Leema Rose v. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, COIMBATORE

to cheat the complainant by forgery; that thecomplainant as the chairman of Akshaya Textileshas given some documents and blank documents to Thiru.Martin in order to obtain loan from him and to savehis mill from loss; but with the intention ofgrabbing the mill and lands worth Rs.125 croresThiru. Martin and his associates have givendisturbance to the complainant; that on 4.7.2011 atabout 12.30 hours the complainant was at hisoffice and on the instigation of Thiru. Martin, oneThiru. Durai a Retired Police Officer, Mr. KiranKumar and his uncle Mr. Anjaneyelu have trespassedinto his office, criminally intimidated him to signin some important documents with anti-date and tohand over the possession of the properties; thatfather on 11.7.2011 at 11.00 hours at Sathi toCoimbatore road, near Kurumbapalayam privu whenthe complainant was proceeding in his car, the saidMr.Martin, Mr.Durai, Mr. Kiran Kumar, Charles andBenjamin have waylaid him with deadly weapons andkidnapped him to Akshaya Textiles, threatened him tosign necessary documents; that they have torn thedocuments in the office, damaged the window glasses,computers and attempt to murder him with a view tograb his properties.”5. In paragraph 4(i) of the grounds of detention, thedetaining authority has arrived at the subjective satisfaction asfollows: -“4(i) On the materials placed before me, Iam satisfied that Thiru. S.Martin aged – 49, S/o.Santiago, residing at Door No.135, ThiruvalluvarStreet, Vellakinar Privu, G.N.Mills (P.O.), CoimbatoreNorth Taluk, Coimbatore District, is habituallycommitting crimes and also acting in a mannerprejudicial to the maintenance of public order andas such he is a “Goonda” as contemplated undersection 2(f) of Tamil Nadu Act 14/1982 by committingthe above said offence. Thiru. S.Martin createspanic and a feeling of insecurity in the minds ofpeople of that area and thereby acted in a mannerprejudicial to the maintenance of Public Order.”6. Considering the materials placed before the detainingauthority and considering the various acts committed by the detenu,the detaining authority has come to his subjective satisfactionthat the detenu should be detained under Tamil Nadu Act 14 of 1982and accordingly, passed the order of detention. https://hcservices.ecourts.gov.in/hcservices/

7. Challenging the same, the above H.C.P. has been filed. 8. Heard both. 9. Mr.B. Kumar, the learned Senior Counsel appearing for thelearned counsel M/s. R. Srinivas, learned counsel for thepetitioner, made the following submissions:-A. The documents enclosed by the detenu with hisrepresentation dated 25.10.11 have undoubtedly bearing on thevalidity of the complaint made by the said Narahari Setty and theregistration of the case pursuant to it. a. The detaining authority ought to have considered thesame on his own and failure to consider and take the same intoaccount before making the order of detention has vitiated hissubjective satisfaction. If the detaining authority had perused andconsidered the documents and the failure to supply the same to thedetenu would amount to violation of Article 22(5) of theConstitution of India. b. The learned Senior Counsel submitted that thedocuments relied upon in the grounds of detention by the detainingauthority have not been furnished to the detenu with the grounds ofdetention. The learned Senior Counsel submitted that in the groundsof detention, the detaining authority has heavily relied upon theinsertions or interpolations made in the Memorandum ofUnderstanding dated 14.11.2005 and the agreement dated 19.11.2005between the detenu and M/s. Akshaya Textiles Ltd., which are asfollows:-“that Memorandum of Understanding dated14.11.2005 and an agreement dated 19.11.2005 have beenprepared by Thiru. Martin and they were signed andexecuted; that due to hike in price of lands Thiru.Martin has inserted Rs.44.11 per equity share in theMOU,. The original was kept with Thiru. Martin andcreated fake agreement with a view to obtain illegalgain and to create loss to complainant and his milland thereby to grab Rs.125 crores of properties;similarly in the agreement of sale dated 19.11.2005were in the consideration was left blank at the timeof execution, Thiru. Martin filled up the figure as15 crores with the intention to cheat the complainantby forgery;c. The learned Senior Counsel submitted that the aforesaidalleged insertions said to have been made by the detenu amounts toforgery and in Cr.No.27 of 2011, a case has been registered forthe offences under Sections 467 and 468 I.P.C. in respect of theaforesaid insertions. Therefore, according to the learned SeniorCounsel, the detaining authority has heavily relied upon the MOUdated 14.11.2005 and the agreement dated 19.11.2005. But the said https://hcservices.ecourts.gov.in/hcservices/ documents, which are relied upon documents, have not been furnishedto the detenu along with the grounds of detention and therefore, itamounts to violation of Article 22(5) of the Constitution of India. d. The learned Senior Counsel further submitted that thedetenu sent a representation dated 8.10.2011 to the detainingauthority bringing to his notice various facts and circumstancesof the case and the cases, which have been registered against himfalsely and requested him not to detain him under the Goondas Act.The said representation was rejected by the detaining authority on21.10.2011. In the rejection order, the detaining authority hadstated that the detenu has mentioned enormous documents like MOU,sale deeds, shares and other documents relating to M/s. AkshayaTextiles, but he has not enclosed any document, in support of hisrepresentation and therefore, the detenu again sent a rejoinderrepresentation dated 25.10.2011 along with the documentary evidence.Along with the rejoinder representation, he had enclosed abouteight documents relating to Cr.No.108 of 2011 and 31 documentsrelating to Cr.No.27 of 2011 on the file of the District CrimeBranch, Coimbatore. The rejoinder representation has been referredto in the grounds of detention by the detaining authority by statingas follows:-“Again Thiru. Martin presented a petition beforeCollector enclosing the documents in support of hisclaim. The documents were perused. The document doesnot exonerate the petitioner from the offenceslevelled against him.”e. The learned Senior Counsel submitted that the aforesaidstatement of the detaining authority in the grounds of detentionclearly shows that the documents enclosed with the rejoinderrepresentation of the detenu, dated 25.10.2011 had been perused bythe detaining authority and they have been considered andthereafter, the representation had been rejected by his rejectionorder, dated 28.10.2011. When admittedly, the detaining authorityhas perused the documents enclosed with the rejoinderrepresentation, dated 25.10.2011, such documents should have beenenclosed with the grounds of detention and furnished to the detenu.Admittedly, those documents were not enclosed and furnished tothe detenu with the grounds of detention and therefore, the orderof detention cannot be sustained. f. In support of his contention, the learned Senior Counselbased reliance on the following decisions:-a. AIR 1982 SC 1500 (1) (Ibrahim Ahmad Batti vs. State ofGujarat and others). b. AIR 1980 SC 1983 (Smt. Icchu Devi Choraria vs. Union ofIndia and others). c. (2009) 1 MLJ (Crl.) 54 (SC) (Union of India v. RanuBhandari) https://hcservices.ecourts.gov.in/hcservices/ d. AIR 1987 SC 1192 (Mrs. Tsering Dolkar vs. TheAdministrator, Union Territory of Delhi and others).B. The second contention of the learned Senior Counsel isas follows:-a. The order of detention was passed on 29.10.2011. On31.10.2011 a representation was sent by the wife of the detenu tothe detaining authority. On 9.11.2011 the said representation wasrejected. On 1.11.11 itself, the second respondent had approvedthe order of detention. On 7.12.2011 the meeting to the AdvisoryBoard was held and its report was sent. On 22.12.2011, the secondrespondent Government confirmed the order of detention. b. The learned Senior Counsel submitted that therepresentation of the petitioner dated 31.10.2011 was not placedbefore