P. Kandaswamy vs State of Tamil Nadu and others

P.S. Mishra, J.—Petitioner''s son by name Subburu alias Subramani alias Subramaniyam, aged about 22 years, has been detained u/s 3(1)

of the Tamil Nadu Prevention of Dangerous Activities of Book-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders

and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982). It is said that the petitioner''s son assaulted one Nagarajan, resulting in his death on

13-11-1992, along with some other persons, in which case, a charge-sheet has been filed on 15-2-1993 and the case has been committed for

Sessions trial. On 22-4-1993, it is said, he (petitioner''s son) and three others, kidnapped, wrongfully confined and assaulted Bhaskar, Sampath

and Kumar and attempted to murder Bhaskar. A police case is registered for the said offences against him and other. On 28-7-1993 he get

involved himself in yet another occurrence, which has been described as the ground case for detention by the respondents. At about 7 a.m. on that

day, one Mohan and his brother Suresh were standing before their house and talking to one Shahul Hameed. At that time, the petitioner''s son

came with a pen knife and threatened them in filthy language saying in Tamil as follows :

Vernacular Matter - Omitted.

However, Mohan, Suresh and Shahul Hameed went inside the house due to fear. Petitioner''s son chased them ""and trespassed into their house

and caused damage by breaking the Television set and Video Cassette Recorder kept inside the house. Thiru Mohan requested him to spare them;

but Thiru Subburu caught hold of the neck of Thiru Mohan with his left hand and attempted to cause his death by attempting to stab him with a

knife by saying ""Verancular Matter - Omitted"" but the stab fell on the right hand of Thiru Mohan and he sustained bleeding injury. Thiru Suresh and

Thiru Shahul Hameed tried to catch Thiru Subburu. Immediately Thiru Subburu pushed down Thiru Mohan and threatened them by shouting in

loud voice by saying ""Vernacular Matter - Omitted"" and ran out of the house. Thiru Subburu threatened the public, who had gathered outside the

house. On seeing Thiru Subburu armed with knife and on seeing his strocious rowdy behaviour, the public became feared and ran away due to

fear. It is said thereafter that, ""again Thiru Subburu threatened Thiru Mohan and other by shouting in a loud rowdy noise by saying ""Vernacular

Matter - Omitted"".

and left the place. Thiru Subburu has threatened the public that on his mere presence, the public became scared and due to this, a tense situation

prevails in the area. Mohan is said to have given a report, on which, it is said that a case u/s 307 of the Indian Penal Code and other ancillary

offences, has been registered. Petitioner''s son was arrested by the Inspector of Police on the same day and the knife was recovered from him in

the presence of two witnesses. He was produced before the Judicial Magistrate No. 5, Salem, on 28-7-1993 and was remanded in a Special Sub

Jail a remand prisoner.

A bail petition, it is said, had been moved on behalf of the petitioner''s son, which has, however, been dismissed by the Sessions Judge. In the

order, the detaining authority has however said :

As a detaining authority, I am aware that Thiru Subburu alias Subramani alias Subramaniyam is now lodged in Special Sub-Jail, Salem, as a

demand prisoner and he would be proceeded under the normal law. However, I am satisfied that his activities warrant his detention under the

Tamil Nadu Act 14/1982. The bail application dated 3-8-1993 by this Subburu alias Subramani alias Subramaniyam was dismissed by the

Principal Sessions Judge, Salem on 5-8-93. There is imminent possibility that he may come out on bail by filing bail application in the higher 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 activities prejudicial to the maintenance of

public order and therefore, I consider there is a compelling necessity to prevent him from indulging in similar offences. It is therefore necessary to

detain him in custody under Tamil Nadu Act 14/82, with a view to prevent him from acting in any manner prejudicial to the maintenance of public

order.

