Selvam vs State of Tamil Nadu

M. Chockalingam, J.—This writ petition challenges the order of the second respondent respondent dated 28.06.2008 made in P.D.O. No. 24/2008, whereby Durai @ Panchadurai brother of the petitioner was ordered to be detained under the Tamil Nadu Act 14 of 1982, by terming him as ''GOONDA''.

The Court heard the learned Counsel for the petitioner and looked into the materials available on record, including the order under challenge.

Consequent upon the recommendations made by the sponsoring authority that the detenu Durai @ Panchadurai was involved in six adverse cases viz. (i) Crime No. 106 of 2006 by the Thiruvonam Police Station (ii) Crime No. 92 of 2007 by Pattukkottai Police Station (iii) Crime No. 37 of 2007 by Thiruvonam Police Station (iv) Crime No. 113 of 2007 by Pattukkottai Police Station (v) Crime No. 115 of 2007 by Keeramangalam Police Station and (vi) Crime No. 5 of 2008 by Karambakudi Police Station under Sections 379 and 75 I.P.C. and apart from the six adverse cases, he is also involved in the ground case in Crime No. 131 of 2008 by Vadakadu Police Station u/s 392 I.P.C., the detaining authority after looking into the materials available pertaining to all the above cases took the view that the activities of the detenu were prejudicial to the maintenance of the public order and hence he was to be detained by terming him as ''GOONDA'', and accordingly made the order, which is the subject matter of challenge before this Court.

Advancing the arguments on behalf of the petitioner, the learned Counsel for the petitioner raised the following three grounds:

Firstly, all the six adverse cases were registered by different police stations under Sections 379 and 75 I.P.C. and only the ground case was registered in Crime No. 131 of 2008 by Vadakadu Police Station for robbery and thus it is not a solitary instance and there was no question of disturbing public peace or order. Hence, there was no existence of circumstances warranting to term him as ''GOONDA'' under the provisions of the Tamil Nadu Act 14 of 1982. In support of his contention, the learned Counsel for the petitioner relied on the decision of the Honourable Apex Court in Darpan Kumar Sharma @ Dharban Kumar Sharma Vs. State of Tamil Nadu and Others, .

Secondly, there was delay in consideration of the representation made and he took the Court to the particulars of proforma supplied by the State.

Thirdly, the detenu filed a bail application in the ground case and the same was also dismissed. The detaining authority has pointed out the said fact in its order, but strangely it has observed that there was a real possibility of the detenu coming out on bail. Once there was no bail application pending before any Court of criminal jurisdiction, making such observation was prejudging the same and it would also indicate the apprehension in the mind of the detaining authority, without any reason or basis whatsoever. Hence, on those grounds the order under challenge has got to be set aside.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious considerations on the submissions made.

As could be seen from the materials available, the detenu was involved in six adverse cases and one ground case in Crime No. 131 of 2008 u/s 392 I.P.C., registered by Vadakadu Police Station. It is also not in controversy that the detenu was involved in six adverse cases and all were registered under Sections 379 of I.P.C. Apart from the above six adverse cases, he is also involved in one ground case registered for robbery. The Court has to necessarily disagree with the above contentions put forth by the learned Counsel for the petitioner. When the definition of the word ''GOONDA'' found in the Act is looked into, the acts prejudicial to public order are shown as and when the individual was engaged or or making preparation for engaging, in any of the activities as a goonda which affect adversely, or likely to affect adversely, the maintenance of public order. Hence, the question would be whether he has committed a breach of law and order or acted in a manner likely to cause disturbance to public order. In the instant case, it is true that the six adverse cases were registered against him u/s 379 and 75 I.P.C. by different police stations and they were all pending investigation and at that time, the 7th case was registered for robbery namely the ground case. It is not the case of the petitioner that those adverse cases were done in private place and it was also a case as could be seen from the materials placed that the crime was done in public places. Added circumstance was the ground case in which he has committed the alleged robbery. In the considered opinion of the Court, this is not a single instance but there were six earlier instances so as to create disturbance to either the tempo or normal life of the locality and disturbing the general peace and there cannot be peace when such activities are done in public places which would create lack of security in the locality. Under such circumstances, the first contention has got to be discountenanced and hence, it is rejected.

Secondly, from the perusal of the proforma, it is true that there was delay caused in admittedly while in receipt of the remarks or when it is placed before the Honourable Minister for Law or when the letter was prepared and is delay, in the considered opinion of the Court is neither unreasonable nor undue. Hence, it has got to be rejected.

Insofar as the third ground is concerned, the case of the petitioner was that the detenu was arrested in connection with the crime No. 131 of 2008 u/s 390 I.P.C. for an occurrence that has taken place on 07.05.2008, but the bail application was filed and dismissed on 26.06.2008. Nowhere it is found in the impugned order that subsequent to the order of dismissal, any bail application was filed by the detenu or pending before the Court of Criminal Law. The authority has also pointed out that there is a real possibility of the detenu coming out on bail. At this juncture, it has to be commented that when no application is filed or pending, such an observation that there is real possibility of the detenu coming out on bail was mere apprehension in the mind of the detaining authority and that too in an application for bail which might be filed in future. Under such circumstances there was nothing to prejudge the situation at that stage, and on that ground the Court has to necessarily agree with the case of the petitioner and thus the third ground would suffice to set aside the order under challenge.

Accordingly, the Habeas Corpus Petition is allowed and the order of detention in P.D.O. No. 24/2008 dated 28.06.2008 passed by the second respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case in accordance with law.