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Judgment
Janarthanam, J.—The petitioner Kali challenges the order of detention of his friend Mannar alias Manohar (detenu) passed on 24-7-1990
by the Commissioner of Police, Madras City, the first respondent herein under S. 3(1) of the Tamil Nadu Prevention of Dangerous Activities of
Boot loggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of
1982) with a view to preventing him from acting in any manner prejudicial to the maintenance of public order considering him as a Goonda.
The detenu was earlier detained on 23-4-1985, 10-8-1986 and 5-10-1987 respectively and was released after the expiry of the period of
detention. After his release, he came to adverse notice in nine cases. The first four cases relate to Crime Nos. 1190, 709, 1225 and 1497 of 1989
of F2 Egmore Police Station respectively for offences u/Ss. 380, 420, 380, IPC and S. 65, The Tamil Nadu City Police Act. All those cases
culminated in filing of a final report u/S. 173(2), Cr.P.C. duly taken on file by learned XIV Metropolitan Magistrate, Egmore, Madras in C.C.
Nos. 7307 to 7310 of 1989. In all those cases, he was found guilty and convicted; but sentenced to rigorous imprisonment for 13 months in the
first three cases and for two months in the last case with a direction that the sentences awarded in the last three cases are to run concurrently with
the sentence awarded in the first case.
Three of the other five cases relate to Crime Nos. 714, 778 and 812 of 1990 of F2 Egmore Police Station for the alleged offence u/S. 379,
IPC in the earlier case and u/S. 380, IPC in the latter two cases. All those offences are said to have been committed during night hours
respectively on 16-4-1990, 24/25-4-1990 and 30-4-1990 and on the confession given by the detenu, certain recoveries of the articles stated to
have been stolen had been effected and all the cases are pending investigation.
The other case relates to Crime No. 345/90 of G1 Vepery Police Station for the alleged offence u/Ss. 457 and 380, IPC said to have been
committed during night hours on 15-5-1990. In this case also, gold jewels, said to have been stolen, were recovered pursuant to the confession.
This case is also pending investigation.
The remaining case relates to Crime No. 649/90 of D3 Ice House Police Station for the alleged offence u/S. 380, IPC said to have been
committed during night hours on 2-6-1990 leading to the recovery of gold jewels pursuant to the confession made. This case is also under
investigation.
Paragraph 3 of the order of detention dealing with the facts of the ground case is as follows :
Thiru Thirunavukkarasu, male, aged 53, S/o Munuswamy Naicker, is residing at No. 27, Begum Sahib Street, 5th Lane, Ice House, Madras-5.
Thiru Thirunavukkarasu is eking out his livelihood by doing embroidery work at Poes Garden. Thiru Thirunavukkarasu, on 11-7-90, at about 0800
hours, left his house, in connection with his work. At about 1800 hours he returned back and after taking his coffee, he was sitting along with his
family members and watching Television programme. At about 7-30 p.m., Thiru Thirunavukkarasu noticed Thiru Mannar alias Manohar
(hereinafter called Mannar) committing theft of transister and wrist watch which were kept in the front room by him and moving out of his house.
Immediately Thiru Thirunavukkarasu, by asking, (Vernacular matter omitted) rushed to catch hold of Thiru Mannar. Thiru Mannar fisted Thiru
Thirunavukkarasu over his face and chest. Thiru Thirunavukkarasu fell down on the floor. Immediately, Thiru Thirunavukkarasu along with his wife,
raised hue and cry by saying, (Vernacular matter omitted) and chased him. Thiru Mannar dropped the transister and noticing the chasing of Thiru
Thirunavukkarasu, came out of the house and proceeded towards Dr. Besant Road. Tvl. Srivalasava and Moorthy, who were there at the spot,
noticed Thiru Mannar, being chased by Thiru Thirunavukkarasu and his wife. They also joined with Thiru Thirunavukkarasu and rushed to catch
the culprit. Suddenly, in front of a shop, at Dr. Besant Road, Thiru Mannar turned back and by brandising a knife, terrorised them. Thiru
Thirunavukkarasu and others feared danger and could not move further. Further, Thiru Mannar ""raised rowdy shouts by saying (Vernacular matter
omitted) and rushed to stab them by saying, Tvl. Thirunavukkarasu and others tried to surround Thiru Mannar and to catch him at the spot.