Learned counsel for the petitioner has drawn our attention to a decision of the Supreme Court in Mrs. T. Devaki Vs. Government of Tamil

Nadu and others, , in which case, a person, who was charged of a solitary assault on one individual, was considered for detention u/s 3(1) of Act

14 of 1982 and the judgments of this Court in Rajendran alias Giri v. State of Tamil Nadu, 1991 LW (Cri) 582; S. Suresh Babu v. State of Tamil

Nadu, 1991 LW (Cri) 463; Paul Pandi Vs. The State of Tamil Nadu and others, and an unreported judgment in Kannan alias Kannappan alias

Great Kannappan v. State of Tamil Nadu W.P. 16381 of 1990 judgment dated 27-2-1991 on the subject, to suggest and contend that ''public

order'' for the purpose of preventive detention law, must not always be quoted with every disturbance caused to the public at large, that there is

some element of disturbance, as has been indicated in the pronouncements of the Court, caused to the public order by every violation of law even

if such violation is directed against one or more individual but unless the violence is such that it would have created alarm of a kind, which affects

the even-flow of life, it will not attract the ''public order'' clause of the Act of a goonda for his detention under Tamil Nadu Act 14 of 1982.

Learned Additional Public Prosecutor has however drawn our attention to the two judgments of the Supreme Court, one in the case of Smt.

Victoria Fernandes Vs. Lalmal Sawma and others, and the other in the case of Mrs. Harpreet Kaur Harvinder Singh Bedi Vs. State of

Maharashtra and another, to suggest and contend that there may not be any departure from the distinction between the areas of ''public order'' and

''law and order'' in the various judgments of the Courts, including the Supreme Court, but it has to be applied on the facts of each case to examine

whether the Court will find any fault with the subjective satisfaction of the detaining authority on its own estimation of the potentiality of the act of

violence of the detenu to justify his detention for the reason that his activities would be prejudicial to the maintenance of public order. If we borrow

the words from the judgment of the Supreme Court in the case of Smt. Victoria Fernandes Vs. Lalmal Sawma and others, , the distinction between

''law and order'' and ''public order'' has to be understood as follows :

The distinction between ''law and order'' and ''public order'' has been explained by this Court time and again. It has been pointed out that while

the expression ''Law and order'' is wider in scope in as much as contravention of law always affects order, while ''public order'' has a narrower

ambit and ''public order'' would be affected by only such contravention which affects the community or the public at large. Public Order is the even

tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ''law and order'' and

''public order'' is one of degree and extent of the teach of the act in question on society. It is the potentiality of the act to disturb the even tempo of

life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a new

individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only. It is the length, magnitude

and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting ''public order'' from that

concerning ''law and order''. The question to ask is does it lead to disturbance of the current life of the community so as to amount to 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 its facts (See Dr. Ram Manohar Lohia Vs. State of Bihar and Others, ; Arun Ghosh Vs. State of West Bengal, ; Ashok Kumar Vs. The

State (Delhi Administration), ; Ashok Kumar Vs. Delhi Administration and Others, ).

The above is the view that has been reiterated in the judgments of this Court in Paul Pandi Vs. The State of Tamil Nadu and others, ; S.

Subhash Babu''s case 1991 LW (Cri) 463 and Rajendran''s case 1991 LW (Crl) 582. In the unreported judgment of this Court in Kannan v. State

of Tamil Nadu W.P. No. 16381 of 1990 order dated 27-2-1991, it is said as follows :

In catena of decisions, this Court as well as the Supreme Court has held and pointed out that every disorder is not disturbance to public order.

The statement of law in the case of Dr. Ram Manohar Lohia Vs. State of Bihar and Others, by the Supreme Court has been so often quoted and

repeated by the Courts that it will be difficult for any person to support that this approach of the Court is not known. Detaining authority, in

particular, is expected to know when to take recourse to preventive detention law as an exception to the guarantee of freedom under Article 21 of

the Constitution of India read with Article 22(1) and (2) thereof .... The said statement of law once again been repeated by the Supreme Court in

Mrs. T. Devaki Vs. Government of Tamil Nadu and others, . It is case, in our opinion in which, before deciding to detain the petitioner, the

detaining authority could have bestowed some more considerations to this aspect of the law ....

In Mrs. Harpreet Kaur Harvinder Singh Bedi Vs. State of Maharashtra and another, , the Supreme Court has dealt with a case of a bootlegger,

who, in furtherance of his activities and to escape from the clutches of law, tried to run over, by his speeding vehicle, the police party, which tried

to signal him to stop, exhorting all the time that he would ill anyone who would come in his way and he continued to drive in a reckless speed and

dashed against a pedestrian causing injuries to him, where again, he exhorted that anyone who would come in his way would meet his death. Four

witnesses, who agreed to give statements to the police on condition of anonymity, clearly stated that they would not depose against the detenu for

fear of retaliation as the detenu had threatened to do away with anyone who would depose against him. The Supreme Court, on that basis, without

for a moment entertaining any idea other than the above principles of law, as stated in the aforementioned case and various other cases, including

the Constitutional Bench judgment in the case of Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, , has said that the activities

of the detenu, therefore, were not merely bootlegging but went further to adversely affect the even-tempo of the society by creating a feeling of

insecurity among those, who were likely to depose against him, as also the law enforcement agencies.

