Rakkamma vs The State of Tamil Nadu

Sengottuvelan, J.—The above writ of habeas corpus is filed by Mrs. Rakkamma, the mother of the detenu Pasungili alias Veerapandi, who is detained as per the order of the Collector and District Magistrate, Madurai, in C.M.P. No. 11/85, dated 16-6-1985, under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act 14 of 1982, hereinafter referred to as ''the Act''. The detenu had come for adverse notice in the following cases:

The detenu was found guilty under Sections 147, 323, 427, read with 149 I.P.C. and was sentenced to undergo rigorous imprisonment for three months, on each count, the sentence to run concurrently as per the judgment of the Judicial Second Class Magistrate No. 1, Madurai in C.C. No. 1 149/77, dt. 30-1-1978;

On 16-1-1984 at 11.00 p.m. when one Palaniammal came out of her house to answer calls of nature, the detenu, with intention of committing rape on her, caught hold of her and bit her lips and also her breasts and voluntarily caused hurt to her. He thereby outraged her modesty and forcibly attempted to rape her and when she refused and resisted the detenu got wild and with an intention to murder her tried to strangulate her neck with both of his hands. On seeing him trying to kill Palaniammal, the daughter and mother of the victim came to her rescue and the detenu threatened to murder them. On a complaint by Palaniammal a case was registered u/s 341, 323, 354, 307, and 376 read with 511 I.P.C. and the case was taken on file in P.R.C. No. 14/84 on the file of the Judicial Magistrate No. 2, Madurai, and the case is committed to session and the same is pending in S.C. No. 164/84 on the file of the Second Additional Sessions Judge, Madurai.

The ground case on which the order of detention is passed is that on 6-5-1985 at 18-30 hours when Paramasivam was going towards the Padithurai Bus Stop at Arappalayam Main Road, the detenu waylaid him, caught hold of his waist and demanded him to pay a sum of Rs. 5/- to purchase arrack. Paramasivam replied that he had no money. Immediately the detenu beat Paramasivam with his hands and caused injury on his chin and chest. He also took out a knife from his waist and threatened Paramasivam by saying that nobody in this area refused money to him, and tried to stab him, Karuppusamy, Meenakshimuthu, Rajendran and others came to the rescue of Paramasivam and the detenu leaving Paramasivam attempted to stab the above said three persons. The detenu also created a scene from which the people in the vicinity ran away. Pandy, the owner of the Tea Stall and Raju Thevar, the owner of the Parotta stall closed their stalls out of fear and ran away. The detenu armed with knife in his hand raised a threatening loud noise that if anybody reported the matter to the police he will do away with those persons. As a result of the threat the nearby shop-keepers closed their shops and ran away. The detenu also threatened the shop-keepers and the members of the public and created alarm and a feeling of insecurity in the minds of the public. Paramasivam made a complaint to the B-6 Madurai Police Station and a case in Crime No. 668/85 u/s 341, 387, 323 and 506(ii) I.P.C. was registered. By committing the abovesaid grave offences the detenu created an alarm and a feeling of insecurity in the minds of the people in that area and thereby acted in a manner prejudicial to the maintenance of public order.

The detaining authority on being subjectively satisfied that if the detenu is let to remain at large he will indulge in further activities prejudicial to the maintenance of public order and also bearing in mind the fact that the recourse to normal criminal law would not have the desired effect of effectively preventing the detenu from indulging in activities prejudicial to the maintenance of public order, considered it necessary to detain the detenu in custody under the provisions of the Act and passed the abovesaid order. The order of detention was served on the detenu on 4-7-1985. Advisory Board confirmed the order of detention and the same was approved by the Government on 26-6-1985.

