M. Pari vs The State of Tamil Nadu and The District Collector and District Magistrate

V. Dhanapalan, J.—The petitioner is a friend of the detenu and challenge is made to the order of detention dated 14.04.2013 made in

C.M.P. No. 6/GOONDA/C2/2013, passed by the 2nd respondent under which the detenu has been branded as a ''Goonda'' and detained under

The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug- Offenders, Forest-offenders, Goondas, Immoral Traffic Offenders,

Sand offenders, Slum-Grabbers and Video Pirates Act, 1982, hereinafter referred to as Tamil Nadu Act 14 of 1982. As per the grounds of

detention dated 14.04.2013, the detenu came to the adverse notice in the following cases:--

In para-3 of the grounds of detention, it is stated among other things that the detenu is also involved in the commission of the offence, which

took place on 05.04.2013 at 10.30 hours., which led to the registration of a case by Veeranam Police Station in Crime No. 168 of 2013 under

Sections 147, 149, 153, 189, 342, 353 and 506 (i) IPC. It is further stated that the detenu was arrested on 05.04.2013 at 11.00 hours and was

produced before the Court of Judicial Magistrate No. IV, Salem, on the same day and remanded to judicial custody till 19.04.2013 and later, the

remand period was extended. The detaining authority, on being satisfied with the materials placed before him that the activities of the detenu are

prejudicial to the maintenance of public order, clamped the order of detention. Challenging the said order, petitioner is before this Court in this

habeas corpus petition.

The 2nd respondent herein has filed counter affidavit contending inter alia that the detenu is an active member of CPCL, which is an supportive

organisation of CPI (ML) which is banned by the Government, the detenu has conducted demonstrations to create a scene in the mind of general

public that the Government Machinery is under his control and several cases against the detenu are pending in Salem City and rural police Stations.

Though the detenu is provided with police security, he will avoid the PSO whenever he goes for such kind of activities like locking the police

station, etc. The averment of the petitioner that the detention of the detenu under Goondas Act is a malicious act of the district administration at the

instance of the local police is not correct as the detaining authority has passed the detention order with due application of mind, being satisfied after

careful perusal of all materials and records and grounds of detention. The detaining authority has also considered in the grounds of detention that

the detenu has been habitually indulging in such activities that are in a manner prejudicial to the maintenance of public order and public peace. The

averment of the petitioner that the adverse cases are of the year 2009 and are state and irrelevant to detain the detenu is not correct as during the

commission of those offences, the detenu and his associates have caused panic in the minds of the general public and has damaged public

properties and again indulged in the same kind of acts during the commission of the subsequent offence also. The averment of the petitioner that the

ground case is an act of law and order problem and it could be tackled under the normal law of the land is not correct as the activities of the

detenu and his associates during the commission of the offence in the ground case has created panic in the minds of general public and the activities

of the detenu affected public order and public peace and recourse to normal criminal law could not have the desired result of effectively preventing

the detenu from indulging in such activities since the detenu was detained under Act 14 of 1982 as a preventive measure. It is further stated in the

counter that the averment of the petitioner that the detenu has not committed any offence and he has demonstrated peacefully and he has not

locked the police station is not correct and actually, the petitioner, calling the media people, locked the Veeranam police station forcibly and

threatened the policemen before the press people. Accordingly, the respondents prayed for dismissal of this petition.

We have heard Mr. R. Sankarasubbu, learned counsel appearing for the petitioner and Mr. M. Maharaja learned Additional Public Prosecutor

appearing for the State, exhaustively.

Though Mr. R. Sankarasubbu learned counsel appearing for the petitioner raised several grounds to assail the order of detention, at the

foremost he contended that the impugned order of detention was passed on state grounds and hence, the same cannot be sustained. Learned

counsel would consistently state that the detenu is a practising lawyer and he has not indulged in any unlawful activity much less activities prejudicial

to the public at large. He pointed out that the ground case and adverse cases have no live link as the adverse cases relate to the year 2009 and the

ground case is one registered in the year 2013, and therefore, the detaining authority has not applied his mind while passing the detention order

branding the detenu as ""Goonda"", and the detenu is not a habitual offender. By pointing out to paragraph 4 of the detention order, learned counsel

would submit that the detaining authority has mechanically stated that the bail petition may be taken up for consideration whereas the bail

application is still pending and therefore, in that aspect also the order in question has been passed with total non application of mind.

In support of his submission the learned counsel for the petitioner relied on the decision of the Supreme Court reported in 2011 (3) MLJ (Crl.)

422 (SC) : 2011 1 L.W. (Cri.) 641 in the case of Rekha vs. State of Tamil Nadu and another.

On the other hand, Mr. M. Maharaja, learned Additional Public Prosecutor would contend that the gravity of the offence committed in the

ground case has to be looked into by this Court. He submits that even though a state case has been taken into account, that would not affect the

detaining authority''s perception over the habitual activities committed by the detenu and especially causing nuisance to public order and, therefore,

the detaining authority, has, only with application of mind, arrived at the subjective satisfaction to pass the detention order. The learned Additional

Public Prosecutor would further contend that Section 5-A of the Tamil Nadu Act 14 of 1982, was inserted with an intention that, if one or more of

the grounds is vague the order of detention still can be good if anyone of the grounds is deemed to be valid. He adds that, such an order shall not

be deemed to be invalid or inoperative merely because one or some of the grounds is or are, vague, non-existent, not relevant, not connected or

not proximately connected with such person or invalid for any other reason whatsoever. He would also submit that there may be several grounds,

but if one of the grounds is made out for detaining a person as Goonda then that is sufficient for the detaining authority to pass the detention order.

