Main Search Premium Members Advanced Search Disclaimer
Cites 45 docs - [View All]
The Tamil Nadu Legislative Council (Abolition) Act, 1986.
Section 2 in The Tamil Nadu Legislative Council (Abolition) Act, 1986.
Article 22(5) in The Constitution Of India 1949
The Indian Penal Code
Section 3(1) in The Tamil Nadu Legislative Council (Abolition) Act, 1986.
Citedby 6 docs - [View All]
M.Shagunthala Devi vs The Secretary To Government on 18 August, 2013
N.Indirani vs The Secretary To Government on 18 August, 2013
P.Ramasamy 25/14 vs The Secretary To Government on 18 August, 2013
P.Ramasamy 25/14 vs The Secretary To Government on 18 August, 2013
Ravichandran vs ) The State Of Tamil Nadu on 1 August, 2014

User Queries

Application to MA in Law, Politics and Society in Ambedkar University, Delhi is open till 24 June. Apply here

Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Madras High Court
Leema Rose vs The District Magistrate And on 29 March, 2012
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  29.3.2012

C O R A M

THE HONOURABLE MR.JUSTICE K.MOHAN RAM
AND
THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI

H.C.P.No.1636  of 2011


Leema Rose                  		                      	..PETITIONER 
    
Vs

1    THE DISTRICT MAGISTRATE AND 
     DISTRICT COLLECTOR, COIMBATORE. 

2.   THE SECRETARY TO GOVERNMENT
     HOME, PROHIBITION & EXCISE DEPARTMENT, 
     SECRETARIAT, FORT ST. GEORGE  CHENNAI.			..Respondents



Prayer:  To issue a WRIT OF HABEAS CORPUS  calling for the records  relating to the order of detention in Ref. No.Cr.M.NO.07/G/2011/E1 detaining the detenu S.Martin, dated  29/10/2011 passed by the 1st   respondent and to quash the same and also to direct the detenue Martin AGED 49 YEARS  who is presently detained in the Central Prison, Coimbatore, to be produced before this Hon`ble court and set at liberty.  
    

			For petitioner  : M/s. B. Kumar, Senior Counsel 
					  for M/s.R. Srinivas 

			For Respondents : Mr.I. Subramaniam
					  Public Prosecutor




ORDER 

(ORDER OF THE COURT WAS MADE BY MR. JUSTICE K.MOHAN RAM,J) The petitioner in the above H.C.P. is the wife of the detenu, who has been detained as a Goonda under the Tamil Nadu Act 14 of 1982 by the impugned order of detention, dated 29.10.2011 passed by the first respondent.

2. The detenu came to the adverse notice of the first respondent in the following three adverse cases, namely, (1) Central Crime Branch, Salem City Crime No.38 of 2011, dated 12.8.2011 for the offences under Sections 120-B, r/w 147, 148, 427, 307, 506(ii), 409, 420 I.P.C., 3(1) of Tamil Nadu Properties (Prevention of Damage and loss Act 1994), (2) Central Crime Branch Tiruppur Crime No.01/2011, dated 28.1.2011 for the offences under Sections 406, 418, 467, 468 and 471 I.P.C. and (3) City Crime Branch Coimbatore City Cr.No.108/2011 dated 22.9.2011 for the offences under Sections 420 & 506(ii) I.P.C.

3. The detenu also came to the adverse notice of the authorities in respect of various acts said to have been committed by the detenu and in respect of a complaint, dated 5.9.2011 lodged by one Thiru. Narahari Setty, s/o. Achanna Setty, M/s. Akshaya Textiles Ltd., Ganapathy Post, Coimbatore-6 before the District Crime Branch, Coimbatore.

4. In paragraph 3(ii) of the grounds of detention, the gist of the complaint of the said Narahari Setty has been stated, which reads as under:-

(ii) In that complaint Thiru. Narahari Setty has stated that he has owned a mill by name Akshaya Textiles which was functioning in loss; that Thiru. Narahari Setty has approached Thiru. Martin for financial loan; that after perusing all documents Thiru. Martin has decided to give loan by pledging shares and documents of the company; that Memorandum of Understanding dated 14.11.2005 and an agreement dated 19.11.2005 have been prepared by Thiru. Martin and they were signed and executed, that due to hike in price of lands Thiru. Martin has inserted Rs.44.11 per equity share in the MOU,. The original was kept with Thiru. Martin and created fake agreement with a view to obtain illegal gain and to create loss to complainant and his mill and thereby to grab Rs.125 crores of properties; similarly in the agreement of sale dated 19.11.2005 were in the consideration was left blank at the time of execution, Thiru. Martin filled up the figure as 15 crores with the intention to cheat the complainant by forgery; that the complainant as the chairman of Akshaya Textiles has given some documents and blank documents to Thiru. Martin in order to obtain loan from him and to save his mill from loss; but with the intention of grabbing the mill and lands worth Rs.125 crores Thiru. Martin and his associates have given disturbance to the complainant; that on 4.7.2011 at about 12.30 hours the complainant was at his office and on the instigation of Thiru. Martin, one Thiru. Durai a Retired Police Officer, Mr. Kiran Kumar and his uncle Mr. Anjaneyelu have trespassed into his office, criminally intimidated him to sign in some important documents with anti-date and to hand over the possession of the properties; that father on 11.7.2011 at 11.00 hours at Sathi to Coimbatore road, near Kurumbapalayam privu when the complainant was proceeding in his car, the said Mr.Martin, Mr.Durai, Mr. Kiran Kumar, Charles and Benjamin have waylaid him with deadly weapons and kidnapped him to Akshaya Textiles, threatened him to sign necessary documents; that they have torn the documents in the office, damaged the window glasses, computers and attempt to murder him with a view to grab his properties.

5. In paragraph 4(i) of the grounds of detention, the detaining authority has arrived at the subjective satisfaction as follows: -

4(i) On the materials placed before me, I am satisfied that Thiru. S.Martin aged  49, S/o. Santiago, residing at Door No.135, Thiruvalluvar Street, Vellakinar Privu, G.N.Mills (P.O.), Coimbatore North Taluk, Coimbatore District, 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 Tamil Nadu Act 14/1982 by committing the above said offence. Thiru. S.Martin creates panic and a feeling of insecurity in the minds of people of that area and thereby acted in a manner prejudicial to the maintenance of Public Order.

6. Considering the materials placed before the detaining authority and considering the various acts committed by the detenu, the detaining authority has come to his subjective satisfaction that the detenu should be detained under Tamil Nadu Act 14 of 1982 and accordingly, passed the order of detention.