In the affidavit filed in support of the writ petition the Petitioner raised the following contentions:

The cases in which the Petitioner came for adverse notice and referred to in the order of grounds of detention happened in the year 1978, and as such the said grounds an stale ones and the same has no nexus to the ground case. The sentence of imprisonment have been reduced to one of fine be the appellate authority and this has not been brought to the notice of the detaining authority;

The fact that the detenu is already under arrest in respect of the ground case had not been brought to the notice of the detaining authority and this material had been deliberately withheld from the knowledge of the detaining authority;

There has been no application of mind by the detaining authority and the order is nothing but a repetition of the report forwarded by the initiating authority;

The copies of the relevant papers referred to in the detention order had not been granted;

The recourse to normal criminal law itself is sufficient to prevent the recurrence of the alleged activities of the detenu;

By no stretch of imagination the detenu could be termed as a ''goonda'' and none of the acts alleged in the grounds even if proved, would in any manner affect prejudicially the maintenance of public order;

The detenu was informed about the Advisory Board''s meeting on 12-7-1985 by the Joint Secretary to Government of Tamil Nadu, dated 7-7-1985. There was no communication from the Advisory Board informing the detenu that the Advisory Board is going to meet on 12-7-1985 in Madras. If the detenu was informed by the Advisory Board about the personal hearing as well as oral representation and written representation, the detenu could have submitted a written representation to the Advisory Board. The detenu has been denied a fair opportunity to put forth his case before the Advisory Board.

At the time of the argument learned Advocate for the Petitioner relied upon a Division Bench judgment of this Court in W.P. No. 8462 of 1985, dated 30-1-1986, wherein the Division Bench held that in order to classify a person as a ''goonda'' u/s 2(f) of the Act there must be at least two convictions by a criminal court and submits that since in this case there is only one conviction the detenu cannot be termed as a ''goonda'' under the Section 2(f) of the Act.

The learned Public Prosecutor in meeting these points argues as follows:

The Tamil Nadu Act 14 of 1982 deals with five categories of persons, viz.,

(i) bootleggers;

(ii) drug-offenders

(iii) goondas

(iv) immoral traffic offenders; and

(v) slum grabbers

One common feature of all these offenders is, that except in the case of Goondas, habitual commission or attempt to commit or abet, is not insisted upon. Generally speaking, preventive detention is not meant for ex-convicts. Only in a case falling u/s 75 of the I.P.C. ex-convict is given an enhanced punishment.

As to what is the meaning of ''habitual offender'' can be gathered from the Tamil Nadu Restriction of Habitual Offenders Act, 1948. In W.P. No. 12016 of 1984 an habitual offender under this Act came to be dealt with, as seen from 1985 Writ Law Reporter 710 Phoola v. State 1985 L.W. (Crl.) 363.

On an analysis of the provisions of Section 2(4) of the Tamil Nadu Restriction of Habitual Offenders Act:

(1) A man who has been sentenced for three offences is called an habitual offender. Therefore, the legislature of Tamil Nadu was very much aware as to what was meant by ''habitual offender''. If under the Tamil Nadu Act 14 of 1982, it had not been chosen to insist on such a qualification of conviction it is not open to the Petitioner to insist upon previous convictions before he could be called the ''habitual offender''.

(2) In the guise of interpretation it is not open to the Court to supply the omission, when the omission under the Tamil Nadu Act 14 of 1982 is purposeful. Therefore, it follows the question to be addressed is, when could it be said that on the materials whether anyone of the five persons, who have dealt with under the Act, has committed the acts attributed to them. In the case of a Goonda the repetitive acts are necessary. That is all. But it cannot import the consideration of conviction. In support of this submission reliance is placed on Haradhan Saha Vs. The State of West Bengal and Others, On this basis it is contended that preventive detention is based on a reasonable prognosis of future behaviour of a person based on his past conduct in the light of surrounding circumstances.

(3) Relying on Sasti alias Satish Chowdhary Vs. State of West Bengal, it is urged that even in a case of discharge by a Magistrate an order of preventive detention could be passed.

If convictions were to be insisted upon as a condition precedent for preventive detention, it will take a long time to get a person convicted, and the Very purpose of the preventive detention will be thwarted.

Even in the Supreme Court''s ruling, which is relied on by the learned Counsel for the Petitioner, viz., Vijay Narain Singh Vs. State of Bihar and Others, a careful reading of Section 2 of the Bihar Act makes it clear that under Clauses (i) to (iv), what is talked of is habitual commission of crime, while under clause (v) alone it is stated, "who has been convicted under the Arms Act". That very section makes out a clear distinction between ''commission'' and ''conviction''.