the Advisory Board and it has also not been considered bythe Government at the time of confirming the order of detention.Therefore, according to the learned Senior Counsel, the order ofdetention cannot be sustained any further. c. The learned Senior Counsel by referring to the order ofconfirmation dated 22.12.2011 submitted that in the order ofconfirmation, though it is stated that the representation dated12.11.2011 of the petitioner and the detenu's representation, dated7.12.2011 have been placed before the Advisory Board, it has notbeen stated that the representation, dated 31.10.2011 of thepetitioner was placed before the Advisory Board. Further, it isnot stated in the confirmation order that the representation, dated31.10.2011 was considered by the Government. Therefore, the order ofdetention cannot be sustained. d. In support of the said contentions, the learned counselbased reliance on the following decisions:-a. 1984 CRI. L. J. 68 (Vellanai Pandian vs. Collector andDistrict Magistrate of Tirunelveli District and another). b. 1989 CRI.L.J. 637 (K.V. Jesudasan vs. State of T.N. Andanother)c. CDJ 2003 MHC 831 (Viji @ Vijayan @ Vijayakumar vs.The Commissioner of Police and another).C. The learned Senior Counsel submitted that the groundcase, namely, Cr.No.27 of 2011 on the file of the District CrimeBranch, Coimbatore was registered on the basis of the occurrence saidto have taken place on 11.7.2011. Even according to the grounds ofdetention, the occurrence took place inside the room in the millwhere only four accused including the detenu alone were present.Since the occurrence had not taken place in a public place orwitnessed by any public and the complainant was not injured, itdoes not give rise to any problem of public order.a. According to the learned Senior Counsel , the verysequence of the occurrence cannot and has not given rise to anyproblem of public order. There is no averment in the grounds ofdetention that the said incident occurred on 11.7.11 inside themill disturbed the public peace. It is not averred in the groundsthat there was disturbance of public order and no material https://hcservices.ecourts.gov.in/hcservices/ whatsoever has been annexed to the grounds of detention to show thatthe occurrence said to have taken place on 11.7.11 disturbed thepublic peace. Therefore, according to the learned Senior Counselthe ground case, namely, Cr.No.27 of 2011 cannot form the basis forpassing the order of detention detaining the detenu. The learnedSenior Counsel submitted that admittedly, at the time of occurrenceon 11.7.2011 inside the mill premises except the accused, thecomplainant, his driver and his manager, nobodyelse was present. Nostatement under Section 161 Cr.P.C. had been recorded from anymember of the public to the effect that the public wereterrorised. No material is found in the grounds of detention toshow that the even tempo of the society was affected. The veryoccurrence that has taken place inside the premises of the millwas not known to the public and therefore, the subjectivesatisfaction arrived at by the detaining authority that the detenuhas created a panic and a feeling of insecurity in the minds ofpeople of that area and thereby acted in a manner prejudicial tothe maintenance of public order is vitiated. b. In support of the said contention, the learned SeniorCounsel based reliance on the following decisions:-i. CDJ 2008 SC 1445 = 2008 9 SCC 89 ii. (2007) 2 MLJ (Crl.) 1528 (Suguna vs. State of TamilNadu represented by its Secretary to Government, Prohibition andExcise Department, Chennai and another). D. The learned Senior Counsel submitted that there is adelay in considering the post detention representation sent by thepetitioner. The representation dated 3.11.2011 had been receivedas per the postal acknowledgement on 4.11.2011. But the same hadbeen rejected only on 5.12.2011. The learned Senior Counselsubmitted that from the details furnished by the learned PublicProsecutor relating to the movement of the file relating to theconsideration of the post detention representation shows that theNote for circulation was prepared on 24.11.2011 and the Ministerfor Electricity and Prohibition and Excise approved the file on27.11.2011 and the file was received back in the Section on5.12.2011 and on the same day the rejection letter had beenprepared and the rejection letter was despatched on 7.12.2011. Thecontention is that though the Minister had affixed his signaturein the file on 27.11.2011, a formal order was made ready only on5.12.2011 and it has been despatched only on 7.12.2011 and hence,there is delay between 27.11.2011 and 7.12.2011. Unless the orderof rejection is communicated to the detenu it cannot be said thatthe order has been passed without delay. The contention was alsoput forth that though the Minister has put his signature on27.11.2011 till 5.12.2011, a formal order in the name of the Governoras contemplated under Article 166 of the Constitution of India hadnot been issued and hence at any time the Minister could change theorder and therefore, the date of order can be taken only as 5.12.2011.a. In support of his contention, the learned Senior Counselbased reliance on several decisions. https://hcservices.ecourts.gov.in/hcservices/ b. In response, the learned Public Prosecutor submittedthat once the Minister approves the note file rejecting therepresentation, immediately a formal order was made ready on5.12.2011 and the same was communicated on 7.12.2011 and it,therefore, will not vitiate the order of detention. 10. Countering the other aforesaid submissions, the learnedPublic Prosecutor has made the following submissions:-11. The learned Public Prosecutor submitted that thepurpose of supplying the documents relied upon by the detainingauthority in the grounds of detention is to enable the detenu tomake an effective representation. All the documents relied on bythe detaining authority were available with the detenu and it isnot pleaded that because of non supply of the documents anyprejudice has been caused to him and he was prevented from makingan effective representation either to the detaining authority or tothe Government. 12. The learned Public Prosecutor further submitted thatboth in the pre detention and post detention representations, thedocuments relied upon by the detaining authority have been referredto and therefore, no prejudice has been caused to the detenu bythe non furnishing of the relied upon documents. In support ofhis contention, the learned Public Prosecutor relied upon thedecision of the Apex Court reported in AIR 1981 SC 1191. 13. As far as the second contention of the petitioner thatthe representation, dated 31.10.2011 was not placed before theAdvisory Board and the same was also not considered by theGovernment before the order of confirmation is concerned,the learned Public Prosecutor submitted that in the order ofconfirmation, dated 22.12.2011, it is stated as follows:-",J bjhlh;ghd Mtz';fs; kw;Wk;"14. The learned Public Prosecutor further submitted thatthough the representation dated 31.10.2011 has not beenspecifically mentioned therein, the aforesaid words, namely, ",Jbjhlh;ghd Mtz';fs;" would indicate that the representation dated31.10.2011 was also placed before the Advisory Board and it hasalso been considered by the Government. 15. It is further contended by the learned PublicProsecutor that when the representations dated 3.11.2011,12.11.2011 and 7.12.2011 have been placed before the AdvisoryBoard and have also been considered by the Government and onlythereafter, the order of confirmation had been passed, it cannot besaid that any prejudice has been caused to the detenu. https://hcservices.ecourts.gov.in/hcservices/

