Saraswathi vs State of Tamil Nadu

Saraswathi, the Petitioner herein, impugns an order of detention passed under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (hereinafter called the Act), against her son one Balan, by the Commissioner of Police, Madras city, the second Respondent herein, and confirmed by the State of Tamil Nadu, the first Respondent, and seeks the issue of a writ of habeas corpus for securing the release of her son.

The impugned order of detention has been passed by the second Respondent on 30th June, 1984, and was served on the detenu who was already in remand pursuant to his arrest in Crime No. 457 of 1984 under Ss. 379, 336 (II) I.P.C. of C-1 Flower Bazar Police Station. The grounds of detention were furnished to him. His case was referred to the Advisory Board, but the Board saw no reason to recommend the release of the detenu. Thereafter, the Petitioner has filed this petition under Article 226 of the Constitution of India.

In the grounds of detention three cases u/s 379, I.P.C. in which the detenu was convicted have been referred to as materials which had brought him to the adverse notice of the second Respondent. The ground then proceeds to give the details of the specific instance on the basis of which the second Respondent deemed it proper to pass the impugned order of detention. It is stated that at about 4.30 p.m. on 26th June, 1984, the detenu''s associate one Ravi alias Aranthavai picked the pocket of one Sundaram who was boarding a bus at the Rattan Bazar bus stops. Sundaram raised an alarm and at once Ravi handed over the stolen money purse containing in it Rs. 31.50 np. to the detenu. Then, the detenu and Ravi started running along the road. Sundaram gave a chase to them and appealed to the members of the public to catch hold of the pick pockets. But the detenu and Ravi are said to have threatened the passers by not to come near. In order to terrify the members of the public the detenu and his associate are said to have picked up some bottles from bunk shops situate en route and broken them on the road. Eventually when the two culprits were overpowered by a police patrolling party coming in the opposite direction and the stolen money purse was recovered from the detenu. Thereafter, a case was registered against the two culprits and it is with reference to this instance the order of detention has been passed. The second Respondent has stated that the conduct of the detenu on the day in question clearly resulted in disruption of public order and as such if he were allowed to remain at large he would indulge in acts endangering public safety and maintenance of public order. The second Respondent also has stated that the normal course of law for the offence committed by the detenu would not be adequate to preserve public order and, as such, an order of preventive detention is called for.

Learned Counsel for the Petitioner assails the detention order on three grounds. The first is that the three instances referred to in the grounds of detention as material for bringing the detenu to the adverse notice of the police are all cases of the year 1980. All of them were cases relating to an offence u/s 379, I.P.C. All the three cases had been disposed on 4th December, 1980 by the 13th Metropolitan Magistrate in C.C. 18629 to 18631 of 1980. In all the cases the detenu had been convicted and released u/s 3 of the Probation of Offenders Act. The Petitioner''s counsel would urge that the detenu had been made to admit the offences on the inducement of the police and this fact is rendered clear because of various factors such as the continuous serial numbers of the cases, the disposal of the cases on the same day and the accused being released u/s 3 of the Probation of Offenders Act, instead of being sentenced to any term of imprisonment or fine. That apart, the Petitioner''s counsel would say that all the instances suffer from staleness because they relate to the year 1980, whereas the detention has been passed on 30th June, 1984 and there are no materials to show that during the intervening period the detenu had acted as a goonda. The second argument is that even if the detention order had been passed on the basis of the instance which took place on 26th June, 1984, that will not constitute an act endangering public safety and public order and as such the order of detention is not sustainable. The third contention is that the detaining authority had not supplied the judgment copies with reference to the three cases referred to as adverse instances against the detenu.

Learned Public Prosecutor controverts the argument by saying that the instances 1 to 3 have been referred to only for determining the character of the detenu as a goonda and as such the second Respondent was not bound to furnish the copies of the judgment in these cases. She further argued that apart from the three cases referred to in the grounds, the detenu had also come to adverse notice in two other cases, viz, C.C. 38540 on the file of the Executive Magistrate, Egmore, which resulted in an order being passed against the detenu under S 109, Cr P.C. on 28th September, 1981, and his being called upon to execute a bond for Rs. 100 and be of good behaviour during that period. The detenu was also involved in another case, viz., M.C.1833 on the file of the Executive Magistrate, Mylapore, Madras That was a case u/s 110, Cr. P.C. and on 12th November, 1983 the detenu had been bound over for a period of six months by means of a bond for Rs. 500 with one surety. The Public Prosecutor would therefore argue that even after the year 1980 the detenu has not been leading a good life but indulged in subversive acts. In so far as the instance on 22nd June, 1984 is concerned, the Public Prosecutor''s contention is that it was not merely a case of pick pocketing, but it was a case of the detenu and his accomplice threatening and intimidating the members of the public while making good their escape which resulted in disruption of traffic and closing down of the shutters of the shops, etc. and the fear instilled in the minds of the public.

On a consideration of the matter, we find that the order of detention cannot be sustained. The three instances which had brought the detenu to the adverse notice of the second Respondent are all of the year 1980. Though they have ended in conviction, the detenu has been practically let off because he has neither been sentenced to imprisonment nor called upon to pay fine, but has been dealt with u/s 4 of the Probation of Offenders Act. That apart, there is no evidence to show that the detenu has indulged in similar unlawful activities till 26th June, 1984 when he and his accomplice are said to have picked the pocket of one Sundaram. In as much as the three cases which had resulted in conviction were long prior to the specific instance reported to have taken place on 26th June, 1984, the detenu cannot be strictly treated as a goonda, because Section 2(f) of the Act defines goonda 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 abet the commission of offences, punishable under Chapter XVI or XVII or Chapter XXIII of the Indian Penal Code. As such, acts of goondaism at a point of time well removed from the last act of subversion will not entitle the detaining authority to treat a person as a goonda and pass an order of detention on the specific instance complained of. The argument of the public prosecutor that even during the years 1981 and 1983 the detenu had come to adverse notice in two cases relating to Ss.109 and 110, I.P.C. cannot improve matters for the State in any manner because they are not acts of goondaism as envisaged in Section 2(f) of the Act. Moreover, there is no reference to these cases and indeed there cannot be any reference to them in the grounds of detention. Hence the first contention of the Petitioner has to be sustained.

The second contention too merits acceptance because, the warnings uttered by the detenu and his accomplice to the members of the public not to apprehend them when they were fleeing away with the stolen purse cannot be considered to be such a serious act as to warrant an inference that the detenu and his accomplice had caused disturbance to the maintenance of public order.

Since two of the grounds are sustained, it is not necessary to go into the third ground of objection which incidentally we point out is not a tenable contention.

For the abovesaid reasons, we allow the writ petition and make the rule nisi absolute. We direct the Respondents to set the detenu at liberty forthwith.

We place on record our appreciation of the services rendered in this case by Mr. Venkatasubramaniam, engaged by the Legal Aid Board to argue the case of the detenu before us.