A careful study of Sasti alias Satish Chowdhary Vs. State of West Bengal, reveals that it cannot be said to lay down that a conviction is necessary. The ratio is:

1) There must be proximity with regard to the events;

2) The continuity of acts must be of the same variety, because what came for interpretation was the word ''habitually'';

3) As to the true scope of preventive detention, Anil Dey Vs. State of West Bengal, delineates the same.

Therefore, the consideration applicable to criminal jurisprudence cannot be imported. To the same effect is State of Gujarat Vs. Adam Kasam Bhaya, it was held that the High Court was wrong in erroneously importing the rule of Criminal jurisprudence to a case of preventive detention. There is no question of proof beyond reasonable doubt in such matters.

On the same line Ashok Kumar Vs. Delhi Administration and Others, , while dealing with a case of preventive detention under the National Security Act, 1980, states that the preventive detention is devised to afford protection to the society and the object is not to punish a man. Therefore preventive detention is an executive act, on the materials placed before the administration, the satisfaction being arrived at honestly. Under the Code of Criminal Procedure, preventive measures are contemplated under Chapter VIII from Section 106 onwards, which speaks of security for maintaining peace. Then Sections 107 to 110 deal with binding over for maintenance of peace. In all these cases, mere information will be enough. Section 110 of the Code uses the ''habitually''. That has come for interpretation in AIR 1981 S.C. 647 wherein it was stated, ''habitually'' means ''evidence of general repute''. The same principle has come to be stated in W.P. 3746 of 1985 of this Court. With regard to this it is submitted that the Division Bench has imported the principle of criminal jurisprudence throwing the additional safeguards under the law of preventive detention. It is well known that in cases of preventive detention, law affords sufficient safeguards, in each of the enactments, in the light of Article 22 of the Constitution, thus:

1) Originally on a prima facie satisfaction on the materials, the detaining authority passes an order of detention;

2) Thereafter the same is approved by the executive;

3) This approval is placed for consideration before the Advisory Board independently by men trained injudicial lines;

4) After the approval of the Advisory Board, the matter goes back to the executive for confirmation thereof.

If these are the safeguards afforded, there is absolutely no scope for importing further safeguards of previous conviction for ordering preventive detention.

The Division Bench which originally heard the argument was not able to agree with the proposition laid down in W.P. No. 8462 of 1985, dated 30-1-1986 that a person cannot be classified as a ''goonda'' as defined in Section 2(f) of the Act unless he had suffered at least two previous convictions in criminal cases punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code and passed the following order on 31-3-1986:

One of the main points urged is that a person cannot be classified as a ''goonda'' within the meaning of the Section 2(f) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, unless there are at least two convictions as against him. According to the learned Counsel for the Petitioner, it is not possible to classify the Petitioner in the instant case as a goonda, u/s 2(f) of the said Act. In support of the same, he cites the judgment in W.P. No. 8462 of 1985. With great respect, we are unable to share that view. The learned Public Prosecutor also brings to our notice that in more than 20 cases, the same view was taken by the Division Bench. Having regard to the importance of this question and in view of our disagreement, we are of the view that this should be referred to a larger Bench. We direct the papers to be placed before Our Lord, the Chief Justice, for suitable Orders.

Learned Counsel for Petitioner states that the Petitioner has got only two more months to serve, since by then the order of detention will come to an end by efflux of time and, therefore, he prays for the matter to be heard at an early date. His request is noted.

Accordingly the matter was referred to a bench of three Judges before whom the arguments were addressed on the preliminary question.

The question that has been referred to the decision of the Full Bench is:

Whether in order to attract the definition of ''goonda'' in Section 2(f) of the Act one must have been convicted at least twice by a criminal court or whether it is sufficient that he is found to have committed repetitive similar acts proximate in point of time which are prejudicial to the maintenance of public order.

