Durai alias Pullathachi Durai vs State of Tamil Nadu

Natarajan, J.—This petition under Article 226 of the Constitution of India has been filed for the issue of a writ of habeas corpus to cause the

production of a detenu by name Durai before this Court and for his being set at liberty after quashing the order of detention passed against him by

the second Respondent under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic

Offenders and Slum Grabbers Act (Tamil Nadu Act 14 of 1982, hereinafter referred to as the Act). On notice being issued, the second

Respondent and the first Respondent have filed counter-affidavits, controverting the grounds set out in the Petitioner''s affidavit to assail the order

of detention.

The impugned order of detention came to be passed by the second Respondent on 24th September, 1984. The order was served on the detenu

who was already in remand pursuant to his arrest in a case registered as Crime No. 1292 of 1984 of Chetput Police station under Ss. 323, 379

and 506 (second part), I.P.C. The detenu was furnished the grounds of detention and was also informed therein of his right to make a

representation to Government and also of his right to be heard in person by the Advisory Board. The detention order was approved by the

Government on 5th October, 1984. The detenu''s case was referred to the Advisory Board, on 1st October, 1984 on 2nd November, 1984 the

Advisory Board, after perusing the grounds of detention and connected records and after hearing the detenu, gave its report that there was

sufficient cause for the detention of the detenu. The Government considered the report of the Advisory Board and the relevant materials including

the grounds of detention and reached the conclusion that the detention order deserved to be confirmed and the detenu should be kept in preventive

custody for a period of twelve months from the date of detention. Accordingly, it passed an order of confirmation dated 14th November, 1984

and it was served on the detenu on 22nd November, 1984. Subsequently, the detenu sent an undated representation and it was received by the

Government on 18th December, 1984, i.e., long after the Advisory Board reviewed the case of the detenu on 2nd November, 1984. The

Government called for parawar remarks on 19th December, 1984 on the representation sent by the detenu. The parawar remarks of the second

Respondent were received on 26th December, 1984. The Government examined the representation as well as the parawar remarks and on 6th

January, 1985, the Government passed orders of rejection of the representation. The said order was issued on 7th January, 1985 and it was

served on the detenu on 8th January, 1985. Thereafter, the detenu has filed this petition.

In the affidavit filed in support of the petition, eight grounds have been taken to impugn the order of detention. Before dealing with the grounds

of attack, we may briefly state the contents of the grounds of detention. In para 1 of the grounds it is stated that the detenu is a habitual criminal

and is a goonda and he has come to adverse notice on account of five offences committed by him earlier. The first offence u/s 379, I.P.C. is said to

have been committed on 5th September, 1979 when the detenu committed theft of a sum of Rs. 550 from the pocket of one Jaivel. The second

offence u/s 379, I.P.C., resulted in the detenu being charged in C.C. 19313 of 1979 on the file of the X Metropolitan Magistrate, Egmore,

Madras, and his being convicted and sentenced to seven weeks'' R.I. on 5th February, 1980. The third offence u/s 379, I.P.C. is said to have

been committed on 19th October, 1979 when the detenu committed theft of a cash of Rs. 56 from the handbag of a bus passenger by name

Suryanarayanan. The fourth offence u/s 379, I.P.C. is said to have resulted in the Petitioner being charged before the X Metropolitan Magistrate,

and his being convicted and sentenced to undergo R.I. for seven weeks. The fifth offence which is also u/s 379, I.P.C., had led to the detenu being

prosecuted before the XIV Metropolitan Magistrate and his being convicted and sentenced to undergo R.I. for six months on 29th May, 1982.

Then there is reference in the grounds to the detenu being taken in preventive custody in pursuance of an order of detention passed against him on

11th August, 1982, under Act 14 of 1982, and his being released from preventive custody on 11th August, 1983. Para 2 of the grounds sets out

that a detention order u/s 3(1) of the Act has been made by the second Respondent on 24th September, 1984. Then para 3 sets out the specific

incident on the basis of which the order of detention has been made. This incident is said to have taken place on 16th September, 1984. When a

bus passenger by name Asariah was about to board a bus at the Panchavati bus stop on the Spur Tank Road, the detenu picked his pocket and

removed a purse containing Rs. 21. After picking the purse from Asaria''s pocket, the detenu is said to have passed it on to his accomplice, one

