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Judgment
K.M. Natarajan, J.—This Writ petition is filed by one Masanam, co-brother of the detenu Dharmar under Article 226 of the Constitution of India, seeking for the issuance of a writ of Habeas Corpus, quashing the order of detention dated 3.2.1992 passed by the 1st respondent and setting him at liberty.
The detenu came to the adverse notice as bootlegger in view of the two cases referred to in the preamble of the grounds of detention and was detained on the basis of the ground case.
The impugned order was passed by the 1st respondent in exercise of the powers conferred by sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders Act, 1982 (Tamilnadu Act 14/1982, read with orders issued by the Government in G.O. Ms. No. 25, Prohibition and Excise Department, dated 18.1.1982 and amended in G.O. Ms. No. 35 Prohibition and Excise Department, dated 18.1.1992 under sub-section (2) of Section 3 of the said Act with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.
Since the facts which led to the passing of the impugned order were set out in detail in the grounds of detention and in view of the limited plea taken in the writ petition, we do not propose to reiterate the same once again in this order especially when the grounds of detention was admittedly duly served on the detenu.
Though the learned Counsel for the petitioner challenged the order of detention on many grounds, he confines his argument to grounds (h) and (d). In round (h) it is stated that the very fact the detenu is alleged to have been involved in three occurrences on the same day shows that these three cases have been foisted in order to make out a case for detention under Act 14 of 1982. Further, there is no material to come to the conclusion that the detenue is a Goonda who habitually committed offences or attempted to commit the offences referred to in the Act 14 of 1982 and as such the order of detention is illegal and liable to be set aside. In ground(d) it is stated that the representation sent by the detenu has not been considered expeditiously and not attended to immediately. The representation was dated 4.2.1992. There is considerable delay in considering the representation of the detenu and the authorities have failed to consider the representation effectively and properly. Further the representation has to be considered expeditiously and continuously. Since the authorities have failed to consider the representation made by the detenu, the detention is vitiated.
As regards the first point, it is to be noted that the 2nd respondent has not filed any counter. 1st respondent alone has filed counter affidavit. In paragraph 7 of the counter affidavit it is stated that it is not correct to say that the adverse cases and the ground case were foisted against the detenu and he is innocent. All the instances referred to in the grounds of detention occurred as stated therein. Copies of all the material documents, which were relied upon by the detaining authority in forming the subjective satisfaction and in ordering the detention of the detenu, were served on the detenu under acknowledgement. The detenu indulged in three offences on 17.1.1992 itself. The allegation against the complainant in the cases referred to are not correct and are denied. The detenu is a goonda within the meaning of Section 2(f) of the Tamil Nadu Act 14 of 1982 and hence he is liable to be detained under the Act in order to prevent him from so acting in a manner prejudicial to the maintenance of public order.
In this connection, learned Counsel drew our attention to two adverse cases referred to in the preamble and submitted that the first adverse case is alleged to have taken place at about 11.00 hrs. on 17.1.1992, in which the detenu and others are alleged to have demanded money from one Mani, who was proceeding to cinema. The said Mani refused to give money and, therefore, the detenu attempted to cut him with aruval, but he escaped and ran away. As regards the second adverse case, the occurrence is alleged to have taken place at 18.00 hrs. on 17.1.1992, in which the detenu and his associates threatened one Ramakrishnan and attempted to cut him with an aruval, saying that he was acting in support of Thevars of Tirunelveli Town. Causing danger to his life, the said Ramakrishnan ran under the bridge and was hiding there till the departure of the above persons and thereafter gave a complaint.
These are the two adverse cases referred to and on the basis of the same, the detenu is characterised as a goonda. Above all, he was also detained on the basis of the ground case, which is also said to have taken place on the same day i.e., 17.1.1992 at 19.45 hrs, wherein the detenu and his associates attacked one Isakkimuthu and Murugan or Kandiaperi. The learned Counsel drew our attention to the definition of the word "Goonda" and submitted that unless a detenu is a habitual criminal, he cannot be termed as "Goonda". In this connection he also drew our attention to the decisions of Apex Court and this Court for proper appreciation of the contentions of the learned Counsel for the petitioner. It is worthwhile to quote the two adverse cases referred to in the ground of detention which read as follows:
Sl. No. Police Station and Crime Number Section of Law Result/present stage of the case
Palayamkottai Police Station Cr. No. 54/92 147, 148, 427, 506 (ii) IPC On 17.1.92 at 11.00 hrs. in front of Kalaivani Cinema Theatre, Palayamkottai, Thiru Dharmar, S/o. Mookan @ Muthukrishna Konar, Tininelveli Town, Tininelveli Taluk with 10 named persons and three known persons, formed themselves into an unlawful assembly, armed with aruvals and demanded money for going to Cinema, from Thiru. Mani, S/o. Kakkayan of Tininelveli Town. As he refused to give money, as demanded, Thiru. Dharmar attempted to cut him with aruval, but he escaped and ran away from the scene. On a complaint from the said Thiru. Mani a case in Palayamkottai Police Station Cr. No. 54/92, u/s 147, 148, 506(ii) I.P.C. was registered and the case is under investigation.