16. As far as the third contention of the petitioner thatthe ground case or the other cases referred to and relied upon bythe detaining authority have not affected the public order, butthese cases, if at all, would only create a law and order problem isconcerned, the learned Public Prosecutor submitted the followingsubmissions:-17. The materials taken into consideration by the detainingauthority in all the cases have been referred to in the grounds ofdetention, which will show that this is a case of affecting thepublic order. The learned Public Prosecutor by referring toSection 161 Cr.P.C. statement of Narahari Setty and his driversubmitted that besides the detenu, at the time of occurrence on11.7.2011, the driver and the manager of Narahari Setty were presentand therefore, even though the occurrence has taken place insidethe mill premises, it took place in front of the public andtherefore, it affected the public order. 18. The learned Public Prosecutor submitted that eventhough the occurrence had taken place inside the mill premises,since the detenu is involved in four cases and he is a habitualoffender, the detaining authority has come to the conclusion thathe is a Goonda as defined under the Act 14 of 1982 and it issufficient to pass the order of detention. 19. In support of the said contention, the learned PublicProsecutor based reliance on the decision of the Division Bench ofthis Court reported in 1993 L.W. (Crl.) 113 (Subbaiah @Thiruvotiyur Subbaiyah @ Mahadevan vs. The Commissioner of Police,Madras City, Madras and another) and the decision of the Apex Courtrendered in Crl.A.No.417 of 2012 (Subramanian vs. State of TamilNadu and another). The learned Public Prosecutor also basedreliance on the decision of the Apex Court reported in 1970 SCC(Crl.) 67 (Arun Ghosh vs. State of West Bengal).20. We have considered the aforesaid submissions and perusedthe materials available on record. 21. The first contention of Mr.B.Kumar, learned SeniorCounsel for the petitioner is that the non furnishing of the reliedupon documents along with the grounds of detention within five daysfrom the date of service of detention order will vitiate the orderof detention. According to the learned Senior Counsel, the Memorandumof Understanding, dated 14.11.2005 and the agreement, dated19.11.2005 have been heavily relied upon by the detaining authorityand the detaining authority has considered the same for coming tothe conclusion that the detenu has inserted Rs.44.11 per equityshare in the MOU and filled up the figure as Rs.15 crores at theblank left in the sale agreement with an intention to cheat thecomplainant by forgery. For coming to the conclusion that the https://hcservices.ecourts.gov.in/hcservices/ detenu forged the MOU, dated 14.11.2005 and the agreement, dated19.11.2005, the detaining authority has relied upon those documents.Therefore, there cannot be any dispute that these two documentsare relied upon documents. Further in paragraph 4(iii) of thegrounds of detention, the detaining has stated as follows:-"Again Thiru. Martin presented a petitionbefore Collector enclosing the documents in supportof his claim. The documents were perused. Thedocument does not exonerate the petitioner from theoffences levelled against him." 22. Therefore, as rightly contended by the learned SeniorCounsel, all the documents enclosed with the rejoinderrepresentation, dated 25.10.2011 , namely, eight documents relatingto Cr.No.108 of 2011 on the file of the City Crime Branch,Coimbatore and 31 documents relating to Cr.No.27 of 2011 on the fileof the District Crime Branch, Coimbatore had been perused by thedetaining authority and has come to the conclusion that thedocuments do not exonerate the petitioner from the offenceslevelled against him. Therefore, these documents which have beenperused by the detaining authority also assumes the character ofrelied upon documents. 23. The question is whether such documents should befurnished to the detenu along with the grounds of detention withinfive days from the date of service of the order of detention. 24. The contention of the learned Public Prosecutor is thatunless it is pleaded and proved that the non furnishing of therelied upon documents or the documents perused by the detainingauthority has prejudiced the detenu and prevented him from makingan effective representation, the non furnishing of these documentswill not vitiate the order of detention. 25. Further, it is contended by the learned PublicProsecutor that all the documents were available with thedetenu and therefore, no prejudice has been caused to the detenuand in fact in the pre and post detention representations, thedetenu has referred to the said documents and hence, no prejudicehas been caused to him. 26. In paragraph 10 of the decision reported in AIR 1982SC 1500 (1) (Ibrahim Ahmad Batti vs. State of Gujarat and others),the Apex Court has laid down as follows:-“10. Two propositions having a bearing onthe points at issue in the case before us, clearlyemerge from the aforesaid resume of decided cases,(a) all documents, statements and other materialsincorporated in the grounds by reference and which https://hcservices.ecourts.gov.in/hcservices/ have influenced the mind of the detaining authorityin arriving at the requisite subjective satisfactionmust be furnished to the detenu along with thegrounds or in any event not later than five daysordinarily and in the exceptional circumstances andfor reasons to be recorded in writing not later than15 days from the date of his detention and (b) allsuch material must be furnished to him in a scriptor language which he understands and failure to doeither of the two things would amount to a breachof the two duties cast on the detaining authorityunder Art. 22(5) of the Constitution.”27. In paragraph 11 of the same decision, it has beenlaid down as follows:- “Preventive detention is a serious invasionof personal liberty and the normal methods open to aperson charged with commission of any offence todisprove the charge or to prove his innocence atthe trial are not available to the personpreventively detained and therefore in preventivedetention jurisprudence whatever little safeguardsthe Constitution and the enactment authorising suchdetention provide assume utmost importance and mustbe strictly adhered to and one of such safeguards isthat unless exceptional circumstances really obtainthe delay in supply of grounds of detention as alsothe documents and statements incorporated therein byreference beyond the normal period of five days wouldbe fatal.” 28. Ultimately, the Apex Court held that the failure tosupply the documents and statements incorporated in the grounds ofdetention within a period of five days would amount to breach ofthe safeguard contained in Article 22(5) of the Constitution of Indiar/w Section 3(3) of the COFEPOSA and vitiates the continueddetention of the detenu. 29. In the decision reported in AIR 1980 SC 1983 (supra),the Hon'ble Apex Court considered the similar question in paragraph7 and has laid down as follows: - "Itis clear from the discussion inthe preceding paragraph that under clause (5) ofArticle 22 read with section 3, sub-section (3) ofthe COFEPOSA Act, the detaining authority was boundto supply copies of the documents, statements andother materials relied upon in the grounds ofdetention to the detenu within five days from the date https://hcservices.ecourts.gov.in/hcservices/ of detention, that is, on or before 9th June, 1980 andin any event, even if we assume that there wereexceptional circumstances and reasons for notsupplying suchcopies within five days wererecorded in writing, such copies should have beensupplied to the detenu not later than fifteen days fromthe date of detention, that is, on or before 19th June,1980. It was, of course, not the case of the detainingauthority before us that reasons for not supplyingcopies of the documents, statements and other materialsto the detenu within five days were recorded inwriting nor were any such reasons produced beforeus, but even if there were any such reasons recordedin writing, coupled with the existence of exceptionalcircumstances, the detaining authority, could not delaythe supply of copies of the documents,statements andother materials to the detenu beyond 19th June, 1980."30. In the decision reported in 2009(1) MLJ (Crl) 54(SC) (Union of India vs. Ranu Bhandari) one of the questions thatcame up for consideration before the Apex Court was whether the nonsupply of the documents irrespective of whether they had originatedfrom the detenu himself, had prevented the detenu from making aneffective representation against the detention order, since withouthaving the documents in front of him, it was not possible forthe detenu to remember the contents of the said documents intheir entirety, which contained in detail the stand of the detenuand whether by depriving the detenu of the said documents he wasdeprived of the right guaranteed to him under Article 22(5) ofthe Constitution which was mandatory and any breach thereof hadbeen held by the Apex Court to be sufficient to vitiate thedetention order. 