Immediately, Thiru Mannar folded the knife and kept the same in his hip and proceeded on the western side of Dr. Besant Road. Further, he also
picked up soda-water bottles from the nearby shop at Thiru Nagar and hurled the same on the roadside. The soda-water bottles broke into pieces
with loud noise and the splinters scattered all over the roadside. The public who came to the nearby to shop to purchase items and the public who
were standing in the nearby places, feared danger to their lives and properties and ran for safer places. The auto drivers who were standing at the
spot noticed the atrocious activities and left the spot with their autos. The nearby shop-owners closed down their shops fearing danger to their life
and property and suspended their business. The public who came in their cycles and scooters turned back their vehicles and left the spot. The
traffic in that area was dislocated. However, Thiru Thirunavukkarasu and others surrounded Thiru Mannar. Meanwhile, the Police personnel Tvl.
Sudakar and Ganesan, attached to D-3 Ice House Police Station, who were on beat duty, were also assisted Thiru Thirunavukkarasu and others
and surrounded Thiru Mannar and caught hold of Thiru Mannar at the junction of Tippu Sahib Street and Dr. Besant Road. The stolen wrist watch
was taken away from Thiru Mannar''s pocket by Thiru Thirunavukkarasu. The transister which was committed theft and dropped by Thiru
Mannar, was also taken by Tvl. Sudakar and Ganesan. The stolen properties and the accused were taken to D-3 Ice House Police Station by
Thirunavukkarasu and other witnesses and Thiru Thirunavukkarasu lodged a complaint in this regard to the Sub Inspector of Police Thiru
Varghese, attached to D-3 Ice House Police Station. A case in D-3 Ice House Police Station Crime No. 788/90 u/S. 392, 397, 394, 426 and
506(ii), IPC was registered by the Sub-Inspector of Police. The case was taken up for investigation. The accused was arrested and his
confessional statement was recorded. Thiru Thirunavukkarasu was sent to Government Hospital for treatment. The properties so produced at the
station were recovered under cover of Form 95. Further investigation was taken up by the Inspector of Police, Crime, D-l Triplicane Police
Station, Thiru Sivaraman. The Inspector of Police visited the spot and prepared an Observation Mahazar. He also seized the broken soda-water
bottle pieces under cover of Mahazar. The Inspector of Police also examined the witnesses and recorded their statements. As per the confession
statement of the accused, Thiru Mannar, the properties concerned in other cases were also recovered. He was later duly remanded by the XIII
Metropolitan Magistrate, Egmore and lodged at Central Prison, Madras, as a remand prisoner. The case is under investigation. The offence u/S.
336, IPC is an offence as such committed against human body punishable under Chapter XVI of the Indian Penal Code. The offence u/S. 392 r/w
397, 394, 426, IPC are offences committed against property as such punishable under Chapter XV of the Indian Penal Code. The offence u/S.
506(ii) IPC is an offence punishable under Chapter XXII of the Indian Penal Code. By committing the above described grave crime in the public in
the busy evening hours, in the residential-cum-business locality, he has created an alarm and a feeling of insecurity in the minds of the people in the
area and thereby acted in a manner prejudicial to the maintenance of public order.
The basic facts of the case constituting certain grave offences under the Indian Penal Code. coupled with the antecedent acts of the detenu, in
the shape of certain cases coming to adverse notice, it is said, furnished the requisite and relevant materials for deriving the subjective satisfaction of
the detaining authority to clamp the order of detention.
The order of detention was approved by the Government on 3-8-1990. On a reference, the Advisory Board gave its seal of approval. The
Government confirmed the opinion of the Advisory Board on 11-9-1990 and ordered the detention to be in force for a period of twelve months
from its inception. Hence the petition.
Manifold grounds, though resorted to be taken in this petition, feeling that all those grounds, if urged, may not bear fruit, learned counsel for the
petitioner would restrict his submission to the sole and lone ground that though the detaining authority was aware of the detenu being in remand at
the time when the detention order was passed, as disclosed by para 4 of the order of detention, he was impelled to pass the said order, as there
was an imminent possibility that he might come out on bail by filing a bail application in Court and if he were to come out on bail, he would indulge
in further activities, which would be prejudicial to the maintenance of public order, yet there were no cogent materials for coming to such a
conclusion on the facts and circumstances of the case and therefore it is that the order of detention would result in invalidation.
The question similar to the one came up for consideration on many an occasion before the apex of the Judicial administration of this country
and some of those decisions in evolution of law on this aspect of the matter, we feel, if referred to, will serve as an useful guide in arriving at a just
conclusion in the instant case.
The Constitution Bench of the Supreme Court in the decision Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, :
As an abstract proposition of law, there may not be any doubt that S. 3(1)(a) does not preclude the authority from passing an order of detention
against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a
difference in the application of the principle that a detention order can be passed against a person in Jail. Take for instance, a case where a person
has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is
pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the
end of the period of the sentence imposed on him. In dealing with this question, against the considerations of proximity of time will not be irrelevant.