7. Challenging the same, the above H.C.P. has been filed.

8. Heard both.

9. Mr.B. Kumar, the learned Senior Counsel appearing for the learned counsel M/s. R. Srinivas, learned counsel for the petitioner, made the following submissions:-

A. The documents enclosed by the detenu with his representation dated 25.10.11 have undoubtedly bearing on the validity of the complaint made by the said Narahari Setty and the registration of the case pursuant to it.

a. The detaining authority ought to have considered the same on his own and failure to consider and take the same into account before making the order of detention has vitiated his subjective satisfaction. If the detaining authority had perused and considered the documents and the failure to supply the same to the detenu would amount to violation of Article 22(5) of the Constitution of India.

b. The learned Senior Counsel submitted that the documents relied upon in the grounds of detention by the detaining authority have not been furnished to the detenu with the grounds of detention. The learned Senior Counsel submitted that in the grounds of detention, the detaining authority has heavily relied upon the insertions or interpolations made in the Memorandum of Understanding dated 14.11.2005 and the agreement dated 19.11.2005 between the detenu and M/s. Akshaya Textiles Ltd., which are as follows:-

that Memorandum of Understanding dated 14.11.2005 and an agreement dated 19.11.2005 have been prepared by Thiru. Martin and they were signed and executed; that due to hike in price of lands Thiru. Martin has inserted Rs.44.11 per equity share in the MOU,. The original was kept with Thiru. Martin and created fake agreement with a view to obtain illegal gain and to create loss to complainant and his mill and thereby to grab Rs.125 crores of properties; similarly in the agreement of sale dated 19.11.2005 were in the consideration was left blank at the time of execution, Thiru. Martin filled up the figure as 15 crores with the intention to cheat the complainant by forgery;

c. The learned Senior Counsel submitted that the aforesaid alleged insertions said to have been made by the detenu amounts to forgery and in Cr.No.27 of 2011, a case has been registered for the offences under Sections 467 and 468 I.P.C. in respect of the aforesaid insertions. Therefore, according to the learned Senior Counsel, the detaining authority has heavily relied upon the MOU dated 14.11.2005 and the agreement dated 19.11.2005. But the said documents, which are relied upon documents, have not been furnished to the detenu along with the grounds of detention and therefore, it amounts to violation of Article 22(5) of the Constitution of India.

d. The learned Senior Counsel further submitted that the detenu sent a representation dated 8.10.2011 to the detaining authority bringing to his notice various facts and circumstances of the case and the cases, which have been registered against him falsely and requested him not to detain him under the Goondas Act. The said representation was rejected by the detaining authority on 21.10.2011. In the rejection order, the detaining authority had stated that the detenu has mentioned enormous documents like MOU, sale deeds, shares and other documents relating to M/s. Akshaya Textiles, but he has not enclosed any document, in support of his representation and therefore, the detenu again sent a rejoinder representation dated 25.10.2011 along with the documentary evidence. Along with the rejoinder representation, he had enclosed about eight documents relating to Cr.No.108 of 2011 and 31 documents relating to Cr.No.27 of 2011 on the file of the District Crime Branch, Coimbatore. The rejoinder representation has been referred to in the grounds of detention by the detaining authority by stating as follows:-

Again Thiru. Martin presented a petition before Collector enclosing the documents in support of his claim. The documents were perused. The document does not exonerate the petitioner from the offences levelled against him. e. The learned Senior Counsel submitted that the aforesaid statement of the detaining authority in the grounds of detention clearly shows that the documents enclosed with the rejoinder representation of the detenu, dated 25.10.2011 had been perused by the detaining authority and they have been considered and thereafter, the representation had been rejected by his rejection order, dated 28.10.2011. When admittedly, the detaining authority has perused the documents enclosed with the rejoinder representation, dated 25.10.2011, such documents should have been enclosed with the grounds of detention and furnished to the detenu. Admittedly, those documents were not enclosed and furnished to the detenu with the grounds of detention and therefore, the order of detention cannot be sustained.

f. In support of his contention, the learned Senior Counsel based reliance on the following decisions:-

a. AIR 1982 SC 1500 (1) (Ibrahim Ahmad Batti vs. State of Gujarat and others).

b. AIR 1980 SC 1983 (Smt. Icchu Devi Choraria vs. Union of India and others).

c. (2009) 1 MLJ (Crl.) 54 (SC) (Union of India v. Ranu Bhandari) d. AIR 1987 SC 1192 (Mrs. Tsering Dolkar vs. The Administrator, Union Territory of Delhi and others).

B. The second contention of the learned Senior Counsel is as follows:-

a. The order of detention was passed on 29.10.2011. On 31.10.2011 a representation was sent by the wife of the detenu to the detaining authority. On 9.11.2011 the said representation was rejected. On 1.11.11 itself, the second respondent had approved the order of detention. On 7.12.2011 the meeting to the Advisory Board was held and its report was sent. On 22.12.2011, the second respondent Government confirmed the order of detention.

b. The learned Senior Counsel submitted that the representation of the petitioner dated 31.10.2011 was not placed before the Advisory Board and it has also not been considered by the Government at the time of confirming the order of detention. Therefore, according to the learned Senior Counsel, the order of detention cannot be sustained any further.

c. The learned Senior Counsel by referring to the order of confirmation dated 22.12.2011 submitted that in the order of confirmation, though it is stated that the representation dated 12.11.2011 of the petitioner and the detenu's representation, dated 7.12.2011 have been placed before the Advisory Board, it has not been stated that the representation, dated 31.10.2011 of the petitioner was placed before the Advisory Board. Further, it is not stated in the confirmation order that the representation, dated 31.10.2011 was considered by the Government. Therefore, the order of detention cannot be sustained.

d. In support of the said contentions, the learned counsel based reliance on the following decisions:-

a. 1984 CRI. L. J. 68 (Vellanai Pandian vs. Collector and District Magistrate of Tirunelveli District and another).

b. 1989 CRI.L.J. 637 (K.V. Jesudasan vs. State of T.N. And another) c. CDJ 2003 MHC 831 (Viji @ Vijayan @ Vijayakumar vs. The Commissioner of Police and another).

C. The learned Senior Counsel submitted that the ground case, namely, Cr.No.27 of 2011 on the file of the District Crime Branch, Coimbatore was registered on the basis of the occurrence said to have taken place on 11.7.2011. Even according to the grounds of detention, the occurrence took place inside the room in the mill where only four accused including the detenu alone were present. Since the occurrence had not taken place in a public place or witnessed by any public and the complainant was not injured, it does not give rise to any problem of public order.

a. According to the learned Senior Counsel , the very sequence of the occurrence cannot and has not given rise to any problem of public order. There is no averment in the grounds of detention that the said incident occurred on 11.7.11 inside the mill disturbed the public peace. It is not averred in the grounds that there was disturbance of public order and no material whatsoever has been annexed to the grounds of detention to show that the occurrence said to have taken place on 11.7.11 disturbed the public peace. Therefore, according to the learned Senior Counsel the ground case, namely, Cr.No.27 of 2011 cannot form the basis for passing the order of detention detaining the detenu. The learned Senior Counsel submitted that admittedly, at the time of occurrence on 11.7.2011 inside the mill premises except the accused, the complainant, his driver and his manager, nobodyelse was present. No statement under Section 161 Cr.P.C. had been recorded from any member of the public to the effect that the public were terrorised. No material is found in the grounds of detention to show that the even tempo of the society was affected. The very occurrence that has taken place inside the premises of the mill was not known to the public and therefore, the subjective satisfaction arrived at by the detaining authority that the detenu has created a panic and a feeling of insecurity in the minds of people of that area and thereby acted in a manner prejudicial to the maintenance of public order is vitiated.

b. In support of the said contention, the learned Senior Counsel based reliance on the following decisions:-

i. CDJ 2008 SC 1445 = 2008 9 SCC 89 ii. (2007) 2 MLJ (Crl.) 1528 (Suguna vs. State of Tamil Nadu represented by its Secretary to Government, Prohibition and Excise Department, Chennai and another).