31. While considering the said question, the Apex Courtconsidered the decision reported in (1990) 2 SCC 1 (M. Ahamedkuttyv. Union of India), where in it was held as follows:-"It was also observed that it was immaterialwhether the detenu already knew about their contentsor not, but the non-supply of the copies thereofwas fatal as was held in Mehrunissa v. State ofMaharashtra AIR 1981 SC 1861 : (1981) 2 SCC 709. Itwas emphasised that in order to appreciate thispoint it would have to be kept in mind that thedetenu is in jail and has not access even to his owndocuments."32. In the very same decision, the Apex Court has heldin paragraphs 25, 29 and 30 as follows:- https://hcservices.ecourts.gov.in/hcservices/ “25. We have indicated hereinbefore thatthe consistent view expressed by this Court inmatters relating to preventive detention is thatwhile issuing an order of detention, the DetainingAuthority must be provided with all the materialsavailable against the individual concerned, bothagainst him and in his favour, to enable it to reacha just conclusion that the detention of suchindividual is necessary in the interest of the Stateand the general public. It has also been theconsistent view that when a detention order ispassed all the material relied upon by the DetainingAuthority in making such an order, must be suppliedto the detenu to enable him to make an effectiverepresentation against the detention order incompliance with Article 22(5) of the Constitution,irrespective of whether he had knowledge of the sameor not. These have been recognised by this Court asthe minimum safeguards to ensure that preventivedetention laws, which are an evil necessity, do notbecome instruments of oppression in the hands of theconcerned authorities or to avoid criminalproceedings which would entail a properinvestigation.”“29. We are inclined to agree with thesubmissions made on behalf of the respondent that,notwithstanding the nature of the allegations made, hewas entitled to the assurance that at the time whenthe detention order was passed all the materials,both for and against him, had been placed for theconsideration of the Detaining Authority and had beenconsidered by it before the detention order waspassed, having particular regard to the orders passedby the Settlement Commission appointed under theprovisions of the Customs Act, 1962, which absolvedthe detenu from all criminal prosecution.”30. In the instant case, as some of thevital documents which have a direct bearing on thedetention order, had not been placed before theDetaining Authority, there was sufficient ground forthe detenu to question such omission. We are also ofthe view that on account of the non-supply of thedocuments mentioned hereinbefore, the detenu wasprevented from making an effective representationagainst his detention.”33. In the decision reported in AIR 1987 SC 1192 (citedsupra), the Apex Court, in paragraph 12, has laid down as follows:- https://hcservices.ecourts.gov.in/hcservices/ "12. The learned Additional Solicitor Generalrelied upon the feature that the petitioner-wifeknew both English and Tibetan languages and aneffective representation as afact had been made.There can be no two opinions that the requirement oflaw within the provisions of Article 22(5) of theConstitution is that the detenu has to be informedabout the grounds of detention in a language which heunderstands.The fact that the detenu's wife knew thelanguage in which the grounds were flamed does notsatisfy the legal requirement. Reliance was placed bythe learned Additional Solicitor General on adecision of this Court in Prakash Chandra Mehta v.Commissioner and Secretary, Government of Kerala &Ors., [1985] 3 SCR 679 in support of his contentionthat unless the detenu was able to establish prejudiceon account of the fact that the grounds of detentionand the documents accompanying the grounds were not ina language known to the detenu the order would not bevitiated. There is no clear indication of the testof prejudice being applied in that case. On the factsrelevant before the Court, a conclusion was reachedthat the detenu was merely reigning ignorance ofEnglish and on the footing that he knew English, thematter was disposed of. We must make it clear that thelaw aslaid down by this Court clearly indicatesthat in the matter of preventive detention, the testis not one of prejudice but one of strict compliancewith the provisions of the Act and when there is afailure to comply with those requirements it becomesdifficult to sustain the order. (See AIR 1975 SC1513, [1975] 2 SCR 832, AIR 1975 SC 245)." 34. In this case, as rightly contended by the learnedSenior Counsel Mr.B.Kumar, the MOU, dated 14.11.2005 and theagreement dated 19.11.2005 have been heavily relied upon by thedetaining authority in the grounds of detention. However, all thedocuments annexed to the rejoinder representation, dated 25.10.2011of the detenu have admittedly been perused by the detaining authorityas referred to above. Therefore, the said documents ought to havebeen furnished to the detenu within five days from the date ofservice of the detention order. 35. In this case, admittedly, the said documents have notbeen furnished to the detenu within 5 days from the date ofexecution of the detention order along with the grounds ofdetention. The MOU and the agreement which have been incorporated inthe grounds of detention and which have been perused for arrivingat the requisite subjective satisfaction should have been furnishedto the detenu along with the grounds of detention and in any event https://hcservices.ecourts.gov.in/hcservices/ not later than five days from the date of his detention as laiddown in AIR 1982 SC 1500 (1). The non furnishing of the saiddocuments within five days would be fatal. But, according to thelearned Public Prosecutor, as all the documents referred to andrelied upon and perused by the detaining authority in the groundsof detention originated from the detenu and such documents havebeen referred to in the representations sent by the detenu aswell as the petitioner herein, there is no need or necessity tofurnish the same to the detenu. It has not been pleaded that anyprejudice was caused to the detenu by the non furnishing of thesaid documents and because of the non furnishing of the documentsthe detenu was prevented from making an effective representationand therefore, the non furnishing of the relied upon documents willnot vitiate the order of detention cannot be countenanced in viewof the decision of the Apex Court reported in AIR 1980 SC 1983(supra). The burden of showing that the detention is inaccordance with the procedure established by law has always beenplaced by the Court on the detaining authority because Article 21of the Constitution provides in clear and explicit terms that noone shall be deprived of his life or personal liberty except inaccordance with procedure established by law.36. The Apex Court has further observed that it wouldbe most unreasonable to insist that the petitioner should setout clearly and specifically the grounds on which he challengesthe order of detention and make out a prima facie case in support ofthose grounds before a rule is issued or to hold that thedetaining authority should not be liable to do anything more thanjust meet the specific grounds of challenge put forward by thepetitioner in the petition. 37. In paragraphs 4 and 5, the Apex Court has observed asfollows:- “4. It is also necessary to point out thatin case of an application for a writ of habeascorpus, the practiceevolved by this Court is not to follow strict rulesof pleading nor place undue emphasis on the question asto on whom the burden of proof lies. Even a postcardwritten by a detenu from jail has been sufficient toactivise this Court into examining the legality ofdetention.”