On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he
would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the
detention of the said person would be necessary after he is released from jail, and if the authority, is bona fide satisfied that such detention is
necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent history and the past
conduct on which the order of detention would be based would, in which a case, be proximate in point of time and would have a rational
connection with the conclusion drawn by the authority that the detention of the person after his release is necessary. It may not be easy to discover
such rational connection between the antecedent history of the person who has been sentenced to ten years'' rigorous imprisonment and the view
that his detention should be ordered after he is released after running the whole of his sentence. Therefore, we are satisfied that the question as to
whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances
of each case.
The question which still remains to be considered is : can a person in jail custody, like the petitioner, be served with an order of detention whilst he
is in such custody ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the
25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail
custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain
the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in jail ? We have already seen the
logical process which must be followed by the authority in taking action u/S. 3(1)(a). The first stage in the process is to examine the material
adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the said
material appears satisfactory to the authority, when the authority has to consider whether it is likely that the said person would act in a prejudicial
manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention
order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is
necessary to prevent him from acting in the prejudicial manner, the authority has to be satisfied, that if the person is not detained, he would act in a
prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how
can it rationally be postulated that if he is not detained, he would act in a prejudicial manner ? At the point of time when an order of detention is
going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which
would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the
purpose of preventing him from acting in a prejudicial manner is thus the basis of the order u/S. 3(1)(a), and this basis is clearly absent in the case
of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not
justified by S. 3(1)(a) and is outside its purview.
In Kake Singh Alias Surendra Singh Vs. State of Madhya Pradesh, , the Supreme Court said (para 9) :
Preventive detention is resorted to, to thwart future action. If the detenu is, already in jail charged with a serious offence, he is thereby prevented
from acting in a manner prejudicial to the security of the State, May be, in a given case there yet may be need to order preventive detention of a
person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of
preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order
needs to be made. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is
required to be made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order.
In Ramesh Yadav Vs. District Magistrate, Etah and Others, , the Supreme Court said :
Where the order of detention was passed because the detaining authority was apprehensive that in case the detenu was released on bail he would
again carry on his criminal activities in the area, the same was not proper. If the apprehension of the detaining authority was true, the bail
application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the
ground that an accused in detention as under trial prisoner as likely to get bail, an order of detention under the Act should not ordinarily be
passed.
In Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, , the Supreme Court stated (para 7) :
It is well-settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be
exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be
used with great deal of circumspection. There must be awareness of the fact necessitating preventive custody of a person for social defence. If a
man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. A bald
statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have
been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the
democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens ......... If that is the position,
then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu
could not have been put into preventive custody.
In N. Meera Rani Vs. Government of Tamil Nadu and Another, , the Supreme Court, after considering the earlier cases extensively, deduced
the proposition as under (at pp. 2200 and 2201 of Cri LJ) :
Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the
particular case, preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to
the maintenance of the public order etc., ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its
awareness to the fact of subsisting custody of the detenu and kept that factor into account while making the order; but even so, if the detaining
authority is reasonable satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate
in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made
even in anticipation to operate on his release. This appears to us, to be the correct legal position.
In Poonam Lata Vs. M.L. Wadhawan and Another, , it was reiterated that detenu being already in jail at the time of passing detention order
does not by itself vitiate the detention if the detaining authority is aware of this fact but even then it is satisfied about the necessity of preventive
detention. The Constitution Bench decision in Rameshwar Shaw''s case 1964 (1) Cri LJ 257 and the other earlier decisions were referred to, while
reaching this conclusion. The correct position was reiterated and summarised as under (at p. 1929 of Cri LJ) :-
It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order
of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining
authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became
necessary. In the facts of the present case, there is sufficient material to show that the detaining authority was aware of the fact that the petitioner
was in custody when the order was made, yet he was satisfied that his preventive detention was necessary.
One of the latest judgments of the Supreme Court in Dharmendra Suganchand Chelawat and another Vs. Union of India and others, once
again all the authoritative pronouncements including that of the Constitution Bench in Rameshwar Shaw''s case 1964 (1) Cri LJ 257 are referred to
and the Bench which consisted of three Judges observed thus (para 19 of 1990 Cri LJ 1232) :
The decision referred to above led to the conclusion that an order for detention can be validly passed against a person in custody and for that
purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in
detention, and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression
compelling reasons"" in the context of making an order for detention of a person already in custody implies that there must be cogent material
before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future,
and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in
prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
It can thus be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed
against a person in custody under any circumstances whatever. Therefore facts and circumstances of each case have to be taken into consideration
in the context of considering the order of detention passed in the case of a detenu, who is already in jail. Coming to the facts of the instant case, we
shall endeavour to find out as to whether the clamping of the order of detention of the detenu whilst in custody would be justified in the
circumstances of the case.