D. The learned Senior Counsel submitted that there is a delay in considering the post detention representation sent by the petitioner. The representation dated 3.11.2011 had been received as per the postal acknowledgement on 4.11.2011. But the same had been rejected only on 5.12.2011. The learned Senior Counsel submitted that from the details furnished by the learned Public Prosecutor relating to the movement of the file relating to the consideration of the post detention representation shows that the Note for circulation was prepared on 24.11.2011 and the Minister for Electricity and Prohibition and Excise approved the file on 27.11.2011 and the file was received back in the Section on 5.12.2011 and on the same day the rejection letter had been prepared and the rejection letter was despatched on 7.12.2011. The contention is that though the Minister had affixed his signature in the file on 27.11.2011, a formal order was made ready only on 5.12.2011 and it has been despatched only on 7.12.2011 and hence, there is delay between 27.11.2011 and 7.12.2011. Unless the order of rejection is communicated to the detenu it cannot be said that the order has been passed without delay. The contention was also put forth that though the Minister has put his signature on 27.11.2011 till 5.12.2011, a formal order in the name of the Governor as contemplated under Article 166 of the Constitution of India had not been issued and hence at any time the Minister could change the order and therefore, the date of order can be taken only as 5.12.2011. a. In support of his contention, the learned Senior Counsel based reliance on several decisions.

b. In response, the learned Public Prosecutor submitted that once the Minister approves the note file rejecting the representation, immediately a formal order was made ready on 5.12.2011 and the same was communicated on 7.12.2011 and it, therefore, will not vitiate the order of detention.

10. Countering the other aforesaid submissions, the learned Public Prosecutor has made the following submissions:-

11. The learned Public Prosecutor submitted that the purpose of supplying the documents relied upon by the detaining authority in the grounds of detention is to enable the detenu to make an effective representation. All the documents relied on by the detaining authority were available with the detenu and it is not pleaded that because of non supply of the documents any prejudice has been caused to him and he was prevented from making an effective representation either to the detaining authority or to the Government.

12. The learned Public Prosecutor further submitted that both in the pre detention and post detention representations, the documents relied upon by the detaining authority have been referred to and therefore, no prejudice has been caused to the detenu by the non furnishing of the relied upon documents. In support of his contention, the learned Public Prosecutor relied upon the decision of the Apex Court reported in AIR 1981 SC 1191.

13. As far as the second contention of the petitioner that the representation, dated 31.10.2011 was not placed before the Advisory Board and the same was also not considered by the Government before the order of confirmation is concerned, the learned Public Prosecutor submitted that in the order of confirmation, dated 22.12.2011, it is stated as follows:-

",J bjhlh;ghd Mtz';fs; kw;Wk;"

14. The learned Public Prosecutor further submitted that though the representation dated 31.10.2011 has not been specifically mentioned therein, the aforesaid words, namely, ",J bjhlh;ghd Mtz';fs;" would indicate that the representation dated 31.10.2011 was also placed before the Advisory Board and it has also been considered by the Government.

15. It is further contended by the learned Public Prosecutor that when the representations dated 3.11.2011, 12.11.2011 and 7.12.2011 have been placed before the Advisory Board and have also been considered by the Government and only thereafter, the order of confirmation had been passed, it cannot be said that any prejudice has been caused to the detenu.

16. As far as the third contention of the petitioner that the ground case or the other cases referred to and relied upon by the detaining authority have not affected the public order, but these cases, if at all, would only create a law and order problem is concerned, the learned Public Prosecutor submitted the following submissions:-

17. The materials taken into consideration by the detaining authority in all the cases have been referred to in the grounds of detention, which will show that this is a case of affecting the public order. The learned Public Prosecutor by referring to Section 161 Cr.P.C. statement of Narahari Setty and his driver submitted that besides the detenu, at the time of occurrence on 11.7.2011, the driver and the manager of Narahari Setty were present and therefore, even though the occurrence has taken place inside the mill premises, it took place in front of the public and therefore, it affected the public order.

18. The learned Public Prosecutor submitted that even though the occurrence had taken place inside the mill premises, since the detenu is involved in four cases and he is a habitual offender, the detaining authority has come to the conclusion that he is a Goonda as defined under the Act 14 of 1982 and it is sufficient to pass the order of detention.

19. In support of the said contention, the learned Public Prosecutor based reliance on the decision of the Division Bench of this Court reported in 1993 L.W. (Crl.) 113 (Subbaiah @ Thiruvotiyur Subbaiyah @ Mahadevan vs. The Commissioner of Police, Madras City, Madras and another) and the decision of the Apex Court rendered in Crl.A.No.417 of 2012 (Subramanian vs. State of Tamil Nadu and another). The learned Public Prosecutor also based reliance on the decision of the Apex Court reported in 1970 SCC (Crl.) 67 (Arun Ghosh vs. State of West Bengal).

20. We have considered the aforesaid submissions and perused the materials available on record.

21. The first contention of Mr.B.Kumar, learned Senior Counsel for the petitioner is that the non furnishing of the relied upon documents along with the grounds of detention within five days from the date of service of detention order will vitiate the order of detention. According to the learned Senior Counsel, the Memorandum of Understanding, dated 14.11.2005 and the agreement, dated 19.11.2005 have been heavily relied upon by the detaining authority and the detaining authority has considered the same for coming to the conclusion that the detenu has inserted Rs.44.11 per equity share in the MOU and filled up the figure as Rs.15 crores at the blank left in the sale agreement with an intention to cheat the complainant by forgery. For coming to the conclusion that the detenu forged the MOU, dated 14.11.2005 and the agreement, dated 19.11.2005, the detaining authority has relied upon those documents. Therefore, there cannot be any dispute that these two documents are relied upon documents. Further in paragraph 4(iii) of the grounds of detention, the detaining has stated as follows:-

"Again Thiru. Martin presented a petition before Collector enclosing the documents in support of his claim. The documents were perused. The document does not exonerate the petitioner from the offences levelled against him."