Before entering into a discussion on this question, the relevant provisions of the Act will have to be considered in the proper perspective.

Section 3 of the Act enables the State Government to make an order directing the detention of Bootleggers, Drug-offenders, Goondas, Immoral Traffic Offenders and Slum grabbers, to prevent them from acting in any manner prejudicial to the maintenance of public order.

Section 2(a) of the Act defines ''acting in any manner prejudicial to the maintenance of public order'' and is as follows:

Definitions-In this Act, unless the context otherwise requires-

(a) "acting in any manner prejudicial to the maintenance of public order" means-

i) in the case of bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order;

ii) in the case of a drug-offender, when he is engaged, or is making preparations for engaging in any of his activities as a drug-offender, which affect adversely, or are likely to affect adversely, the maintenance of public order;

iii) in the case of goonda, when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order;

iv) in the case of an immoral traffic offender, when he is engaged or is making preparation for engaging, in any of his activities as an immoral traffic offender, which affect adversely, or are likely to affect adversely, the maintenance of public order;

v) in the case of an slum grabber, when he is engaged or is making preparations for engaging, in any of his activities as an slum grabber, which affect adversely, or are likely to affect adversely, the maintenance of public order.

Explanation: For the purpose of this Clause (a) public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this Clause (b) directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health;

Section 2(f) of the Act defines ''goonda'' which is as follows:

2(f) ''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 XLV of 1860).

The purpose of the detention as mentioned in Section 2 of the Act and the statement and objects set out in the preamble clearly indicate that detention is for prevention of the abovesaid classes of persons from indulging in dangerous activities prejudicial to maintenance of public order. Several similar Acts had been enacted by the Union of India as well as the States for the same purpose and cases have come before Courts where the aim and objects of such enactments, had to be considered. In proceedings under the above Act the preventive aspect is emphasised rather than the punitive aspect of punishing the criminals. In the case reported in Sasti alias Satish Chowdhary Vs. State of West Bengal, a case arising under the Maintenance of Internal Security Act, 1971 enacted with a view to prevent persons from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it has been held by the Supreme Court that even if there is no sufficient evidence admissible under the Indian Evidence Act for securing a conviction of a particular person, if his activities are of such a nature as to justify an order of detention to achieve the object of the Maintenance of Internal Security Act, there will be no legal bar to make an order of detention. In the case reported in Haradhan Saha Vs. The State of West Bengal and Others, a case arising under the Maintenance of Internal Security Act, 1971, a Full Bench (consisting of five judges) of the Supreme Court observed as follows:

The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove(Sic) (on proof of?) his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of the Act to prevent.

Constitution has conferred rights under Article 19 and also adopted preventive detention to prevent the greater evil of elements imperilling the security, the safety of the State and the welfare of the Nation. It is not possible to think that a person who is detained will yet be free to move or assemble or form association or unions or have the right to reside in any part of India or have the freedom of speech or expression. Suppose a person is prosecuted of an offence of cheating and convicted after trial, it is not open to him to say that the imprisonment should be tested with reference to Article 19 of its reasonableness. A law which attracts Article 19 therefore must be such as is capable of being tested to be reasonable under Clauses (2) to (5) of Article 19.

In the case reported in State of Gujarat Vs. Adam Kasam Bhaya, a case arising under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, it has been held that the High Court ought not to import the rule of criminal jurisprudence that the guilt of an accused must be proved beyond a reasonable doubt in the matter of detention. In the case reported in Haradhan Saha Vs. The State of West Bengal and Others, a case arising under the Maintenance of Internal Security Act, 1971, the Supreme Court held that merely because a detenu is liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. The Supreme Court also held that the preventive detention is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.

The provisions of Indian Penal Code deals with punitive action in respect of commission of crimes whereas Special Enactments dealing with public order is confined to areas different from the procedure laid down in the Indian Penal Code. The Supreme Court in the case reported in Ashok Kumar v. Delhi Administration and Ors. 1983 M.L.J. (Crl.) 165 observed as follows:

The true distinction between the areas of ''public order'' and ''law and order'' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of ''law and order'' and ''public order'' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.