“5. This practice marks a departure from thatobtaining in England where observance of the strictrules of pleading is insisted upon even incase of anapplication for a writ of habeas corpus, but it has beenadopted by this Court in view of thepeculiar socio-economic conditions prevailing in the country. Wherelarge masses of people are poor, illiterate and ignorant https://hcservices.ecourts.gov.in/hcservices/ and access to the courts is not easy on account of lackof financial resources, it would be mostunreasonable to insist that the petitioner should setout clearly and specifically the grounds on which hechallenges the order of detention and make out a primafacie case in support of those grounds before a rule isissued or to hold that the detaining authority shouldnot be liable to do anything more than just meetthe specific grounds of challenge put forward by thepetitioner in the petition. The burden of showing thatthe detention is in accordance with the procedureestablished by law has always been placed by this Courton the detaining authority because Article 21 of theConstitution provides in clear and explicit terms thatno one shall be deprived of his life or personalliberty except in accordance with procedure establishedby law. This constitutional right of life and personalliberty is placed on such a high pedestal by thisCourt that it has always insisted that whenever thereis any deprivation of life or personal liberty, theauthority responsible forsuch deprivation mustsatisfy the court that it has acted in accordancewith the law. This is an area where the court has beenmost strict and scrupulous in ensuring observance withthe requirements of the law, and even where a requirementof the law is breached in the slightest measure, thecourt has not hesitated to strike down the order ofdetention or to direct the release of the detenue eventhough the detention may have been valid till the breachoccurred. The court has alwaysregarded personalliberty as the most precious possession of mankindand refused to tolerate illegal detention,regardless of the social cost involved in the releaseof a possible renegade.”38. Having observed as above, while considering thequestion whether the non furnishing of the relied upon documentswithin five days from the date of detention, will vitiate the orderof detention, the Apex Court has held that the failure tofurnish the relied upon document within five days from the date ofdetention will vitiate the order of detention and ultimately, theApex Court set aside the order of detention. Therefore, thecontention of the learned Public Prosecutor that since it has notbeen pleaded by the detenu that the non furnishing of the reliedupon documents prejudiced his right to make an effectiverepresentation, the non furnishing of the relied upon documentswill not vitiate the order of detention cannot be countenanced. 39. It was contended by the learned Public Prosecutor thatas the documents which have been relied upon by the detaining https://hcservices.ecourts.gov.in/hcservices/ authority and which have not been supplied to the detenu withthe grounds of detention had originated from the detenu himself,the non furnishing of the same will not in any way prejudice thedetenu from making an effective representation against the order ofdetention cannot be countenanced. Since similar contention putforth by the detaining authority before the Apex Court in thedecision reported in (2009) 1 MLJ (Crl.) 54 (SC) had beenrejected. While rejecting the said contention, the Apex Courthas relied upon the decision reported in (1990) 2 SCC 1 and AIR1981 SC 1861 (supra), wherein it has been laid down that it wasimmaterial whether the detenu already knew about their contents ornot, but the non supply of the copies thereof was fatal.Further, the Apex Court has emphasised the fact that it should bekept in mind that the detenu is in jail and has no access even tohis own documents and it has also been pointed out that it has alsobeen the consistent view that when a detention order is passedall the material relied upon by the detaining authority in makingsuch an order, must be supplied to the detenu to enable him tomake an effective representation against the detention order incompliance with Article 22(5) of the Constitution, irrespective ofwhether he had knowledge of the same or not. Therefore, thecontention of the learned Public Prosecutor cannot be countenanced. 40. In the decision reported in AIR 1987 SC 1992(supra), the Apex Court has held that in the matter of preventivedetention, the test is not one of prejudice but one of strictcompliance with the provisions of the Act and when there is afailure to comply with those requirements it becomes difficult tosustain the order. The Apex Court has relied upon the decisionsreported in AIR 1975 SC 1513: 1975 Cri LJ 1327 and AIR 1975 SC 245:1975 Cri LJ 1252. 41. Therefore, for the aforesaid reasons, we are of theconsidered view that the non supply of the MOU, dated 14.11.2005and the agreement dated 19.11.2005 and the documents enclosed withthe rejoinder representation dated 25.10.2011 submitted by thedetenu, which have been admittedly perused by the detainingauthority, violates the right of the detenu conferred on himunder Article 22(5) of the Constitution of India and Section 8 ofthe Tamil Nadu Act 14 of 1982 and therefore, the impugned order ofdetention cannot be sustained any further. 42. The next contention of the learned Senior Counsel isthat the representation of the petitioner dated 31.10.2011 wasnot placed before the Advisory Board and it was not alsoconsidered by the Government while confirming the order ofdetention. 43. It is not in dispute that the petitioner sent therepresentation dated 31.10.2011 and the same had been received by https://hcservices.ecourts.gov.in/hcservices/ the detaining authority. The contention of the learned SeniorCounsel is that as per Section 10 of Act 14 of 1982, it isincumbent on the part of the State Government to place before theAdvisory Board constituted by them under Section 9, the grounds onwhich the order has been made and the representation, if any, madeby the person affected by the order and therefore, the nonplacement of the said representation dated 31.10.2011 before theAdvisory Board by the Government vitiates the order ofdetention. 44. In support of the said contention, the learned SeniorCounsel had relied upon the three decisions referred to supra. Inthe decision reported in 1984 CRI.L.J. 68, a Division Bench ofthis Court, while considering Section 10 of Act 14 of 1982, hasheld as follows:- "It is clear that the Supreme Court, bynecessary implication has held that the detainingauthority is obliged to forward all the subsequentmaterial having a bearing on the matter to theGovernment and to the Advisory Board."45. In the decision reported in 1989 CRI.L.J. 637 (K.V.Jesudasan vs. State of T.N. and another) another Division Bench ofthis Court, in paragraph 8, has laid down as follows:-“8. In law, the responsibility of theAdvisory Board in the scheme of preventive detentionis extremely important. It is a body, independentfrom the Detaining Authority, whose duty is to go intothe facts in order to appreciate whether it isproper or not to keep the person concerned underdetention. The detaining authority has to abide by theopinion of the Advisory Board in case the AdvisoryBoard opines that it is not necessary to detain theperson concerned. Therefore, the detaining authoritycannot vest on himself any discretion regarding theopportunity of forwarding or not forwarding to theadvisory board any material which may have somerelevant on the detention. The relevance is to beascertained having regard to the nature of documentand not to its content in respect of which one maybe lead to form a subjective opinion.” 46. Yet another Division Bench of this Court in thedecision reported in CDJ 2003 MHC 831, in paragraphs 11, 12, 13 and14 has laid down as follows:-“11. Again, the learned Additional PublicProsecutor wants us to read the word 'representation'in Section 10 of the Act as the representation made tothe Government only. https://hcservices.ecourts.gov.in/hcservices/