22. Therefore, as rightly contended by the learned Senior Counsel, all the documents enclosed with the rejoinder representation, dated 25.10.2011 , namely, eight documents relating to Cr.No.108 of 2011 on the file of the City Crime Branch, Coimbatore and 31 documents relating to Cr.No.27 of 2011 on the file of the District Crime Branch, Coimbatore had been perused by the detaining authority and has come to the conclusion that the documents do not exonerate the petitioner from the offences levelled against him. Therefore, these documents which have been perused by the detaining authority also assumes the character of relied upon documents.

23. The question is whether such documents should be furnished to the detenu along with the grounds of detention within five days from the date of service of the order of detention.

24. The contention of the learned Public Prosecutor is that unless it is pleaded and proved that the non furnishing of the relied upon documents or the documents perused by the detaining authority has prejudiced the detenu and prevented him from making an effective representation, the non furnishing of these documents will not vitiate the order of detention.

		25. Further,  it is contended  by the learned Public Prosecutor   that all the documents   were available with the   detenu and therefore,  no prejudice   has been caused to the detenu and  in fact    in the pre and post detention representations, the detenu  has referred to  the said documents  and hence, no prejudice  has been caused to him.  
		26. In paragraph  10  of the decision reported in  AIR  1982  SC 1500 (1) (Ibrahim Ahmad  Batti  vs. State of Gujarat  and others),  the Apex Court has laid down as  follows:-

10. Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases, (a) all documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than five days ordinarily and in the exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Art. 22(5) of the Constitution.

27. In paragraph 11 of the same decision, it has been laid down as follows:-

Preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and therefore in preventive detention jurisprudence whatever little safeguards the Constitution and the enactment authorising such detention provide assume utmost importance and must be strictly adhered to and one of such safeguards is that unless exceptional circumstances really obtain the delay in supply of grounds of detention as also the documents and statements incorporated therein by reference beyond the normal period of five days would be fatal.

28. Ultimately, the Apex Court held that the failure to supply the documents and statements incorporated in the grounds of detention within a period of five days would amount to breach of the safeguard contained in Article 22(5) of the Constitution of India r/w Section 3(3) of the COFEPOSA and vitiates the continued detention of the detenu.

29. In the decision reported in AIR 1980 SC 1983 (supra), the Hon'ble Apex Court considered the similar question in paragraph 7 and has laid down as follows: -

"It is clear from the discussion in the preceding paragraph that under clause (5) of Article 22 read with section 3, sub-section (3) of the COFEPOSA Act, the detaining authority was bound to supply copies of the documents, statements and other materials relied upon in the grounds of detention to the detenu within five days from the date of detention, that is, on or before 9th June, 1980 and in any event, even if we assume that there were exceptional circumstances and reasons for not supplying such copies within five days were recorded in writing, such copies should have been supplied to the detenu not later than fifteen days from the date of detention, that is, on or before 19th June, 1980. It was, of course, not the case of the detaining authority before us that reasons for not supplying copies of the documents, statements and other materials to the detenu within five days were recorded in writing nor were any such reasons produced before us, but even if there were any such reasons recorded in writing, coupled with the existence of exceptional circumstances, the detaining authority, could not delay the supply of copies of the documents, statements and other materials to the detenu beyond 19th June, 1980."

30. In the decision reported in 2009(1) MLJ (Crl) 54 (SC) (Union of India vs. Ranu Bhandari) one of the questions that came up for consideration before the Apex Court was whether the non supply of the documents irrespective of whether they had originated from the detenu himself, had prevented the detenu from making an effective representation against the detention order, since without having the documents in front of him, it was not possible for the detenu to remember the contents of the said documents in their entirety, which contained in detail the stand of the detenu and whether by depriving the detenu of the said documents he was deprived of the right guaranteed to him under Article 22(5) of the Constitution which was mandatory and any breach thereof had been held by the Apex Court to be sufficient to vitiate the detention order.

31. While considering the said question, the Apex Court considered the decision reported in (1990) 2 SCC 1 (M. Ahamedkutty v. Union of India), where in it was held as follows:-

"It was also observed that it was immaterial whether the detenu already knew about their contents or not, but the non-supply of the copies thereof was fatal as was held in Mehrunissa v. State of Maharashtra AIR 1981 SC 1861 : (1981) 2 SCC 709. It was emphasised that in order to appreciate this point it would have to be kept in mind that the detenu is in jail and has not access even to his own documents."

32. In the very same decision, the Apex Court has held in paragraphs 25, 29 and 30 as follows:-

25. We have indicated hereinbefore that the consistent view expressed by this Court in matters relating to preventive detention is that while issuing an order of detention, the Detaining Authority must be provided with all the materials available against the individual concerned, both against him and in his favour, to enable it to reach a just conclusion that the detention of such individual is necessary in the interest of the State and the general public. It has also been the consistent view that when a detention order is passed all the material relied upon by the Detaining Authority in making such an order, must be supplied to the detenu to enable him to make an effective representation against the detention order in compliance with Article 22(5) of the Constitution, irrespective of whether he had knowledge of the same or not. These have been recognised by this Court as the minimum safeguards to ensure that preventive detention laws, which are an evil necessity, do not become instruments of oppression in the hands of the concerned authorities or to avoid criminal proceedings which would entail a proper investigation. 29. We are inclined to agree with the submissions made on behalf of the respondent that, notwithstanding the nature of the allegations made, he was entitled to the assurance that at the time when the detention order was passed all the materials, both for and against him, had been placed for the consideration of the Detaining Authority and had been considered by it before the detention order was passed, having particular regard to the orders passed by the Settlement Commission appointed under the provisions of the Customs Act, 1962, which absolved the detenu from all criminal prosecution.

30. In the instant case, as some of the vital documents which have a direct bearing on the detention order, had not been placed before the Detaining Authority, there was sufficient ground for the detenu to question such omission. We are also of the view that on account of the non-supply of the documents mentioned hereinbefore, the detenu was prevented from making an effective representation against his detention.

33. In the decision reported in AIR 1987 SC 1192 (cited supra), the Apex Court, in paragraph 12, has laid down as follows:-

"12. The learned Additional Solicitor General relied upon the feature that the petitioner-wife knew both English and Tibetan languages and an effective representation as a fact had been made. There can be no two opinions that the requirement of law within the provisions of Article 22(5) of the Constitution is that the detenu has to be informed about the grounds of detention in a language which he understands.The fact that the detenu's wife knew the language in which the grounds were flamed does not satisfy the legal requirement. Reliance was placed by the learned Additional Solicitor General on a decision of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Ors., [1985] 3 SCR 679 in support of his contention that unless the detenu was able to establish prejudice on account of the fact that the grounds of detention and the documents accompanying the grounds were not in a language known to the detenu the order would not be vitiated. There is no clear indication of the test of prejudice being applied in that case. On the facts relevant before the Court, a conclusion was reached that the detenu was merely reigning ignorance of English and on the footing that he knew English, the matter was disposed of. We must make it clear that the law as laid down by this Court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order. (See AIR 1975 SC 1513, [1975] 2 SCR 832, AIR 1975 SC 245)."