The above pronouncement of the Supreme Court brings about a well marked distinction between the punitive action in case of offences under the Indian Penal Code, where the individuals are concerned, and the preventive detention for the maintenance of public order where the peace and tranquillity of the members of the public is at stake. It is also seen that the norms to be applied in the preventive detention cases is the subjective satisfaction of the authority that detention of a particular person is necessary for maintenance of public order, while in a punitive action the offence must be proved beyond reasonable doubt. The requirement of one cannot be telescoped into the other is evident from the observations in the above decisions. Bearing in mind these principles we will have to consider the question whether to declare a person as ''goonda'' at least two previous convictions are necessary.

According to Section 2(f) of the Act, a person to be termed as ''goonda'' must by himself or as a member of the gang (1) habitually commits the commission of offences; (2) habitually attempts to commit such offences; or (3) habitually abets the commission of such offences. The special distinction made in the Act in the case of ''goonda'' is brought out by using the word ''habitually'' which is not there in the case of ''bootlegger'' or ''immoral traffic offender'' and others. In the definition of ''goonda'' it has not been laid down that in order to bring a person within the definition he must have been convicted for any criminal offences. The phrase ''habitually commits'' may denote the commission of offences for which proof beyond doubt to secure a conviction under the I.P.C. as well as offences which had been committed for which the standard of proof is not sufficient so as to warrant a conviction under the provisions of Indian Penal Code. Hence even considering the phrase ''habitually commits'', bearing in mind the legislative intent in enacting Act 14 of 1982 one cannot come to a conclusion that a previous conviction is a sine qua non for declaring a person as ''goonda'' as defined under the Act. In addition to this, we have the second limb of the definition ''habitually attempts to commit offences''. Attempt to commit offences is not punishable under the provisions of the Indian Penal Code, except in certain classes of offences. But, a person who attempts to commit offences can be termed as ''goonda'' under the definition. In this view also it cannot be said that a previous conviction is essential to bring a person within the definition of ''goonda'' as per the Act.

In this connection we may usefully refer to the Tamil Nadu Restriction of Habitual Offenders Act of 1942. Section 2(4) may now be extracted:

''Habitual offender'' means a person who, before or after the commencement of this Act, has been sentenced to a substantive term of imprisonment, such sentence not having been set aside in appeal or revision, on not less than three occasions, for one or another of the offences under the Indian Penal Code set forth in the schedule, each of the subsequent sentences having been passed in respect of an offence committed after the passing of the sentence on the previous occasion.

The order made in W.P. No. 8462 of 1985 on 30-1-1986 by a Division Bench of this Court, which the learned Counsel for the Petitioner cited, does not contain any reasoning as such for the proposition that in order to bring a person within the definition of ''goonda'' as per Section 2(f) of the Act he must have at least two convictions to his credit. Learned Counsel for the Petitioner contends that the conclusion arrived at by the Division Bench in W.P. No. 8462 of 1985 is based upon the reasoning of the Supreme Court in the case reported in Vijay Narain Singh Vs. State of Bihar and Others, as interpreted by the same Division Bench in W.P. No. 3746 of 1985, dated 9-1-1986. This argument necessitates a detailed consideration of the judgment reported in Vijay Narain Singh Vs. State of Bihar and Others, and the interpretation placed on the same by the Division Bench in W.P. No. 3746 of 1985. In the abovesaid decision of the Supreme Court the definition of "Anti-social element" as per Section 2(d) of the Bihar Control of Crimes Act 7 of 1981 came up for consideration. The definition of "Anti-social element" in Section 2(d) is extracted in page 1338 and the same is as follows:

(d) "Anti-social element" means a person who is-

(i) 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 of the Indian Penal Code; or

(ii) Habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956; or

(iii) Who by words or otherwise promotes or attempts to promote on grounds of religion, race, language, caste or community or any other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language groups of castes or communities; or

(iv) has been found habitually passing indecent remarks to or teasing women or girls; or

(v) who has been convicted of an offence under Sections 25, 26, 27, 28 or 29 of the Arms Act, 1959.

