Madras High Court
K.Bala vs The State Of Tamil Nadu on 15 June, 2012
Author: S.Rajeswaran
Bench: S.Rajeswaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/06/2012 CORAM THE HONOURABLE MR.JUSTICE.S.RAJESWARAN AND THE HONOURABLE MR.JUSTICE.M.VIJAYARAGHAVAN H.C.P.(MD)No.313 of 2012 K.Bala ... Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009. 2.The Commissioner of Police, Tirunelveli City. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, praying to call for the entire records related to petitioner's husband's detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 16.02.2012 on the file of the Second Respondent herein made in proceeding No.13/BDFGISSV/2012, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband E.Kombaiah, S/o.Esakki Thevar before this Hon'ble High Court and set him at liberty from detention, who is now detaining at Central Prison, Palayamkottai. !For Petitioner ... Mr.N.R.Elango Senior Counsel for Mr.S.Ravi ^For Respondents... Mr.C.Ramesh Additional Public Prosecutor ***** :ORDER
[Order of the Court was made by S.RAJESWARAN,J.] This Habeas Corpus petition has been filed by the wife of the detenu E.Kombaiah, challenging the order of detention dated 16.02.2012 passed by the second respondent under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding the petitioner's husband as a 'Goonda' and directing him to be detained at Central Prison, Palayamkottai.
2. Though many grounds have been raised by the petitioner to assail the order of detention in this petition, the learned Senior Counsel appearing for the petitioner would confine his arguments only to the salient point that no order of detention can be passed based on the ground case alone branding a person as 'Goonda'. He adds that a single act cannot be characterized as habitual act and the same would not attract the provisions of Section 2(f) of the Act 14 of 1982 to brand a person as goonda. His specific contention is that one single case against an individual may not have the propensity of affecting the maintenance of public order and he cannot be detained under Section 3 of the Act. In support of his contention, he refers to a Full Bench Judgment of this Court reported in 2011(4) CTC 353 (Arumugam v. State of Tamil Nadu (FB)). Thus, his specific case is the order of detention dated 16.02.2012 stands vitiated and liable to be set aside.
3. Per contra, the learned Additional Public Prosecutor while reiterating the averments made in the counter affidavit filed on behalf of the second respondent would submit that the detenu being a history sheeted rowdy element, after having coming out on bail has committed the gruesome murder along with his associates on 20.01.2012, thereby created panic and fear among the public. Therefore, to prevent him from acting in a manner prejudicial to the maintenance of public order in future, the order of detention was passed against him. Therefore, he adds that the order of detention is in order and the same need not be interfered with by this Court.
4. We have heard the rival submissions carefully with regard to the facts and citation.
5. Admittedly, the detention order dated 16.02.2012, has been passed based only on the ground case, namely, Pettai Police station Crime No.38 of 2012 under Section 294(b), 302, 506(ii) I.P.C. Excepting this case, no other case has been referred to in the detention order. Under Section 2(f) of the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982, the term 'Goonda' has been defined as follows:
"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 Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, 1860 (Central Act XLV of 1860);"
A reading of the above provisions would make it clear that a person who is to be branded as 'Goonda' 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, 1860. Therefore, a single case is not sufficient and it requires more than one case involving offences falling within the Chapters as enumerated in Section 2(f) of the Act.
6. In this case, the detenu along with his associates severed the deceased head with the Aruval and went through the street along with the deceased head. This solitary incident is, admittedly the basis for passing the order of detention.
7. The point for consideration is whether this solitary incident could be sufficient to brand an individual as Goonda?
8. Before adverting to answer this, we would like to cull out the legal principles set out in the judgment reported In 2011(4) CTC 353 (FB) (cited supra), wherein the Full Bench of this Court has held as follows:
"6.2. Section 2 of the Act defines the term "Goonda" as follows:
"Section 2. Definitions - (1) In this Act, unless the context otherwise requires
(a) to (ee) ...
(f) "goonda" means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commits or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, 1860. ..."
7. A reading of the above two provisions make it crystal clear that in order to detain a person under the Act, the Detaining Authority has to satisfy about two conditions, namely, firstly, the materials available on record should establish that the individual could be branded as a Goonda and secondly, after branding a person as a Goonda, the Detaining Authority further should be satisfied that the acts or anyone of the act of the said person are/is prejudicial to the maintenance of public order. If a such subjective satisfaction is arrived at by the Detaining Authority, then the Detaining Authority will be justified to pass an order of detention with a view to prevent such an individual from acting in any manner prejudicial to the maintenance of public order.
8. Now coming to the question as to how a person is liable to be branded as a Goonda, the definition of the Goonda under Section 2(f) of the Act would make it abundantly clear that "Goonda" is a person, who either by himself or as a member of or leader of gang, habitually commits, or attempts to commits or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, 1860.
...
13. In view of the authoritative pronouncements of the Hon'ble Apex court in the decisions cited supra, we have no hesitation to hold that for characterizing a person as Goonda, it is absolutely necessary that the said persons has been implicated in more than one case involving the offences punishable under Chapters XVI or XVII or XXII of the Indian Penal Code.