12. We are unable to agree. A representationis not made to a particular authority. It is arepresentation made by the detenu challenging thisdetention. So, any communication by which the detenuchallenges the detention order becomes arepresentation as contemplated in Section 10. Itneed not be specifically directed to the Governmentalone. In this behalf , there are any number ofpronouncements that even a representation sent to thePresident of India has been treated to be arepresentation to the Government of India. If that isso, the representation does not lose its characteras a representation merely because it is notdirected to the Government and directed to theDetaining Authority. That will be a simple way ofreading the Section. If we accept the interpretationto be forwarded by the learned Additional PublicProsecutor, we would be doing harm to the plain andsimple language of Section 10. In that view, itmust be held that in view of the admitted positionthat the very first representation was not putbefore the Advisory Board, there is a clear-cutbreach of Section 10.13. Learned Additional Public Prosecutorfurther almost by way of a desperate argumentargues that both the representations were of similarnature and whatever was raised in the firstrepresentation was also raised in the secondrepresentation dated 1.10.2002. 14. That may be so. That was not for theGovernment to consider. The Government was bound bythe dictate of the Section that every representationmust go before the Advisory Board provided theGovernment comes into the possession of any suchrepresentation.” 47. Ultimately, the Division Bench held that it is atrite law that where the provision of law is mandatory, its breachwould straightaway fatalise the detention and that is exactly whathas happened in that case and the order of detention was quashed. 48. The law laid down in the aforesaid three decisionsclearly repel the contention of the learned Public Prosecutor.The representation, dated 31.10.2011 contains the similar contentsas that of the contents contain in the representations dated3.11.2011, 12.11.2011 and 7.12.2011 and therefore, the non placementof the said representation before the Advisory Board will not https://hcservices.ecourts.gov.in/hcservices/ vitiate the order of detention cannot be countenanced. 49. The contention that the words ",J bjhlh;ghd Mtz';fs "found in the order of confirmation would indicate that therepresentation dated 3.11.2011 had been placed before the AdvisoryBoard and the same has been considered by the Advisory Board aswell as by the Government is concerned, the said contention is madein desperation. After the said words, the three representationsdated 3.11.2011, 12.11.2011 and 7.12.2011 have been specificallyreferred to but the date 31.10.2011 has conspicuously not beenmentioned. Therefore, it is very clear that the saidrepresentation dated 31.10.2011 had neither been placed beforethe Advisory Board nor considered by the Government whileconfirming the order of detention and therefore, on this groundalso, the impugned order of detention is liable to set aside. 50. The next contention that has to be considered iswhether on the materials placed before the detaining authority, thedetaining authority is justified in coming to the subjectivesatisfaction that the cases registered against the detenu will showthat the detenu created panic and a feeling of insecurity inthe minds of public of that area and thereby acted in amanner prejudicial to the maintenance of public order? 51. In paragraph 4(i) of the grounds of detention, thedetaining authority has stated that he is satisfied that thedetenu is habitually committing crimes and also acting in a mannerprejudice to the public order and as such he is a "Goonda" ascontemplated under Section 2 (f) of Tamil Nadu Act 14/1982 bycommitting "the above said offence". 52. It is contended by the learned Senior CounselMr.B.Kumar, the above said offence, refers to the ground case,namely, Cr.No.27 of 2011 on the file of the District Crime Branch,Coimbatore. A reading of the paragraph 3(i) and (ii) of thegrounds of detention shows that the detaining authority hasconsidered the alleged forgery committed by inserting Rs.44.11 perequity share in the MOU dated 14.11.2005 and by filling up the blankleft in the agreement dated 19.11.2005 with the figure as 15crores. The detaining authority has also stated that the detenu andhis assistant have given disturbance to the complainant and on4.7.2011 at about 12.30 hours when the complainant was at hisoffice, and at the instigation of of the detenu, Thiru. Durai aRetired Police Officer, Mr. Kiran Kumar and his uncle Mr.Anjaneyelu have trespassed into his office, criminally intimidatedhim to sign in some important documents with anti-date and to handover the possession of the properties and that further on 11.7.2011at 11.00 hours at Sathy to Coimbatore road, near Kurumbapalayampirivu when the complainant was proceeding in his car, thedetenu, Mr. Durai, Mr. Kiran Kumar, Charles and Benjamin have https://hcservices.ecourts.gov.in/hcservices/ waylaid him with deadly weapons and kidnapped him to Akshayatextiles, threatened him to sign necessary documents and that theyhave torn the documents in the office , damaged the windowglasses, computers and attempted to murder him with a view to grabhis properties. 53. The aforesaid acts constituted the commission ofoffences for which the case in Cr.No.27 of 2011 had been registeredand the same have been relied upon by the detaining authority tocome to the subjective satisfaction that the detenu had createdpanic and a feeling of insecurity in the minds of people of thatarea and thereby acted in a manner prejudicial to the maintenanceof public order. 54. The learned Senior Counsel submitted that whenadmittedly, the aforesaid offences have not been committed in apublic place and in the presence and view of the public and thepublic have not got terrorised and even tempo of the society ofthat locality or area had not been affected, it will not amount todisturbance to the public order but it will only be a law and orderproblem. But the contention of the learned Public Prosecutor isthat the said offences though have been committed inside thepremises of the textile mils of the complainant, the same wasviewed by the complainant, his driver and his manager andtherefore, it will amount to a public order problem. Further,once the detaining authority has come to the conclusion that thedetenu is a Goonda as defined under 2(f) of the Tamil Nadu Act14/1982, it is sufficient to pass the order of detention. 55. In the decision reported in CDJ 2008 SC 1445 (K.K.Saravana Babu vs. State of Tamil Nadu and another), the Apex Courtconsidered the validity of the detention order passed under Section3(1) of the Tamil Nadu Act 14 of 1982. In that case, thedistinction between law and order and public order was considered.It was contended that the detenu was involved in two cases andin one case the case was registered for the offences under Sections420, 465, 468 r/w 471 and 120(B) I.P.C. and another case wasregistered for the offences under Sections 420, 465, 466, 467, 468r/w 471 and 120(B) I.P.C. It was contended by the detenu thateven if all the allegations incorporated in both the crime numbersare taken to be true, the offences committed by the detenu cannot besaid to be prejudicial to the public order. 56. In paragraphs 31 and 32 of the said decision, it hasbeen laid down as follows: -"31. We have tried to deal with the importantcases dealing with the question of "law and order"and "public order" right from the case of RomeshThappar (supra) to the latest case of R. Kalavathi(supra). This Court has been consistent in its https://hcservices.ecourts.gov.in/hcservices/ approach while deciding the distinction between 'lawand order' and 'public order'. According to thecrystallized legal position, cases affecting thepublic order are those which have great potentialityto disturb peace and tranquility of a particularlocality or in the words of Hidayatullah, J. Disturbthe even tempo of the life of the community of thatspecified locality. "32. In the instant case, in the grounds ofdetention, two cases have been enumerated, one ofwhich pertains to the offences punishable undersections 420, 465, 468 read with 471 and 120(B) IPC inCrime No.70 of 2006. Another case pertains to CrimeNo.364 of 2007 registered under sections 420, 465,466, 467, 468 read with 120(B) IPC. The facts ofthese cases have been carefully examined and evenassuming the allegations of these cases as true, eventhen by no stretch of imagination, the offencescommitted by the detenu can be called prejudicial topublic order. The detenu can be dealt with under theordinary criminal law if it becomes imperative." 