The definition of "Anti-social element" contains all the ingredients in the definition of ''goonda'' in the Act. In the abovesaid Supreme Court decision the concerned person was charged before the Court of Session for offences punishable u/s 302 read with Sections 120-B, 386 and 511, I.P.C. and was also released on bail by the Court and before he could secure his release from jail as per the order of bail, an order of detention was passed under the Bihar Control of Crimes Act 7 of 1981 on the ground that the accused is an "Anti-social element". The said order of detention was Questioned by the accused. Venkataramiah, J., in the course of the majority verdict laid emphasis on habitual commission attempts to commit or abetment of such offences punishable under the Indian Penal Code and observed 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 connotes 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.

Having defined the term "habitually" Venkataramiah, J., examined the facts of the case and concluded that no case is made out for detention for the following reasoning:

In the present case the District Magistrate has relied on three incidents to hold that the Petitioner is an anti-social element. They are (i) that on April 15, 1975 the Petitioner along with his associates had gone to the shop of a cloth dealer of Bhagalpur Town armed with an unlicensed pistol and had forcibly demanded subscription at the point of a gun, and (ii) that on June 17/18, 1982 the Petitioner was found teasing and misbehaving with females returning from a cinema hall. The third ground is the criminal case now pending against the Petitioner in the Sessions Court. The first incident is of the year 1975. It is not stated how the criminal case filed on the basis of that charge ended. The next incident relates to the year 1982. The detaining authority does not state how the criminal case filed in that connection terminated. If they have both ended in favour of the Petitioner finding him clearly not guilty, they cannot certainly constitute acts or omissions habitually committed by the Petitioner. Moreover the said two incidents are of different kinds altogether. Whereas the first one may fall under Sub-clause (i) of Section 2(d) of the Act, the second one falls under Sub-clause (iv) thereof. They are, even if true, not repetitions of acts or omissions of the same kind. The District Magistrate does not appear to have applied his mind to the above aspects of the case. The third ground which is based on the pending Sessions case is no doubt of the nature of acts or omissions referred to in Sub-clause (1) of Section 2(d) but the interval between the first ground which falls under this Sub-clause and this one is nearly eight years and cannot, therefore make the Petitioner a habitual offender of the type falling under Sub-clause (i) of Section 2(d). When I say so, I do not certainly minimise the gravity of the offence alleged to have been committed by the Petitioner which is still to be tried by the Sessions Court. If the Petitioner is found guilty by the Court, he will have to be awarded appropriate punishment. But the point for consideration now is whether the filing of the charge-sheet is sufficient to bring the Petitioner within the mischief of the Act. The Court should examine the case without being overwhelmed by the gruesomeness of the incident involved in the criminal trial. It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case, falls quarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal Court, great caution should be exercised, in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal Court.

On this reasoning Venkataramiah, J., came to the conclusion that the accused in that case cannot be said to be an anti-social element. Nowhere in the majority verdict it has been stated that previous convictions are necessary to infer habituality in the matter of commission of offences. In the dissenting judgment of Sen, J., in paragraph 10, the following observation is found:

My learned brother Venkataramiah, J., is inclined to give a restricted meaning to the word ''habitually'' as denoting ''repetitive'' and he is of the view that no order of detention u/s 12(2) of the Act could be made on the basis of a ''single instance'', as a single act cannot be said to be forming the habit of the person. That is to say, the act complained of must be repeated more than once and be inherent in his nature. Further, he is inclined to think that action u/s 12(2) of the Act can only be taken in respect of persons against whom there are verdicts of guilt after the conclusion of trials. According to him, merely on the basis of institution of criminal cases a person cannot be labelled as an anti-social element. I find considerable difficulty in subscribing to either of his views.

After expressing the above view Sen, J., also proceeded to differ from the majority verdict that the instances cited by the detaining authority were not proximate in points of time and are not rationally connected with one another. According to the minority view of Sen J., the instances mentioned by the detaining authority are sufficient to warrant a detention of the detenu.