34. In this case, as rightly contended by the learned Senior Counsel Mr.B.Kumar, the MOU, dated 14.11.2005 and the agreement dated 19.11.2005 have been heavily relied upon by the detaining authority in the grounds of detention. However, all the documents annexed to the rejoinder representation, dated 25.10.2011 of the detenu have admittedly been perused by the detaining authority as referred to above. Therefore, the said documents ought to have been furnished to the detenu within five days from the date of service of the detention order.

35. In this case, admittedly, the said documents have not been furnished to the detenu within 5 days from the date of execution of the detention order along with the grounds of detention. The MOU and the agreement which have been incorporated in the grounds of detention and which have been perused for arriving at the requisite subjective satisfaction should have been furnished to the detenu along with the grounds of detention and in any event not later than five days from the date of his detention as laid down in AIR 1982 SC 1500 (1). The non furnishing of the said documents within five days would be fatal. But, according to the learned Public Prosecutor, as all the documents referred to and relied upon and perused by the detaining authority in the grounds of detention originated from the detenu and such documents have been referred to in the representations sent by the detenu as well as the petitioner herein, there is no need or necessity to furnish the same to the detenu. It has not been pleaded that any prejudice was caused to the detenu by the non furnishing of the said documents and because of the non furnishing of the documents the detenu was prevented from making an effective representation and therefore, the non furnishing of the relied upon documents will not vitiate the order of detention cannot be countenanced in view of the decision of the Apex Court reported in AIR 1980 SC 1983 (supra). The burden of showing that the detention is in accordance with the procedure established by law has always been placed by the Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.

36. The Apex Court has further observed that it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition.

37. In paragraphs 4 and 5, the Apex Court has observed as follows:-

4. It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention. 5. This practice marks a departure from that obtaining in England where observance of the strict rules of pleading is insisted upon even in case of an application for a writ of habeas corpus, but it has been adopted by this Court in view of the peculiar socio-economic conditions prevailing in the country. Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition. The burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law. This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law. This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred. The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.

38. Having observed as above, while considering the question whether the non furnishing of the relied upon documents within five days from the date of detention, will vitiate the order of detention, the Apex Court has held that the failure to furnish the relied upon document within five days from the date of detention will vitiate the order of detention and ultimately, the Apex Court set aside the order of detention. Therefore, the contention of the learned Public Prosecutor that since it has not been pleaded by the detenu that the non furnishing of the relied upon documents prejudiced his right to make an effective representation, the non furnishing of the relied upon documents will not vitiate the order of detention cannot be countenanced.

39. It was contended by the learned Public Prosecutor that as the documents which have been relied upon by the detaining authority and which have not been supplied to the detenu with the grounds of detention had originated from the detenu himself, the non furnishing of the same will not in any way prejudice the detenu from making an effective representation against the order of detention cannot be countenanced. Since similar contention put forth by the detaining authority before the Apex Court in the decision reported in (2009) 1 MLJ (Crl.) 54 (SC) had been rejected. While rejecting the said contention, the Apex Court has relied upon the decision reported in (1990) 2 SCC 1 and AIR 1981 SC 1861 (supra), wherein it has been laid down that it was immaterial whether the detenu already knew about their contents or not, but the non supply of the copies thereof was fatal. Further, the Apex Court has emphasised the fact that it should be kept in mind that the detenu is in jail and has no access even to his own documents and it has also been pointed out that it has also been the consistent view that when a detention order is passed all the material relied upon by the detaining authority in making such an order, must be supplied to the detenu to enable him to make an effective representation against the detention order in compliance with Article 22(5) of the Constitution, irrespective of whether he had knowledge of the same or not. Therefore, the contention of the learned Public Prosecutor cannot be countenanced.

40. In the decision reported in AIR 1987 SC 1992 (supra), the Apex Court has held that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order. The Apex Court has relied upon the decisions reported in AIR 1975 SC 1513: 1975 Cri LJ 1327 and AIR 1975 SC 245: 1975 Cri LJ 1252.

41. Therefore, for the aforesaid reasons, we are of the considered view that the non supply of the MOU, dated 14.11.2005 and the agreement dated 19.11.2005 and the documents enclosed with the rejoinder representation dated 25.10.2011 submitted by the detenu, which have been admittedly perused by the detaining authority, violates the right of the detenu conferred on him under Article 22(5) of the Constitution of India and Section 8 of the Tamil Nadu Act 14 of 1982 and therefore, the impugned order of detention cannot be sustained any further.

		42. The next contention of the learned Senior Counsel   is that the representation  of the petitioner   dated  31.10.2011   was not placed before the Advisory Board    and  it was not  also considered by the Government while confirming the  order of detention.     
		43. It is  not in dispute  that   the petitioner  sent the representation dated  31.10.2011  and the same had been  received  by the detaining authority.   The contention of  the learned Senior Counsel is that as per Section 10 of  Act 14 of 1982,  it is incumbent  on the part of  the State Government  to place before the Advisory Board  constituted  by them  under Section 9, the grounds on which  the order  has been made and the representation, if any, made by the person affected  by the  order and therefore,  the non  placement of  the said representation dated  31.10.2011  before the Advisory Board    by  the Government   vitiates the order of  detention. 
		
		44. In  support of the said contention, the learned Senior  Counsel  had relied upon the three decisions  referred to supra.   In the decision reported in  1984  CRI.L.J. 68,  a  Division  Bench of this Court, while  considering Section 10 of Act 14 of 1982,  has held as follows:- 
		"It is clear that the Supreme Court, by necessary  implication   has held that  the  detaining authority is obliged to forward all the subsequent  material having a bearing on the matter to the Government and to the Advisory Board."
		45. In the decision  reported in  1989 CRI.L.J. 637 (K.V. Jesudasan vs. State of T.N. and another) another  Division Bench of this Court, in paragraph 8,  has laid down as follows:-

8. In law, the responsibility of the Advisory Board in the scheme of preventive detention is extremely important. It is a body, independent from the Detaining Authority, whose duty is to go into the facts in order to appreciate whether it is proper or not to keep the person concerned under detention. The detaining authority has to abide by the opinion of the Advisory Board in case the Advisory Board opines that it is not necessary to detain the person concerned. Therefore, the detaining authority cannot vest on himself any discretion regarding the opportunity of forwarding or not forwarding to the advisory board any material which may have some relevant on the detention. The relevance is to be ascertained having regard to the nature of document and not to its content in respect of which one may be lead to form a subjective opinion.

46. Yet another Division Bench of this Court in the decision reported in CDJ 2003 MHC 831, in paragraphs 11, 12, 13 and 14 has laid down as follows:-

11. Again, the learned Additional Public Prosecutor wants us to read the word 'representation' in Section 10 of the Act as the representation made to the Government only.