57. Thus, it is clear that the cases which havepotentiality to disturb peace and tranquillity of a particularlocality or even tempo of the life of the community of thatspecified locality are the cases affecting the public order.58. In the decision reported in (2007) 2 MLJ (Crl.) 1528(Supra) a Division Bench of this Court, while considering a similarquestion in paragraph 10 has laid down as follows:-“10. The other submission of the petitioner,to the effect that the alleged occurrence on the basisof which a case under Section 392 I.P.C. has beenregistered related to the question of mere law andorder and not public order however, stands on astronger footing. It is obvious that the detainingauthority based his conclusion on the basis ofoffence under Section 392 I.P.C. allegedly committedon 21.8.2006. Topography of the place where suchoccurrence took place was available in the bookletfurnished. Prima facie it does not indicate thatoccurrence took place in a busy public place northere is anything to show that it took in thepresence of several persons likely to cause panicamong the general public. The manner in whichoccurrence is said to have taken place indicatesthat it is case of “law and order” situation ratherthan “public order” situation. Keeping in view thesetting and the manner in which the alleged occurrence https://hcservices.ecourts.gov.in/hcservices/ was committed, we are of the considered opinion thatthe incident related to law and order situation ratherthan a public order situation and the subjectivesatisfaction of the detaining authority is vitiatedso far as this aspect is concerned.” 59. In that case, the occurrence had not taken place in apublic place nor was nothing to show that the incident took placein the presence of several persons and caused panic among the publicand therefore, the Division Bench held that the incident related tolaw and order situation rather than the public order situation andfurther held that the subjective satisfaction arrived at by thedetaining authority is vitiated. The said decision is squarelyapplicable to the facts and circumstances of the case. 60. In this case, admittedly, the occurrence said to havetaken place on 11.7.2011 was only inside the textile mills of thedefacto complainant and it had not taken place in a busy publicplace and there is nothing to show that it had taken place in thepresence of several persons and caused panic among the generalpublic. The contention of the learned Public Prosecutor that thedriver of the de facto complainant and his manager were alsopresent at the time of occurrence is immaterial. The presence ofpersonal staff of the defacto complainant inside the textile millwherein the occurrence is said to have taken place cannot beconstrued to have taken place in the presence of the public and ata public place and there is no material before the detainingauthority that the said occurrence caused panic among the generalpublic. The manner in which the occurrence is said to have takenplace indicates that "it is the case of a law and order situationrather than the public order situation." The learned PublicProsecutor relied upon the decision of the Division Bench of thisCourt reported in 1993 L.W. (Cri) 113 (supra). In the decision ,it is no doubt it has been laid down as follows:-“28. ..... The definition of 'goonda'refers to the habitual commission or attempt to commitor abatement of the commission of offences specifiedin the section. When a person is found to be agoonda it goes without saying that he is a personwho habitually commits or attempts to commit orabets commission of offences. Hence it is notnecessary further for the authority to wait for hiscommitting another act which is likely to causeprejudice to the maintenance of public order. If thefacts and circumstances placed before the authorityare sufficient to enable him to arrive at theconclusion that he is a goonda then those facts andcircumstances are sufficient to consider the secondquestion also as to whether such acts will causeprejudice to the maintenance of public order. The https://hcservices.ecourts.gov.in/hcservices/ object of the Act is to prevent the person concernedto act in a manner prejudicial to the maintenance ofpublic order. It would be futile to contend thatthe authority should wait till he acts in such amanner. In that case it will not be preventivedetention but a case of detention after thecommission of the offence. Hence a reading of S.3(1)together with S.2(a) and (f) of the Goondas Actmakes it clear that if the commission of offences issufficient to brand a person as a goonda withinthe meaning of S.2(f) they can themselves be takeninto account for considering the question whether heis acting in a manner prejudicial to the maintenanceof public order.”61. In that decision, the Division Bench has not consideredthe distinction between law and order and public order andtherefore, the said decision would not lend any support to thecontention of the learned Public Prosecutor. 62. In the decision CDJ 2008 SC 1445 referred to abovealso, the Apex Court considered the validity of the detention orderunder Act 14 of 1982. In that case, the detenu was branded as aslum grabber. Though the Apex Court has not found fault with thedetaining authority in coming to the conclusion that the detenuwas slum grabber, yet the Apex Court by considering the nature ofthe offences committed and the potentiality of the nature of theoffences held that the acts committed by the detenu will comeunder purview of the law and order problem and not under thepurview of the public order. 63. The learned Public Prosecutor based reliance on thedecision rendered in Crl.A.No.417 of 2012 in the case ofSubramanian vs. State of Tamil Nadu and another. In that case, thedetenu was branded as a Goonda and detained under the Tamil NaduAct 14 of 1982. The Apex Court while considering the questionwhether the action of the detenu is only a law and order problemor a public order problem , the Apex Court considered the nature ofthe activities indulged in by the detenu and has pointed out thedistinction between law and order or public order. In the saiddecision, in paragraphs 12 and 13, it has been held as follows:-“12. The next contention on behalf of thedetenu, assailing the detention order on the pleathat there is a difference between 'law and order'and 'public order' cannot also be sustained sincethis Court in a series of decisions recognisedthat public order is the even tempo of life of thecommunity taking the country as a whole or even aspecified locality. (Vide Puspha Devi M. Jatia vs. https://hcservices.ecourts.gov.in/hcservices/ M.L. Wadhawan & Ors., 1987 (3) SCC 367 paras 11 & 14;Ram Manohar Lohia vs. State of Bihar (1966) 1 SCR709; Union of India vs. Arvind Shergill & Anr. 2000(7) SCC 601 paras 4 & 6; Sunil Fulchand Shah vs.Union of India & Ors. 2000 (3) SCC 409 para 28(Constitution Bench) ; Commissioner of Police & Ors.vs. C. Anita (Smt), 2004 (7) SCC 467 paras 5, 7 & 13). 