It is the abovesaid observation of Sen, J. which influenced the Division Bench in W.P. No. 3746 of 1985 for coming to the conclusion that in order to infer habitualness previous convictions by a criminal Court are necessary. The observation of Sen, J. is based upon the reasoning of Venkataramiah, J. in the course of the judgment that while the previous two grounds are not connected by proximacy of time the third ground also is uncertain in view of the fact that there is a possibility of the Sessions Court writing a verdict of not guilty. This observation prompted Sen, J. to observe that according to Venkataramiah, J. previous convictions are necessary and proceeded to disagree with the same. Sen, J. has only taken the observation of Venkataramiah, J. that there is a possibility of the accused being released in a criminal case to mean that Venkataramiah, J. felt the verdict of guilty is necessary to come to a conclusion that the detenu is liable to be detained. Venkataramiah, J. only referred to the possibility of a verdict of not guilty to emphasis his view that there is no substance in the ground of detention based upon the isolated act when the other acts are far remote in point of time. Venkataramiah, J. considered the possibility of acquittal in the isolated case and held such isolated case cannot be the basis of subjective satisfaction of the detaining authority. The majority verdict in the above case cannot be read out of context to support the proposition that in order to term a person as a habitual offender he must have suffered previous convictions without doing violence to the definition of ''anti-social element'' which does not give room for such an interpretation. The object of the Act also does not warrant such a conclusion. The conclusion of the Division Bench of this Court in W.P. No. 3746 of 1985 that the majority verdict laid down the proposition that in order to infer habitualness previous convictions are necessary is not warranted either on the basis of the majority judgment of Venkataramiah, J. or the minority verdict of Sen, J. in the case reported in Vijay Narain Singh Vs. State of Bihar and Others,

A Division Bench of this Court to which one of us was a party (K.M. Natarajan, J.) had an occasion to deal with the ambit of the word ''habitually'' occurring in Section 2(f) of the Act, in the case reported in Phoola v. State rep. by its Secretary to Govt. Madras 1985 Writ L.R. 710 : 1985 L.W. (Crl.) 363. The Division Bench considered the argument advanced in that case that in order to declare a person as ''goonda'' within the meaning of Section 2(f) of the Act he must have been convicted for more than once for offences punishable under Chapter XVI or Chapter XVIII or Chapter XXII of the Indian Penal Code, on the analogy of the definition of ''Habitual offender'' in Section 2(4) of the Tamil Nadu Restriction of Habitual Offenders Act, 1948, which is as follows:

''Habitual offender'' means a person who, before or after the commencement of this Act, has been sentenced to a substantive term of imprisonment, such sentence not having been set aside in appeal or revision, on not less than three occasions, (for any one or more of the scheduled offences) each of the subsequent sentences having been passed in respect of an offence committed after the passing of the sentence on the previous occasion.

Explanation: The passing of an order requiring a person to give security for good behaviour with reference to Section 110 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) shall be deemed to amount to the passing of a sentence of substantive imprisonment within the meaning of this clause.

In the course of the judgment the Division Bench observed as follows:

Under Section 3 of the Restriction of Habitual Offenders Act, the Government may, by notification, if they are satisfied that any person is a habitual offender, declare that he shall be subject to the provisions of this Act to such extent and subject to such restrictions, if any, as may be specified in the notification. The Schedule of the Act refers to certain offences under the Indian Penal Code. Suffice, it for our purpose to state that all the offences under Chapters 16, 17 or 22 of the IPC are not covered and only certain of them are covered. Therefore, that was a peculiar definition for the purpose of the Act. ''Goonda'' is defined in Section 2(f) of the Tamil Nadu Act 14 of 1982, as meaning 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 an offence punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860). It may be seen from this definition that in order to consider a person as ''Goonda'' it was not necessary for a conviction in one or more cases. We have already held in series of cases that, if a person is charged for an offence and that is pending in a Court or pending investigation, that could be taken into account for considering whether a person is a ''goonda'' or not for the purpose of the Act.

The reasoning of the Division Bench is in consonance of the definition of ''goonda'' as per Section 2(4) of the said Act.