12. We are unable to agree. A representation is not made to a particular authority. It is a representation made by the detenu challenging this detention. So, any communication by which the detenu challenges the detention order becomes a representation as contemplated in Section 10. It need not be specifically directed to the Government alone. In this behalf , there are any number of pronouncements that even a representation sent to the President of India has been treated to be a representation to the Government of India. If that is so, the representation does not lose its character as a representation merely because it is not directed to the Government and directed to the Detaining Authority. That will be a simple way of reading the Section. If we accept the interpretation to be forwarded by the learned Additional Public Prosecutor, we would be doing harm to the plain and simple language of Section 10. In that view, it must be held that in view of the admitted position that the very first representation was not put before the Advisory Board, there is a clear-cut breach of Section 10.

13. Learned Additional Public Prosecutor further almost by way of a desperate argument argues that both the representations were of similar nature and whatever was raised in the first representation was also raised in the second representation dated 1.10.2002.

14. That may be so. That was not for the Government to consider. The Government was bound by the dictate of the Section that every representation must go before the Advisory Board provided the Government comes into the possession of any such representation.

47. Ultimately, the Division Bench held that it is a trite law that where the provision of law is mandatory, its breach would straightaway fatalise the detention and that is exactly what has happened in that case and the order of detention was quashed.

48. The law laid down in the aforesaid three decisions clearly repel the contention of the learned Public Prosecutor. The representation, dated 31.10.2011 contains the similar contents as that of the contents contain in the representations dated 3.11.2011, 12.11.2011 and 7.12.2011 and therefore, the non placement of the said representation before the Advisory Board will not vitiate the order of detention cannot be countenanced.

49. The contention that the words ",J bjhlh;ghd Mtz';fs " found in the order of confirmation would indicate that the representation dated 3.11.2011 had been placed before the Advisory Board and the same has been considered by the Advisory Board as well as by the Government is concerned, the said contention is made in desperation. After the said words, the three representations dated 3.11.2011, 12.11.2011 and 7.12.2011 have been specifically referred to but the date 31.10.2011 has conspicuously not been mentioned. Therefore, it is very clear that the said representation dated 31.10.2011 had neither been placed before the Advisory Board nor considered by the Government while confirming the order of detention and therefore, on this ground also, the impugned order of detention is liable to set aside.

50. The next contention that has to be considered is whether on the materials placed before the detaining authority, the detaining authority is justified in coming to the subjective satisfaction that the cases registered against the detenu will show that the detenu created panic and a feeling of insecurity in the minds of public of that area and thereby acted in a manner prejudicial to the maintenance of public order?

51. In paragraph 4(i) of the grounds of detention, the detaining authority has stated that he is satisfied that the detenu is habitually committing crimes and also acting in a manner prejudice to the public order and as such he is a "Goonda" as contemplated under Section 2 (f) of Tamil Nadu Act 14/1982 by committing "the above said offence".

52. It is contended by the learned Senior Counsel Mr.B.Kumar, the above said offence, refers to the ground case, namely, Cr.No.27 of 2011 on the file of the District Crime Branch, Coimbatore. A reading of the paragraph 3(i) and (ii) of the grounds of detention shows that the detaining authority has considered the alleged forgery committed by inserting Rs.44.11 per equity share in the MOU dated 14.11.2005 and by filling up the blank left in the agreement dated 19.11.2005 with the figure as 15 crores. The detaining authority has also stated that the detenu and his assistant have given disturbance to the complainant and on 4.7.2011 at about 12.30 hours when the complainant was at his office, and at the instigation of of the detenu, Thiru. Durai a Retired Police Officer, Mr. Kiran Kumar and his uncle Mr. Anjaneyelu have trespassed into his office, criminally intimidated him to sign in some important documents with anti-date and to hand over the possession of the properties and that further on 11.7.2011 at 11.00 hours at Sathy to Coimbatore road, near Kurumbapalayam pirivu when the complainant was proceeding in his car, the detenu, Mr. Durai, Mr. Kiran Kumar, Charles and Benjamin have waylaid him with deadly weapons and kidnapped him to Akshaya textiles, threatened him to sign necessary documents and that they have torn the documents in the office , damaged the window glasses, computers and attempted to murder him with a view to grab his properties.

53. The aforesaid acts constituted the commission of offences for which the case in Cr.No.27 of 2011 had been registered and the same have been relied upon by the detaining authority to come to the subjective satisfaction that the detenu had created panic and a feeling of insecurity in the minds of people of that area and thereby acted in a manner prejudicial to the maintenance of public order.

54. The learned Senior Counsel submitted that when admittedly, the aforesaid offences have not been committed in a public place and in the presence and view of the public and the public have not got terrorised and even tempo of the society of that locality or area had not been affected, it will not amount to disturbance to the public order but it will only be a law and order problem. But the contention of the learned Public Prosecutor is that the said offences though have been committed inside the premises of the textile mils of the complainant, the same was viewed by the complainant, his driver and his manager and therefore, it will amount to a public order problem. Further, once the detaining authority has come to the conclusion that the detenu is a Goonda as defined under 2(f) of the Tamil Nadu Act 14/1982, it is sufficient to pass the order of detention.

55. In the decision reported in CDJ 2008 SC 1445 (K.K. Saravana Babu vs. State of Tamil Nadu and another), the Apex Court considered the validity of the detention order passed under Section 3(1) of the Tamil Nadu Act 14 of 1982. In that case, the distinction between law and order and public order was considered. It was contended that the detenu was involved in two cases and in one case the case was registered for the offences under Sections 420, 465, 468 r/w 471 and 120(B) I.P.C. and another case was registered for the offences under Sections 420, 465, 466, 467, 468 r/w 471 and 120(B) I.P.C. It was contended by the detenu that even if all the allegations incorporated in both the crime numbers are taken to be true, the offences committed by the detenu cannot be said to be prejudicial to the public order. 56. In paragraphs 31 and 32 of the said decision, it has been laid down as follows: -

"31. We have tried to deal with the important cases dealing with the question of "law and order" and "public order" right from the case of Romesh Thappar (supra) to the latest case of R. Kalavathi (supra). This Court has been consistent in its approach while deciding the distinction between 'law and order' and 'public order'. According to the crystallized legal position, cases affecting the public order are those which have great potentiality to disturb peace and tranquility of a particular locality or in the words of Hidayatullah, J. Disturb the even tempo of the life of the community of that specified locality.

"32. In the instant case, in the grounds of detention, two cases have been enumerated, one of which pertains to the offences punishable under sections 420, 465, 468 read with 471 and 120(B) IPC in Crime No.70 of 2006. Another case pertains to Crime No.364 of 2007 registered under sections 420, 465, 466, 467, 468 read with 120(B) IPC. The facts of these cases have been carefully examined and even assuming the allegations of these cases as true, even then by no stretch of imagination, the offences committed by the detenu can be called prejudicial to public order. The detenu can be dealt with under the ordinary criminal law if it becomes imperative."