Tirunelveli Bridge Police Station No. 50/92 147,148, 427,506(ii) I.P.C. On 17.1.92 at 18.00 hrs. in front of Nataraja Stores, Tininelveli Junction, Thiru. Dharmar, Son of Mookan @ Muthukrishna Konar, Tininelveli Town with 10 named persons and three known persons, formed themselves into an unlawful assembly, armed with aruvals, threatened Thiru Ramakrishnan, Son of Chelliah Piliai of Pallivasal Street, Tininelveli Town. Thiru Dharmar ran towards Thiru. Ramakrishnan and attempted to cut him with an aruval, saying that he was acting in support of the Thevars of Thirunelveli Town. Sensing danger to his life, he ran under the bridge and was hiding there till the departure of the above persons from the scene.
Later, on a complaint from Thiru. Ramakrishnan, a case was registered in Tininelveli Bridge Police Station Cr. No. 50/92, u/s 147, 148, 427, 506(ii) I.P.C. against Thiru. Dharmar and others and the case is under investigation.
u/s 2(f) of Tamil Nadu Act 14 of 1982 "Goonda" has been defined 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 (Central Act 45 of 1860)
The Apex Court had an occasion to consider the definition of the word "goonda" in an earlier case in Vijay Narain Singh Vs. State of Bihar and Others, wherein it was held as follows:
The expression ''habitually'' means ''repeatedly'' or ''persistently''. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It cannotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions.
In Rashidmiya @ Chhava Ahmedmiya Shaik Vs. Police Commissioner, Ahmedabad and Another, , while considering the definition of "dangerous person" under the Gujarat Prevention of Anti-Social Activities Act, 1985, which is in pari materia with the definition for "goonda" u/s 2(f) of the Tamil Nadu Act 14 of 1982, it was held by the Apex Court as follows:
Therefore, this solitary incident would hardly be sufficient to conclude that the detenu was habitually committing or attempting to commit or abetting the commission of offences.
In Ayub v. S.N. Sinha 1990 S.C. (Crl.) 664 also the Apex Court, after considering the above two decisions, held as follows:
We find considerable force in this submission. We have gone through the entire record. The learned Counsel appearing for the State could not place any material from which it can be inferred that the petitioner was a habitual offender. No doubt a lengthy counter is filed in which it is repeatedly averred in general that the detenu was indulging in prejudicial activities but as already mentioned, only Crime No. 96/90 is pending investigation and from this alone we cannot infer that the petitioner is a ''dangerous person'' within the meaning of Section 2(c) of the Act. To satisfy ourselves we have also carefully perused the FIR in Crime No. 96/90 and the complaint annexed to the same. The main allegation against the detenu was that he, out of sudden excitement, fired the revolver and as a result of which one Mehbub Khan received injury on his leg and again he fired a shot into the air and that he and his associates were moving around in a jeep threatening the people in the area. But in the order passed by the learned Sessions Judge on March 13, 1990 while releasing the petitioner on bail, it is noted that the said Mehbub Khan had no fire arm injury at all and as a matter of fact, the public prosecutor conceded the same. The learned Sessions Judge had also noted that no medical evidence is produced to prove that anyone was injured during the alleged occurrence. If such is the only crime pending in which the detenu is alleged to have participated, it can by no stretch of imagination be said that he comes within the meaning of ''dangerous person'' and the conclusion drawn by the detaining authority are bereft of sufficient material as required u/s 2(o) of the Act. This betrays non-application of mind by the detaining authority. Consequently, the grounds on which the detention order is passed, are irrelevant and non-existing. These are the reasons which weighed with us for not upholding the detention.
In Kumari v. The State of Tamil Nadu, etc. 1988 L.W. (Crl.) 117 this Court has also held as follows:
In our view, merely stating that the detenu has committed offences and they are being investigated is not sufficient to hold that he habitually commits offences. Something more is necessary, and that may be proof of convictions or something else.