Learned Public Prosecutor is correct in her submission that the Tamil Nadu Legislature was not unaware of what is meant by a ''habitual offender''. The Legislature must be attributed every wisdom that is due to it. If with the Act VI of 1948 before it, u/s 2(f) of the Tamil Nadu Act 14 of 1982, if it does not insist upon previous conviction for a ''goonda'' the omission must be held to be deliberate and not unintentional, to import the notions of criminal jurisdiction. In the guise of interpretation the court cannot add on to the Legislation, which it has chosen to positively leave out.

The previous verdict of guilt by the criminal court after regular trial is not insisted upon as an indispensable one for passing an order or detention in the following cases which arose under similar enactments providing for preventive detention. In the case reported in Dhanji Ram Sharma Vs. Superintendent of Police, North Dist, Delhi Police and Others, in dealing with a case under Punjab Police Rules, 1934, providing for opening of history sheet and making entries in a register maintained for that purpose, the Supreme Court observed that reasonable belief of the Police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under the relevant rules. At the same time the Supreme Court also observed that the mere belief is not sufficient and the belief must be reasonable and it must be based on the reasonable grounds. The Supreme Court also observed that the suspect may or may not have been convicted of any crime and that even apart from any conviction, there may be reasonable grounds for believing that he is a habitual offender. In the case reported in Ashok Kumar Vs. Delhi Administration and Others, the Supreme Court observed in a case arising under the National Security Act, 1980, as follows:

Those who are responsible, for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing it justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state.... There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose.

The view of the Supreme Court seems to be that even the cases where there is no possibility of conviction of the detenu because of the capacity of the detenu to overawe witnesses, can form the basis of detention. In the case reported in Anil Dey Vs. State of West Bengal, a case arising under the Maintenance of Internal Security Act, 1971, Krishna Iyer, J. observed as follows:

Even if the incident attributed to the detenu has some connection with the obnoxious activities, it should not be too trivial in substance nor too stale in point of time as to snap the rational link that must exist between the vicious episode and the prejudicial activity sought to be interdicted.

Vijay Narain Singh Vs. State of Bihar and Others, cannot be taken to lay down that a conviction is necessary. All that has been held is:

(i) there must be proximity;

(ii) the continuity of the Act of the same variety,

while interpreting the word "habitual". It also requires to be noted at this stage that Section 2 of the Bihar Act under Clauses 1 to 4 require ''habitual commission'', while Clause 5 says, "who has been convicted under the Arms Act",

(emphasis supplied)

Therefore, even here a clear cut distinction is maintained between ''commission'' and ''conviction''.

Under the law of Preventive detention, there is no scope for importing an additional safeguard of conviction. The enactment providing for preventive detention itself provides the following procedure:

(1) the order of detention passed by the detaining authority on a subjective satisfaction arrived at on the materials placed before it;

(2) the approval by the executive;

(3) the consideration by the Advisory Board independently by men trained injudicial lines;

(4) the ultimate confirmation of the order of detention by the executive.

Thus, we hold that there is no warrant as laid down by the Division Bench in W.P. No. 8462 of 1985 of this Court that a conviction is necessary for classifying the person as ''Goonda'' under the Tamil Nadu Act 14 of 1982. Accordingly we overrule the same.

After the judgment was rendered the learned Counsel for the Petitioner wants to make a note of the proceedings of the Court when the Full Bench commenced hearing of this case on 15-4-1986. At the time of commencement of the argument the learned Counsel for the Petitioner took a preliminary objection that since the Bench consisting of Mohan, J. and myself had disagreed with the view expressed in W.P.No. 8462 of 1985 the matter may be referred to a different Bench. The Bench expressed the view that it is keeping an open mind on the question and there is no need to refer the matter to a different Bench.

Pursuant to the above judgment of the FULL BENCH the matter was posted before the Division Bench comprising of Mohan, O.C.J., and Venkataswami, J., on 13th February, 1989 and the following order was passed.

ORDER: (13-2-1989)

As on today, the matter has become infructuous. Hence dismissed.