Besides the above cases, in yet another case of Smt. Kamalabai and others Vs. The State of Karnataka, the Supreme Court has taken note of

the attack by the detenu and others on the police party and said :

We cannot say that this is a stray act affecting law and order. Catching hold of a Sub-Inspector and threatening him in a public place like that

naturally would have created panic in the locality. We cannot say that the ground has no nexus to the public order.

In the light of the principles of law, as above as pointed out by the Supreme Court, we have to approach the instant case by posing to ourselves,

whether the detaining authority has asked the question. Does it lead to disturbance of the current life of the community, so as to amount to a

disturbance of the public order or does it affect merely an individual living, or the tranquillity of the society disturbed or alternatively, whether he has

kept in mind the distinction between the areas of ''law and order'' and ''public order'' which is one of degree and extent and the reach of the act in

question on society. We have seen in the grounds of detention the antecedents of the petitioner''s son, who once in November, 1992, has allegedly

committed homicide and in April, 1993, caused damage to one person and assaulted at least two others. He has been alleged to have committed

the act of assaulting Mohan, when he was standing at the door of his house along with his brother and was talking to one Shahul Hameed, a friend

of his. The assault by the detenu has been described as an act intended to kill Mohan, but the injury was by a pen knife and in the hand of the

victim.

Those, who are responsible for the maintenance of law and order and who are primarily concerned with maintaining the even-tempo of the life

of the people in the State as well as in different localities of the State can no doubt find themselves concerned with the activities of a person like the

son of the petitioner, who appears to have little regard for the order of the society, and who can kill another person without any provocation and/or

without any concern for the life of another. This concern of the law enforcing authorities can be appreciated by taking notice of the fact that any

disturbance in the even tempo of life in any locality is focussed directly on them and they alone take the blame of the activities of anti-social

elements. The Detaining Authority as well as the State Government, however, are charged not only with the responsibility of making the law

enforcing agencies effective and ensure that there is no disturbance of the public order, but also of ensuring the guarantees to the individuals under

Article 21 of the Constitution of India and see that the preventive detention law is not abused as a substitute for the laws, which deal with the

individual crimes and every opportunity is afforded to the accused to defend himself, both on facts as well as on law. The task given to them is not

easy. The dividing line, as we have noticed above, between the acts, which remain within the realm of ''law and order'' and do not go beyond to

affect the even tempo of life and the acts, which affect the even tempo of life, is very thin and the person, who has to deliver instant orders of

detention of a person leading to deprivation of his liberty without trial and branding him as a goonda for even, is required to be ever vigilant and

conscious of his duty to, on the one hand, prevent unlawful activities of the goondas, which affect the even flow of life and, on the other hand, that

the individual should be left to be dealt with in the court of ordinary procedural law, so that he is not deprived of his personal liberty, save in

accordance with the procedure prescribed by law.

Keeping that concern in our view, when we approach the subject in the instant case and see the acts of the detenu, we are inclined to go by the

view expressed in Mrs. T. Devaki Vs. Government of Tamil Nadu and others, ; Rajendran''s case 1991 LW (Cri) 582; Suresh Babu''s case 1991

LW (Cri) 463; Paul Pandi Vs. The State of Tamil Nadu and others, and Kannan''s case W.P. No. 16381 of 1990 order dated 27-2-1991 and

hold that the petitioner''s son is not one, who can be said to have committed such act, which has created disturbance to the even tempo of life to

the extent that the ordinary law of the land cannot effectively take care of his activities.

For the reasons, as above, we are inclined to interfere with the detention of the son of the petitioner and accordingly quash the order in C.M.P.

No. 152/GOONDAS/93 (C2) dated 10-8-1993 on the file of the 2nd respondent and direct the respondents to release the petitioner''s son

Subburu alias Subramani alias Subramaniyam forthwith, if not wanted in connection with any other case.

Petition allowed.