In support of his submission, the learned Additional Public Prosecutor relied on the following decisions:

(i) Mrs. U. Vijayalakshmi Vs. State of Tamil Nadu and another,

(ii) State of Tamil Nadu and Another Vs. Kethiyan Perumal,

(iii) G. Reddeiah Vs. The Government of Andhra Pradesh and Another, and

(iv) Subramanian Vs. State of Tamil Nadu and Another,

We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and perused the material records and

also the decisions relied on by them in respect of their rival contentions.

It is seen that the adverse cases relate to the occurrences that took place on 19.05.2009, 19.05.2009 and 20.11.2009 and the ground case

came to be registered on 05.04.2013. The first two adverse cases were registered on 19.05.2009 in Crime Nos. 1048 and 1049 of 2009 of

Pallappatty Police Station for the offences under Sections 147, 148, 341 I.P.C. and under Sections 3(i) and 5 of T.N.P.P.D. Act 1992. The third

adverse case was registered on 20.11.2009 in Salem Town Police Station Crime No. 1800 of 2009 for the offences under Sections 143, 341 and

188 I.P.C. and u/s 7(1)(a) of C.L.A. Act. The occurrence alleged in the ground case has taken place on 05.04.2013 at 10.30 hours at Veeranam

Police Station Crime No. 168 of 2013, after a period of three years from the date of registration of adverse cases. Verification of the above details

would show that the detenu had been involving himself in various activities. However, there is no material to show that the incident alleged had an

affect on the public order or public peace. Learned counsel for the petitioner has consistently pleaded before this Court that the detenu is a

practicing advocate and has filed several public interest litigations and has secured 40,000 sq. ft. of land meant for the poor people by filing a writ

petition in W.P. No. 15156 of 2008 and such activities of the advocate are appreciated by many prominent personalities, but the respondent took

note of certain events viz. the detenu''s involvement in matters relating to the poor and downtrodden, and therefore, such an attempt to detain him

as a ""Goonda"" was initiated. He has also stated that the detenu has not acted contrary to the provisions envisaged u/s 2(f) of the TN Act 14 of

1982 which inter alia defines the term ""Goonda"" as a person, who either by himself or as a member of or leader of a gang, habitually commits, or

attempts to commit or abets the commission of offence [punishable u/s 153 or Section 153-A under Chapter VII or under Chapter XVI or

Chapter XVII or Chapter XXII of the Indian Penal Code, 1860.

Section 2(1)(a)(iii) of the Tamil Nadu Act 14, 1982 makes it clear that ""Goonda"" is a person, who is engaged or is making preparation for

engaging, in any of his activities as a goonda, which affect adversely, or are likely to affect adversely, the maintenance of public order.

Section 5-A of the Act contemplates how the grounds of detention can be severable. It reads thus,

5-A. Grounds of detention severable -Where a person has been detained in pursuance of an order of detention [whether made before or after the

commencement of the National Security (Second Amendment) Act, 1984] u/s 3 which has bee made on two or more grounds, such order of

detention shall be deemed to have been made separately on each of such grounds and accordingly;--

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are,--

(i) vague

(ii) non-existent

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or Officer making such order would have

been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention.

But Section 5-A was introduced with an object to take care of such a situation for an extraneous consideration or irrelevant ground. Though it

does not affect the validity of the detention order, the fact remains that such an order is made against the settled principles of law, viz. a state case

has been taken into consideration. A verification of paragraph 4 of the detention order would reveal that the detaining authority has taken into

consideration all the adverse cases as well as the ground case for arriving at the subjective satisfaction and the reasoning arisen thereof for

consideration both in the adverse cases and the ground case when they are not severable and, therefore, the detaining authority with total non

application of mind has passed the impugned detention order. We have also seen the adverse cases said to have taken place on 19.05.2009 (2

cases) and the last adverse case registered on 19.11.2009. The particulars available in the grounds of detention would only go to show that the

alleged incident, which is the basis for the registration of the ground case, would only adversely affect the public order or public tranquility.

Though the learned counsel for the petitioner and the learned Additional Public Prosecutor relied on several decisions in support of their

respective claim, in view of the factual details referred to above, we are not inclined to place reliance on those decisions.

On consideration of the principles and ratio laid down by the Supreme Court and this Court in various decisions and considering the facts

discussed above, we are of the considered opinion that the impugned order of detention passed against the detenu is on state ground and with total

non application of mind and, hence, it cannot be sustained. Accordingly, the impugned detention order passed by the 2nd respondent, detaining the

detenu, namely Haribabu, S/o. Govindaraj, made in C.M.P. No. 6/GOONDA/C2/2013 dated 14.04.2013, is quashed and the habeas corpus

petition is allowed. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other

case. The Miscellaneous Petition is closed. Before parting with this case, we would like to observe that the standard and value of the institution of

Judiciary primarily and basically depend upon the conduct of the Advocates who practice law in Courts. A person like that of the detenu herein,

practising law, has an obligation to maintain probity and standard of professional ethics. Advocates are governed by the Advocates Act and the

Bar Council of India Regulations and they are the persons practising law with high morality. Therefore, this institution expects the detenu who is an

Advocate, while doing any public activity, to bear in mind such an obligation and upkeep the commitments and obligations in all his endeavours,

with discipline and as a law abiding citizen.