14. At this juncture, it is also made clear that if a person has been implicated in one solitary case, by no stretch of imagination, he could be branded as a Goonda as such solitary incident would not attract the provision under Section 2(f) of the Act. Consequently, a single case cannot be the basis to pass the detention order by invoking the provision under Section 3 of the Act to prevent such person from acting in any manner prejudicial to the maintenance of public order. To put it otherwise, in a given case if there is one single case against an individual which may or may not have the propensity of affecting the maintenance of public order, he cannot be detained under Section 3 of the Act, because he will not fall within the scope of the definition of Goonda as defined in Section 2(f) of the Act.
...
26. In view of the foregoing discussions, we answer the question referred to us in the following manner:
(i) To brand a person as Goonda as defined under Section 2(f) of the Act, is is absolutely necessary that there are to be more than one case involving offences punishable under the Chapters of the Indian Penal Code as enumerated in Section 2(f) of the Act.
(ii) To detain a Goonda, it is not necessary that there are to be more than one case which has got the propensity of disturbing the maintenance of public order.
Out of all the cases against him even if a single incident resulting in a single case has the propensity of affecting the even tempo of life and public tranquillity being prejudicial to the maintenance of public order that by itself would be sufficient to pass a valid order of detention. There cannot be any strait jacket formula or universal rule in respect of number of cases because the necessity for passing a detention order depends upon the facts and circumstances of each case. "
8. In the above judgment, the Full Bench of this Court on a reference to declare the law as to whether a solitary instance is sufficient to detain a person, who has been branded as Gooda as per the provisions of Section 3 of the Act. In answering the question referred, the Full Bench of this Court held as above.
9. As per the above judgment, there are to be more than one case involving offences punishable under the Chapter of the Indian Penal Code as enumerated in Section 2(f) of the Act and in the case of single incident being considered, that single case has to have the propensity of affecting the even tempo and public tranquillity being prejudicial to the maintenance of public order to pass an order of detention.
10. Applying this proposition laid down by the above Full Bench to the case in hand, it satisfies the first ground that excepting the single case in Crime No.38 of 2012 under Sections 294(b), 302, 506(ii) I.P.C., there is no other case filed/pending against the detenu. Regarding the applicability of the second ground, and the propensity of the single act affecting even tempo of life and public tranquillity being prejudicial to the maintenance of public order, we have to hold that this solitary case of the detenu herein does not have the propensity of affecting the public order. An act may be gruesome, but whether it warrants of a preventive detention when the common law of the land is sufficient to deal with the situation is to be considered.
11. The order of detention passed is a preventive one not punitive. The substance of detention order of one year is a punishment of one year's imprisonment. In this connection, we would like to refer to the judgment of a Larger Bench of the Hon'ble Supreme court reported in (2011) 3 MLJ (Crl) 422 (SC) (Rekha v. State of T.N.), wherein it is stated as follows:
"26. Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It follows, therefore, that if the ordinary law of the land (Indian Penal Code and other penal statues) can deal with a situation, recourse to a preventive detention law will be illegal.
27. Whenever an order under a preventive detention law is challenged one of the questions the Court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."
12. Applying the proposition laid down in the above Larger Bench case, recourse to preventive detention law when ordinary law of land can deal with a situation, renders the detention illegal. Further, the reported single act in this case, does not have the propensity of affecting the even tempo of life and public tranquillity being prejudicial to the maintenance of public order. In fact, it is a case of settling the score on a personal vendata, the detenu has murdered the deceased and the said solitary incident could very well be dealt with in the normal course. This referred single incident relates to smaller circle only. Further, the solitary incident would not manifest the potentialities of a detenu in such activities. There is no conclusion that this incident would give rise to communal tension and apprehension of outbreak of list affecting public order. It is an act confined to only to a few individual directly involved as distinct from a wide spectrum of the public and it could cause problem of law and order only. It is a trite law that it is the length, magnitude and intensity of the terror unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting 'public order' from that concerning 'law and order'. In a recent judgment of the Hon'ble Supreme Court, reported in (2012) 2 SCC 176 (Yumman Ongbi Lembi Leima v. State of Manipur), a Larger Bench has held as follows:
"27. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention."
13. Therefore, applying the above settled principles, we are of the considered view that the ordinary law of the land ie., the Indian Penal Code can very well deal with the situations and the order of preventive detention passed against the detenu herein would take away the right to liberty guaranteed by Article 21 of the Constitution of India. As held by the Larger Bench of the Hon'ble Supreme Court (2011) 3 MLJ (Crl) 422 (SC) (cited supra) preventive detention is only an exception and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution of India. Fundamental rights are meant for protecting the civil liberties of the people and not to put them in jail for a long period without recourse to a lawyer and without a trial.
14. Therefore, we hold that considering the propensity of the act reported, it can never be classified as one coming under public order. At best it would come under the category of law and order.
15. In the light of the above fact and law, the detention order dated 16.02.2012 is against the detenu is not warranted and hence it is illegal and liable to be set aside.
16. Accordingly, this Habeas Corpus petition is allowed and the impugned order of detention dated 16.02.2012 passed by the second respondent is quashed. The detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case.
sj To
1.The Secretary to Government, Home, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai - 600 009.
2.The Commissioner of Police, Tirunelveli City.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.