57. Thus, it is clear that the cases which have potentiality to disturb peace and tranquillity of a particular locality or even tempo of the life of the community of that specified locality are the cases affecting the public order. 58. In the decision reported in (2007) 2 MLJ (Crl.) 1528 (Supra) a Division Bench of this Court, while considering a similar question in paragraph 10 has laid down as follows:-

10. The other submission of the petitioner, to the effect that the alleged occurrence on the basis of which a case under Section 392 I.P.C. has been registered related to the question of mere law and order and not public order however, stands on a stronger footing. It is obvious that the detaining authority based his conclusion on the basis of offence under Section 392 I.P.C. allegedly committed on 21.8.2006. Topography of the place where such occurrence took place was available in the booklet furnished. Prima facie it does not indicate that occurrence took place in a busy public place nor there is anything to show that it took in the presence of several persons likely to cause panic among the general public. The manner in which occurrence is said to have taken place indicates that it is case of law and order situation rather than public order situation. Keeping in view the setting and the manner in which the alleged occurrence was committed, we are of the considered opinion that the incident related to law and order situation rather than a public order situation and the subjective satisfaction of the detaining authority is vitiated so far as this aspect is concerned.

59. In that case, the occurrence had not taken place in a public place nor was nothing to show that the incident took place in the presence of several persons and caused panic among the public and therefore, the Division Bench held that the incident related to law and order situation rather than the public order situation and further held that the subjective satisfaction arrived at by the detaining authority is vitiated. The said decision is squarely applicable to the facts and circumstances of the case.

60. In this case, admittedly, the occurrence said to have taken place on 11.7.2011 was only inside the textile mills of the defacto complainant and it had not taken place in a busy public place and there is nothing to show that it had taken place in the presence of several persons and caused panic among the general public. The contention of the learned Public Prosecutor that the driver of the de facto complainant and his manager were also present at the time of occurrence is immaterial. The presence of personal staff of the defacto complainant inside the textile mill wherein the occurrence is said to have taken place cannot be construed to have taken place in the presence of the public and at a public place and there is no material before the detaining authority that the said occurrence caused panic among the general public. The manner in which the occurrence is said to have taken place indicates that "it is the case of a law and order situation rather than the public order situation." The learned Public Prosecutor relied upon the decision of the Division Bench of this Court reported in 1993 L.W. (Cri) 113 (supra). In the decision , it is no doubt it has been laid down as follows:-

28. ..... The definition of 'goonda' refers to the habitual commission or attempt to commit or abatement of the commission of offences specified in the section. When a person is found to be a goonda it goes without saying that he is a person who habitually commits or attempts to commit or abets commission of offences. Hence it is not necessary further for the authority to wait for his committing another act which is likely to cause prejudice to the maintenance of public order. If the facts and circumstances placed before the authority are sufficient to enable him to arrive at the conclusion that he is a goonda then those facts and circumstances are sufficient to consider the second question also as to whether such acts will cause prejudice to the maintenance of public order. The object of the Act is to prevent the person concerned to act in a manner prejudicial to the maintenance of public order. It would be futile to contend that the authority should wait till he acts in such a manner. In that case it will not be preventive detention but a case of detention after the commission of the offence. Hence a reading of S.3(1) together with S.2(a) and (f) of the Goondas Act makes it clear that if the commission of offences is sufficient to brand a person as a goonda within the meaning of S.2(f) they can themselves be taken into account for considering the question whether he is acting in a manner prejudicial to the maintenance of public order.

61. In that decision, the Division Bench has not considered the distinction between law and order and public order and therefore, the said decision would not lend any support to the contention of the learned Public Prosecutor. 62. In the decision CDJ 2008 SC 1445 referred to above also, the Apex Court considered the validity of the detention order under Act 14 of 1982. In that case, the detenu was branded as a slum grabber. Though the Apex Court has not found fault with the detaining authority in coming to the conclusion that the detenu was slum grabber, yet the Apex Court by considering the nature of the offences committed and the potentiality of the nature of the offences held that the acts committed by the detenu will come under purview of the law and order problem and not under the purview of the public order.

63. The learned Public Prosecutor based reliance on the decision rendered in Crl.A.No.417 of 2012 in the case of Subramanian vs. State of Tamil Nadu and another. In that case, the detenu was branded as a Goonda and detained under the Tamil Nadu Act 14 of 1982. The Apex Court while considering the question whether the action of the detenu is only a law and order problem or a public order problem , the Apex Court considered the nature of the activities indulged in by the detenu and has pointed out the distinction between law and order or public order. In the said decision, in paragraphs 12 and 13, it has been held as follows:-

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 recognised that public order is the even tempo of life of the community taking the country as a whole or even a specified locality. (Vide Puspha 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 & 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 18.7.2011. 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 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 crated 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.

64. Since in that case, when the complainant was assaulted and when he raised alarm for rescue, the general public came there and they were threatened by the accused by saying that if anyone turns up as witness, he will kill them and because of the threat given by the detenu the nearby shop-keepers closed their shops out of fear and auto drivers took their autos from the auto stand and left the place, the above scene, according to the detaining authority, created panic among the public. The Apex Court in such circumstances held that the scene created by the detenu and his associates cannot be termed as only a law and order problem and accordingly, rejected the contention raised by the detenu. Therefore, the facts of that case are different from the facts of this case. In that case, the occurrence took place in the presence of the public and the general public were threatened by the detenu and his associates and shop keepers closed their shops out of fear and auto drivers took their autos and left the place and the acts committed by the detenu and his associates created panic among the general public and therefore, the Apex Court has held that it is not a law and order problem but it is a public order problem. But in this case, admittedly, the occurrence has taken place inside the textile mill premises of the defacto complainant and not in the presence of public or public place and no public was threatened and even tempo of the society in that particular area was not affected. Therefore, we are of the considered view that in this case, the problem was only a law and order problem and not a public order problem.

65. In the decision reported in 1970 SC (Cr.) 67 (supra), which was relied upon by the public prosecutor, the distinction between public order and law and order was considered. In that decision, in paragraph 3, it has been laid down as follows:-

3. The submission of the counsel is that these are stray acts directed against individuals and are not subversive of public order and therefore the detention on the ostensible ground of preventing him from acting in a manner prejudicial to the public order was not justified. In support of this submission reference is made to three cases of this Court : Dr. Ram Manoha Lohia v. State of Bihar ; Pushkar Mukherjee and Others v. State of West Bengal and Shyamal Chakraborty v. The Commissioner of Police, Calcutta and Another. In Dr. Ram Manohar Lohia's case this Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed but the life of the community keeps moving at an even tempo, however much one dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace the large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not cause of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one the girls but even then it would be case of breach of law and order only. Take another case of a a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquillity there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the breach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No.179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar Lohia's case examples were given by Sarkar and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is : Does it lead to disturbance of the current of life of the community so as to amount a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? This question has to be faced in every case on facts. There is not formula by which one case can be distinguished from another.