Mathi alias Mathivanan. Asariah caught hold of Mathi and demanded return of the money purse. The detenu pushed aside Asariah forcibly and

threatened him with dire consequences if he tried to apprehend Mathi. The detenu and his accomplice then started running away. Asariah gave

chase to them raising alarm. Three members of the public by name Shanmugham, Joseph and Raja Pandian, coming in the opposite direction,

obstructed the culprits from making good their escape. The detenu took out a folding knife from his waist and threatened these persons saying that

he would stab anyone who prevented his escape. Mathi picked up a stone and threatened them saying that if any one came near him he would

break his head. Seeing the dangerous move of the detenu and his accomplice, the passers-by on the road became panicky and began running

away for fear of being attacked. The womenfolk and children standing in front of the house rushed inside for purposes of safety. The movement of

traffic was disrupted. Even so, the two culprits were apprehended and they were disarmed and the stolen purse was recovered. The two culprits

were then taken to the police station and a report was given and a case was registered against them in Crime No. 1292 of 1984 of Chetput police

station u/s 379, I.P.C. The culprits were then sent for remand.

When those materials were brought to the notice of the second Respondent, he felt that the act of the detenu on the day in question had affected

the maintenance of public order to cognizable level and as such, an order of detention should be passed against the detenu under the Act and that

recourse to mere prosecution under the normal criminal law to deal with the offence committed by the detenu would not prove to be an adequate

check on him for effectively preventing him from indulging in activities prejudicial to the maintenance of public order.

Coming now, to the grounds raised by the Petitioner in his affidavit, he has stated in the first five grounds that the earlier convictions of the

Petitioner are remote in point of time and are therefore, stale materials and should not therefore have been taken into consideration by the second

Respondent. It is further stated that, in any event, the previous convictions had already been taken into consideration when the earlier case of

detention was passed and as such, they constituted spent materials and consequently, they cannot be taken into reckoning by the second

Respondent for forming a subjective satisfaction against him for passing the impugned order of detention. In grounds 6 and 7 the Petitioner has

stated that if the earlier convictions are eschewed from consideration the basis for the detention order will be only the last mentioned incident which

took place on 16th September, 1984. and on the basis of a solitary instance the detenu cannot be classified as a habitual criminal and made to

suffer an order of detention. In ground No. 8, the detenu has stated that he had sent his representation on 24th September, 1984, but it had been

rejected only on 7th January, 1985, and the delay as well as the non-application of mind to the merits of his case is violative of Article 22(5) of the

Constitution.

In the counter-affidavit of the second Respondent it has been stated that the five previous convictions of the detenu have been listed out only to

show that the Petitioner is an ex-convict and has bad antecedents and that these cases have been referred only to show that the detenu is a goonda

within the meaning of the Act, and that his classification in that category has not been made on the basis of surmises or conjectures. In so far as the

previous instances are stated to be spent materials by reason of the earlier detention order, it is stated as follows-

It is submitted that when a confirmed lawbreaker like the present Petitioner (who is the detenu) is convicted in a Court of law, the conviction

stands to his credit. It is submitted that just as an academic qualification and an academic degree stand to the credit of an individual till he dies, so

also the previous conviction stands to the credit of an ex-convict till his lifetime.

The counter-affidavit then refers to the belated representation sent by the detenu and the enquiries that were made with reference to it for furnishing

parawar remarks to the Government. Lastly, it has been stated that the incident which took place on 16th September, 1984 transgressed the limits

of creating a mere law and order problem alone and had, in fact, affected the even tempo of public life, and it was on account of that factor, the

detention order has to be passed.

The first Respondent in its counter affidavit has stated that there was no delay; nor non-application of mind in the consideration of the detenu''s

representation and as such, the order of detention is not vitiated in any manner.

Examining the contentions of the Petitioner, we find that grounds 1 and 2 raise a common argument. In all the grounds it is stated that the prior

cases in which the detenu was involved were of old origin and hence they ceased to have relevance at the time the impugned order of detention

was passed. The argument contains a basic fallacy in it. The Petitioner fails to see that Act 14 of 1982 stands on a distinct footing from other laws

providing for preventive detention. No doubt, this Act is also intended to detain persons without trial for ensuring the maintenance of public order.

