Section 7 (1) (a) of C.L.A. Act. The occurrence alleged in the ground case has taken place on 05.04.2013 at 10.30 hours at Veeranam Police Station Crime No: 168 of 2013, after a period of three years from the date of registration of adverse cases. Verification of the above details would show that the detenu had been involving himself in various activities. However, there is no material to show that the incident alleged had an affect on the public order or public peace. Learned counsel for the petitioner has consistently pleaded before this Court that the detenu is a practicing advocate and has filed several public interest litigations and has secured 40,000 sq. ft. of land meant for the poor people by filing a writ petition in W.P. No: 15156 of 2008 and such activities of the advocate are appreciated by many prominent personalities, but the respondent took note of certain events viz. the detenu's involvement in matters relating to the poor and downtroden, and therefore, such an attempt to detain him as a "Goonda" was initiated. He has also stated that the detenu has not acted contrary to the provisions envisaged under Section 2 (f) of the TN Act 14 of 1982 which inter alia defines the term "Goonda" as 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 offence [punishable under Section 153 or Sectio 153-A under Chapter VII or under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, 1860.
11. Section 2 (1) (a) (iii) of the Tamil Nadu Act 14, 1982 makes it clear that "Goonda" is a person, who is engaged or is making preparation for engaging, in any of his activities as a goonda, which affect adversely, or are likely to affect adversely, the maintenance of public order.
12. Section 5-A of the Act contemplates how the grounds of detention can be severable. It reads thus, " 5-A. Grounds of detention severable - Where a person has been detained in pursuance of an order of detention [whether made before or after the commencement of the National Security (Second Amendment) Act, 1984] under Section 3 which has bee made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly ;-
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are, -
(i) vague (ii) non-existent (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever,
and it is not, therefore, possible to hold that the Government or Officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention. "
But Section 5-A was introduced with an object to take care of such a situation for an extraneous consideration or irrelevant ground. Though it does not affect the validity of the detention order, the fact remains that such an order is made against the settled principles of law, viz. a stale case has been taken into consideration. A verification of paragraph 4 of the detention order would reveal that the detaining authority has taken into consideration all the adverse cases as well as the ground case for arriving at the subjective satisfaction and the reasoning arisen thereof for consideration both in the adverse cases and the ground case when they are not severable and, therefore, the detaining authority with total non application of mind has passed the impugned detention order. We have also seen the adverse cases said to have taken place on 19.05.2009 ( 2 cases) and the last adverse case registered on 19.11.2009. The particulars available in the grounds of detention would only go to show that the alleged incident, which is the basis for the registration of the ground case, would only adversely affect the public order or public tranquility.
13. Though the learned counsel for the petitioner and the learned Additional Public Prosecutor relied on several decisions in support of their respective claim, in view of the factual details referred to above, we are not inclined to place reliance on those decisions.
14. On consideration of the principles and ratio laid down by the Supreme Court and this Court in various decisions and considering the facts discussed above, we are of the considered opinion that the impugned order of detention passed against the detenu is on stale ground and with total non application of mind and, hence, it cannot be sustained. Accordingly, the impugned detention order passed by the 2nd respondent, detaining the detenu, namely Haribabu, S/o. Govindaraj, made in C.M.P. No: 6/GOONDA/C2/2013 dated 14.04.2013, is quashed and the habeas corpus petition is allowed. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. The Miscellaneous Petition is closed.
15. Before parting with this case, we would like to observe that the standard and value of the institution of Judiciary primarily and basically depend upon the conduct of the Advocates who practice law in Courts. A person like that of the detenu herein, practising law, has an obligation to maintain probity and standard of professional ethics. Advocates are governed by the Advocates Act and the Bar Council of India Regulations and they are the persons practising law with high morality. Therefore, this institution expects the detenu who is an Advocate, while doing any public activity, to bear in mind such an obligation and upkeep the commitments and obligations in all his endeavours, with discipline and as a law abiding citizen.
gp To
1. The State of Tamil Nadu Rep. by its Secretary Department of Home, Prohibition & Excise Fort St. George Chennai 600 009.
2. The District Collector and District Magistrate Salem District Salem.
3. The Public Prosecutor High Court Madras