As referred to above, the order of detention had been passed on 24-7-1990. There is no pale of controversy that the said order had been
served on the detenu while he was in prison as a remand prisoner in the ground case. A cursory glance or look of the detention order indicates an
initial impression on the mind that the detenu could not have been engaged in prejudicial activities in cases that came to adverse notice and referred
to as items 5 to 9, the events or occurrences of those cases having happened between 16-4-1990 and 2-6-1990, on the face of his conviction and
sentence to 13 months rigorous imprisonment on 13-11-1989 in the adverse cases referred to as items 1 to 4. The order of detention does not
disclose whether he came out on bail on filing his appeals against the conviction and sentence, by the suspension of sentence pending disposal of
those appeals. The initial cloud of impression gets removed by a peep into the annexure to the detention order containing the list of documents
furnished to the detenu. The copies of judgments in those adverse cases, in which he stood convicted and sentenced reveal that on the date of
conviction, he was not at all sent to prison for undergoing the sentence as he had already been in prison as a remand prisoner to the length of the
sentence, thereby enabling setting off to be given to him u/S. 428 of the Cr.P.C. Such being the case, it cannot at all be stated that the detaining
authority was not at all aware of this fact. In such a situation, to say that the detaining authority had not at all applied its mind in making reference to
the occurrence in the adverse cases referred to as items 5 to 9 is nothing but a futile exercise.
The sordid fact is, as already adverted to, that on the date when the order of detention was served, the detenu was a remand prisoner in prison
in the ground case. No doubt true it is that as disclosed by para 4 of the detention order, there was awareness of the detaining authority as to this.
Notwithstanding this awareness, he would say,
There is imminent possibility that he may come out on bail for the offences u/Ss. 392 r/w 397, 394, 336, 426 and 506(ii) I.P.C. by filing bail
application in the Court. If he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public order.
Further the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities which
are prejudicial to the maintenance of public order.
Of course true it is that the antecedent activities of detenu are approximate in point of time and this will be made patent by a casual glance of the
various dates on which the occurrences took place in those adverse cases. In such circumstances the potentiality for the detenu to engage himself in
prejudicial activities in the near future cannot be ruled out of consideration. Deriving subjective satisfaction on that aspect of the matter alone is not
sufficient. It is further necessary for the detaining authority to come to the conclusion that there was an imminent possibility of his coming out on bail
and without his being engaging in activities prejudicial to the maintenance of public order. No doubt, the detaining, authority had indicated its mind
in the portion of the order, as extracted above, as to the imminent possibility of the detenu being released on bail. It is after all the ipse dixit of the
detaining authority without any relevant or cogent materials for arriving at such a conclusion. If a cursory glance of the offences, he was stated to
have committed in the grounds case is made, one of such offences, namely, the offence u/S. 397, IPC is an offence exclusively triable by a Court
of Session and the Magistrate had no power at all to release him on bail and if at all the bail is to be granted, it may be done only by a Judicial
Officer in not less than the cadre of a Sessions Judge.
The agonising factor is, as already referred to, the detenu was a remand prisoner on the date when the detention order was served. The further
puzzling factor is that he did not at all take out an application for his release on bail. Even if he did file an application for the release on bail, there is
every conceivable opportunity for the prosecuting agency to oppose the bail tooth and nail drawing out the attention of the Court, before which the
bail application is moved, the gravity of the offences and his propensity to commit the crimes of such a magnitude by revealing before the Court his
antecedent prejudicial activities. To say on the face of the existence of such clinching circumstances and the predicament situation in which the
detenu was placed, there was an imminent plausibility of his being released on bail, is rather inconceivable.
Even assuming for argument''s sake the detenu happened to be released on bail in the ground case, despite stout opposition emerging from the
prosecuting agency, leave alone agitating the matter further by knocking at the door of the competent Court for cancellation of bail, since neither
the detenu''s arrest is shown; nor production after arrest before Court is made for purpose of remand in the adverse cases shown as items 5 to 9
that came to light on his being arrested in the ground case, it cannot be stated that there were bright and imminent prospects of his being released
on bail in those cases in the meantime so as to engage himself in revealing in activities prejudicial to the maintenance of public order.
We are thus satisfied that the detention of the detenu, in the circumstances of the case, is not falling within the parameters prescribed by the
various pronouncements of the Supreme Court, as referred to earlier, the consequence of which, is that it goes without saying that the detention
order deserves to be quashed.
We allow the Writ Petition and direct that the detenu be set at liberty forthwith unless he is in lawful detention otherwise.
Petition allowed.