66. The said decision supports the contention of the learned Senior Counsel for the petitioner rather than the contentions put forth by the learned Public Prosecutor. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is : Does it lead to disturbance of the current life of the community so as to amount a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on facts. In this case, on the materials relied upon by the detaining authority, we come to the conclusion that the activities of the detenu and his associates are directed only against individuals and such conduct may be reprehensible but it does not add up to the situation where it may be said that the community at large was being disturbed or in other words there was a breach of public order or likelihood of a breach of public order. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility and therefore, we are of the considered view that the contention put forth by the learned Public Prosecutor cannot be countenanced.

67. We are of the considered view that the alleged acts said to have been committed by the detenu will not amount to causing disturbance to the public order but it will amount to only law and order problem which could be effectively dealt with under ordinary criminal laws and therefore, the subjective satisfaction arrived at by the detaining authority is vitiated and the same cannot be sustained.

68. Further, the learned Public Prosecutor submitted that the detaining authority has not only relied upon the occurrence relating to Cr.No.27 of 2011 on the file of the District Crime Branch but also relied upon the occurrences relating to Cr.No.38 of 2011 on the file of the Central Crime Branch Salem City and Cr.No.1 of 2011 on the file of Central Crime Branch, Tiruppur and Cr.No.108 of 2011 City Crime Branch, Coimbatore for coming to the subjective satisfaction that the detenu had created panic and a feeling insecurity in the minds of people of that area and thereby acted in a manner prejudicial to the maintenance of public order.

69. But the aforesaid contention of the learned Public Prosecutor, cannot be countenanced for the following reasons:-

70. Before considering the aforesaid submissions of the learned Additional Public Prosecutor, it will be useful to refer to the provisions contained under Section 3(1) of the Act, the definition of "acting in any manner prejudicial to the maintenance of public order" in Sections 2(1)(a)(iii) of the Act and the definition of 'goonda' in Section 2(f) of the Act. Section 3(1) of the Act reads as follows :

"3. Power to make orders detaining certain persons : (1) The State Government may, if satisfied with regard to any bootlegger or drug offender or video pirates or forest offender or goonda or immoral traffic offender or slum grabber that with a view to prevent him acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained."

Section 2(1) (a)(iii) reads as follows :

"In this Act, unless the context otherwise requires :

(a) "acting in any manner prejudicial to the maintenance of public order" means -

(iii) in the case of a goonda, when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or likely to affect adversely, the maintenance of public order."

Section 2(f) of the Act reads 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, 1860 (Central Act XIV of 1860).

71. A conjoint reading of the aforesaid provisions makes it clear that before exercising the powers conferred on the State Government or the Authority empowered to pass an order of detention under Section 3(1) of the Act, the State Government or the Authority should be satisfied with respect to any 'goonda' that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to make an order to direct such a person to be detained. Therefore, in our considered view, Section 3(1) of the Act lays down a twin test to be satisfied before a person coming under the definition of a 'goonda' to be detained under the Act as a goonda. The first rest to be satisfied is that the Detaining Authority should be satisfied that a person comes under the definition 'goonda' as defined under Section 2(f) of the Act and then the Detaining Authority also should be satisfied that it is necessary to detain him with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. While coming to the second limb of the test, namely the second test, the Detaining Authority should come to the subjective satisfaction that such goonda has acted or is acting in any manner prejudicial to the maintenance of public order.

72. While considering the materials placed before the Detaining Authority to come to the subjective satisfaction that such goonda is acting in any manner prejudicial to the maintenance of public order, the Detaining Authority should consider the definition of 'acting in any manner prejudicial to the maintenance of public order' as contained in Section 2(1)(a)(iii) of the Act. Therefore, it is incumbent on the part of the Detaining Authority to be satisfied that in the case of a goonda, when he is engaged or is making preparations for engaging in any of his activities as a goonda, which affects adversely or like to affect adversely the maintenance of public order. While considering this aspect, the Detaining Authority, on the basis of the materials placed before him, should come to the subjective satisfaction as to whether the goonda is already engaged, which refers to the past acts or offences committed by the goonda and whether he is making preparations for engaging in any of his activities as a goonda, which affects adversely or likely to affect adversely the maintenance of public order. Unless both the aforesaid tests are satisfied, an order of detention cannot be passed against a person simply because such a person satisfies the definition of 'goonda' alone as defined under Section 2(f) of the Act. Therefore, the aforesaid contention of the learned Additional Public Prosecutor has to be considered in the light of the particular facts of this case and this Court has to further consider as to whether, in this case, the four cases relied upon by the Detaining Authority satisfy the twin tests stated above.

73. The particulars relating to the occurrence in respect of the case in Cr.No.38 of 2011 registered by the Central Crime Branch Salem have been set out at page 1 of the grounds of detention. Similarly, the particulars relating to the occurrence in respect the case in Cr.No.1 of 2011 registered by the Central Crime Branch Tiruppur have been set out at pages 2 and 3 of the grounds of detention. Similarly, the particulars relating to the occurrence in respect the case in Cr.No.108 of 2011 registered by the Central Crime Branch Coimbatore City have been set out at pages 3 and 4 of the grounds of detention.

74. A perusal of the said particulars relating to the aforesaid three crime numbers do not disclose that the occurrences took place in public view and in a public place and public were threatened and created panic in the minds of the public and the peace of particular locality or localities was affected in any manner. In the absence of such particulars, it could not be said that even tempo of the public was affected in that area or areas concerned and the said occurrences created a public order problem. In fact, the detaining authority has not in detail considered the particulars and the material facts relating to the aforesaid three crime numbers and has not specifically mentioned in the grounds of detention that the acts committed by the detenu in respect of the aforesaid crime numbers, created panic in the minds of the public of that particular locality or the public got terrorised.

75.In our considered view, the aforesaid three cases could not be said to have created any public order problem but it could have created law and order problem only and therefore, the contention of the learned Public Prosecutor cannot be countenanced.

76.The last submission of the learned Senior Counsel relating to delay in disposal of the post detention representation, the order of rejection is said to have been passed only on 5.12.2011 and not on 27.11.2011 when the Minister affixed his signature in the note file and the various decisions relied upon by the learned Senior Counsel and the contentions of the learned Public Prosecutor and the decisions relied upon by him are not considered by us, in this case, as the impugned order of detention, as pointed out, discussed and held above, is liable to be quashed on the aforesaid three grounds.

For the aforesaid reasons, the impugned order of detention is to be set aside. Accordingly, the impugned order of detention is set aside and the HCP is allowed. The detenu Martin S/o.Santiago is ordered to be set at liberty forthwith unless his custody is required in connection with any other case.










rnb

To

1    THE DISTRICT MAGISTRATE AND 
     DISTRICT COLLECTOR, COIMBATORE. 

2.   THE SECRETARY TO GOVERNMENT
     HOME, PROHIBITION & EXCISE DEPARTMENT, 
     SECRETARIAT, FORT ST. GEORGE  
     CHENNAI