In Lakshmi v. The Commissioner of Police, Egmore, Madras 1985 L.W. (Crl.) 165 & 167 a Bench of this Court also considered the definition of the word "goonda" and held as follows:
A reading of S.3 shows that the State Government may, if satisfied with respect to any bootlegger or drug offender or goonda or immoral traffic offender or slum grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary to do so, make an order directing that such person be detained. The words "acting in any manner prejudicial to the maintenance of public order" in the case of goondas, have been defined in S. 2(a)(iii) to mean that the goonda is engaged or is making preparations for engaging in any of his activities as a goondas which affect adversely, or likely to affect adversely, the maintenance of public order. There is a plethora of authorities to define as to what act amounts to affecting advesely the maintenance of public order and it is not necessary to go into them. All criminal acts are not likely to affect adversely the maintenance of public order. If, for example, a young man goes to a massage parlour and makes overtures to the girls attending on him, he may be committing an offence, but it does not affect adversely the maintenance of public order, if, on the other hand, the same man stands on a pavement in a busy locality and makes overtures to every passing woman, it would cause apprehension in the minds of women and he can be said to be engaged in an activity which affects adversely the maintenance of public order. It is therefore, manifest that it is not every goonda who can be detained under the Act but only that goonda who he is engaged or is making preparation for engaging in any of his activities as a goonda which affect adversely or is likely to affect adversely the maintenance of public order, who can be detained. In other words, the detaining authority has to first find out whether a person is a goonda or a bootlegger, or a drug offender or a slum grabber in the first instance and if he wants to detain any of them, he has to find out whether that person has acted in any manner prejudicial to the maintenance of public order. The detaining authority has therefore to enumerate certain cases or instances to show that the person who is to be detained as a goonda under the Act is a person who by himself or as a member or a leader of a gang, has habitually committed offences or has attempted to commit or has abetted the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.
It is clear from the ratio laid down in the above decisions that the expression ''habitually'' means ''repeatedly'' or ''persistently'' and further it implies continuity of similar repetitive acts. Only in cases where the detenu repeated persistently in similar acts, habit can be inferred and from the aggregate similar acts or omissions he can be termed as habitual criminal so as to attract the definition of "goonda". In order to attract the provisions of this Act, if it is alleged that the detenu indulged in single incidents which is the basis for holding the detenu as goonda the detenu was detained on the basis of the ground case as well as the 2nd adverse case which also took place on the same date, and in the course of the same transaction we are of the view that he cannot be charactrised as "goonda" within the meaning of Section 2 (f) of the Act. Hence, we find that the impugned order is vitiated on the ground that there is no material to hold that the detenu is a goonda as per the definition in Section 2 (f) of the Tamil Nadu Act 14 of 1982, in order to detain him u/s 3 thereof. Hence the impugned order is vitiated on this ground.
As regards the second ground which relates to the consideration of representation, even according to the learned Additional Public Prosecutor, though no counter has been filed by the 2nd respondent, the representation of the detenu dated 12.2.1992 was received by the Government on 17.2.1992, which was forwarded to the 1st respondent on 20.2.92 calling for parawar remarks. After obtaining the parawar remarks of the Sponsoring Authority, the 1st respondent sent a report and the same was received by the Government on 28.2.1992. The file was put up before the Under Secretary on 13.3.1992. The Deputy Secretary dealt with the file on 14.3.1992 and the Secretary passed the file on 16.3.1992 and it was rejected on 17.3.1992. Even after excluding the holidays, there is an unexplained inordinate delay of 22 days in the disposal of the representation. Above all, there is absolutely no explanation for not attending to the file from 28.2.1992 to 13.3.1992 by the Secretariat. In this connection, our attention was drawn to the decision of the Apex Court in Gazi Khan alias; Chotia Vs. State of Rajasthan and another, . Wherein the delay was 7 days on the part of the Assistant Secretary to put up a note on the basis of the comments of the District Magistrate and the said delay was held by the Apex Court as inordinate and unexplained and that alone vitiated the order of detention. The ratio laid down in the above case squarely applies to the facts of the present case. Hence the impugned order is vitiated also on the ground of inordinate and unexplained delay in the consideration of the representation, which is in breach of the mandate under Article 22 (5) of the Constitution of India. On this ground also, the impugned order is liable to be quashed. Thus in view of the finding on the above two grounds the impugned order is vitiated.
In the result, the writ petition is allowed, the impugned order of detention is quashed and the detenu is directed to set at liberty forthwith unless he is required in connection with any other case.