But, there the similarity of this Act, with the other Acts comes to an end. This Act has been enacted for dealing with offenders who have become

specialists in distinctive fields of crime and who are engaging themselves in channelised activities of highly anti-social nature. Under the Act, a

bootlegger can be detained only for his bootlegging activities which have an adverse impact on the maintenance of public order. Likewise, a

goonda can be detained only for acts of goondaism which disrupt the maintenance of public order. In the same manner, drug offenders, slum-

grabbers and immoral traffic offenders can also be detained only for their respective categorised activities which affect adversely the maintenance

of public order. Therefore, what the detaining authority has first got to determine is whether a person is a bootlegger or a goonda or a drug

offender or a slum grabber or an immoral traffic offender. As to when a person can be classified under any of these categories, the Act itself

throws light. The latter part of the definition section, viz., Section 2 , defines when a person can be categorised as falling in one of those categories.

Therefore, the detaining authority has first got to apply his mind to that aspect of the matter and find out with reference to the antecedents of a

person, in which category he falls. After having categorised an offender in the appropriate discipline of anti-social activity, the detaining authority

has got to consider whether the offence of anti-social activity last complained of falls within the specialised category of activity of the person

concerned and, further more, whether the said act had its reverberations on the even tempo of the life, or the public and the maintenance of public

order. Consequently, the detaining authority has to subject the materials placed before him to a two-fold test. This is exactly what the second

Respondent has done in this case. The earlier convictions of the Petitioner call out his personality and delineate his line of channelised activity. The

last mentioned incident is then examined to determine the nature of the act and its impact on society. It is in this perspective ,the matter has got to

be done. Viewed in this manner, there is no scope for the Petitioner to contend that stale and obsolete materials have been taken into consideration

and secondly those materials had also lost their force by reason of the earlier detention order. It has to be pointed out that by reason of the earlier

detention order the history or character of the Petitioner does not get effaced. We do not, therefore, find any merit in grounds 1 to 5 contained in

the affidavit.

So far as grounds 6 and 7 are concerned, it has to be pointed out that the Act contemplates a detention order being passed against a goonda or

a bootlegger, etc. as the case may be, with reference to an act committed by him as a goonda or bootlegger respectively. The scheme of the Act is

such that even a particular act of a bootlegger, goonda, etc, can constitute adequate material for an order of detention being passed, provided it is

found that the person concerned is a specialist in the particular field of crime discipline, that the act in question fits in with his pattern of activities

and that he was of such an explosive nature that it seriously affected the maintenance of public order. As the second Respondent has tested the

anti-social activity of the detenu in the above said manner and reached mental satisfaction to pass the order of detention, there is no scope for the

Petitioner to contend that on the basis of an isolated incident he cannot be detained under the Act.

Coming to the last ground, we find from the records that a representation has been sent by some third party on behalf of the detenu and it was

attempted to make it appear that it had been sent on 24th September, 1984. Actually, the representation does not contain a date at the relevant

place, but, in the margin the date has been noted as 24th September, 1984. It has not been sent through the prison authorities. It has reached the

Government only on 18th December, 1984. If the representation had been sent on 24th September, 1984 itself, it should have reached the

Government within an interval of two or three days, and not on 18th December, 1984. In fact, the Petitioner''s counsel himself admitted that the

postal acknowledgment receipt is dated 18th December, 1984. It is, therefore, obvious that the representation has not been sent by the detenu

from prison, but by some third party from outside, and that too, only on or about the 16th or 17th of December, 1984. But, because the date had

been noted in the margin as 24th September, 1984, the Government had erroneously mentioned the date of the representation as 24th September,

1984, when it passed its orders of rejection. But, from the records it is clear that the representation had not been sent on 24th September, 1984,

but sent only on or about 16th December, 1984. As soon as this representation had been received, the Government had sent it to the second

Respondent for his parawar remarks, and, on receipt of the parawar remarks it has applied its mind to the Petitioner''s case and deemed it proper

to reject the representation on 6th January, 1985. The interval of time has been properly and satisfactorily explained. As such, the contention that

the Government had failed to consider the representation promptly, and, furthermore, it had not applied its mind to the detenu''s case, is devoid of

merit.

In the light of the conclusions reached by us, the writ petition deserves to fail and will accordingly stand dismissed.