13. We have already extracted thediscussion, analysis and the ultimate decision ofthe Detaining Authority with reference to the groundcase dated 18.7.2011. It is clear that the detenu,armed with 'aruval', along with his associates, armedwith 'katta' came to the place of the complainant.The detenu abused the complainant in filthy languageand threatened to murder him. His associates alsothreatened him. The detenu not only threatened thecomplainant with weapon like 'aruval' but alsodamaged the properties available in the shop. Whenthe complainant questioned the detenu and hisassociates, the detenu slapped him on his face. Whenthe complainant raised an alarm for rescue, on thearrival of general public in and around, they werealso threatened by the detenu and his associates thatthey will kill them. It is also seen from thegrounds of detention that because of the threat bythe detenu and his associates by showing weapons, thenearby shop keepers closed their shops out of fear andauto drivers took their autos from their stand and leftthe place. According to the Detaining Authority, theabove scene created a panic among the public. In suchcircumstances, the scene crated by the detenu andhis associates cannot be termed as only law and orderproblem but it is public order as assessed by theDetaining Authority who is supposed to safeguard andprotect the interest of public. Accordingly, wereject the contention raised by learned seniorcounsel for the appellant.”64. Since in that case, when the complainant was assaultedand when he raised alarm for rescue, the general public came thereand they were threatened by the accused by saying that if anyoneturns up as witness, he will kill them and because of the threatgiven by the detenu the nearby shop-keepers closed their shops outof fear and auto drivers took their autos from the auto stand andleft the place, the above scene, according to the detainingauthority, created panic among the public. The Apex Court in suchcircumstances held that the scene created by the detenu and hisassociates cannot be termed as only a law and order problem andaccordingly, rejected the contention raised by the detenu. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the facts of that case are different from the facts ofthis case. In that case, the occurrence took place in thepresence of the public and the general public were threatened bythe detenu and his associates and shop keepers closed their shopsout of fear and auto drivers took their autos and left the place andthe acts committed by the detenu and his associates createdpanic among the general public and therefore, the Apex Court hasheld that it is not a law and order problem but it is a publicorder problem. But in this case, admittedly, the occurrence hastaken place inside the textile mill premises of the defactocomplainant and not in the presence of public or public place and nopublic was threatened and even tempo of the society in thatparticular area was not affected. Therefore, we are of theconsidered view that in this case, the problem was only a law andorder problem and not a public order problem. 65. In the decision reported in 1970 SC (Cr.) 67 (supra),which was relied upon by the public prosecutor, the distinctionbetween public order and law and order was considered. In thatdecision, in paragraph 3, it has been laid down as follows:- “3. The submission of the counsel is thatthese are stray acts directed against individualsand are not subversive of public order and thereforethe detention on the ostensible ground of preventinghim from acting in a manner prejudicial to the publicorder was not justified. In support of thissubmission reference is made to three cases of thisCourt : Dr. Ram Manoha Lohia v. State of Bihar ;Pushkar Mukherjee and Others v. State of West Bengaland Shyamal Chakraborty v. The Commissioner of Police,Calcutta and Another. In Dr. Ram Manohar Lohia'scase this Court pointed out the difference betweenmaintenance of law and order and its disturbance andthe maintenance of public order and its disturbance.Public order was said to embrace more of thecommunity than law and order. Public order is theeven tempo of the life of the community taking thecountry as a whole or even a specified locality.Disturbance of public order is to be distinguishedfrom acts directed against individuals which do notdisturb the society to the extent of causing a generaldisturbance of public tranquillity. It is the degreeof disturbance and its effect upon the life ofthe community in a locality which determines whetherthe disturbance amounts only to a breach of law andorder. Take for instance, a man stabs another.People may be shocked and even disturbed but the lifeof the community keeps moving at an even tempo,however much one dislike the act. Take another case https://hcservices.ecourts.gov.in/hcservices/ of a town where there is communal tension. A manstabs a member of the other community. This is an actof a very different sort. Its implications aredeeper and it affects the even tempo of life andpublic order is jeopardized because the repercussionsof the act embrace the large sections of thecommunity and incite them to make further breaches ofthe law and order and to subvert the public order. Anact by itself is not determinant of its own gravity.In its quality it may not cause of assault on girls.A guest at a hotel may kiss or make advances to halfa dozen chamber maids. He may annoy them and also thethe management but he does not cause disturbance ofpublic order. He may even have a fracas with thefriends of one the girls but even then it would becase of breach of law and order only. Take anothercase of a a man who molests women in lonely places.As a result of his activities girls going to collegesand schools are in constant danger and fear. Womengoing for their ordinary business are afraid ofbeing waylaid and assaulted. The activity of this manin its essential quality is not different from theact of the other man but in its potentiality and inits effect upon the public tranquillity there is avast difference. The act of the man who molests thegirls in lonely places causes a disturbance in theeven tempo of living which is the first requirementof public order. He disturbs the society and thecommunity. His act makes all the women apprehensive oftheir honour and he can be said to be causingdisturbance of public order and not merelycommitting individual actions which may be taken noteof by the criminal prosecution agencies. It meanstherefore that the question whether a man has onlycommitted a breach of law and order or has acted in amanner likely to cause a disturbance of the publicorder is a question of degree and the extent of thebreach of the act upon the society. The Frenchdistinguish law and order and public order bydesignating the latter as order publique. The latterexpression has been recognised as meaning somethingmore than ordinary maintenance of law and order.Justice Ramaswami in Writ Petition No.179 of 1968drew a line of demarcation between the serious andaggravated forms of breaches of public order whichaffect the community or endanger the public interestat large from minor breaches of peace which do notaffect the public at large. He drew an analogybetween public and private crimes. The analogy isuseful but not to be pushed too far. A large https://hcservices.ecourts.gov.in/hcservices/ number of acts directed against persons orindividuals may total up into a breach of publicorder. In Dr. Ram Manohar Lohia's case exampleswere given by Sarkar and Hidayatullah, JJ. They showhow similar acts in different contexts affectdifferently law and order on the one hand and publicorder on the other. It is always a question ofdegree of the harm and its effect upon the community.The question to ask is : Does it lead to disturbanceof the current of life of the community so as toamount a disturbance of the public order or does itaffect merely an individual leaving the tranquillityof the society undisturbed? This question has to befaced in every case on facts. There is not formulaby which one case can be distinguished from another.”66. The said decision supports the contention of the learnedSenior Counsel for the petitioner rather than the contentions putforth by the learned Public Prosecutor. Similar acts in differentcontexts affect differently law and order on the one hand and publicorder on the other. It is always a question of degree of the harmand its effect upon the community. The question to ask is : Does itlead to disturbance of the current life of the community so as toamount a disturbance of the public order or does it affect merelyan individual leaving the tranquility of the society undisturbed?This question has to be faced in every case on facts. In thiscase, on the materials relied upon by the detaining authority, wecome to the conclusion that the activities of the detenu and hisassociates are directed only against individuals and such conductmay be reprehensible but it does not add up to the situationwhere it may be said that the community at large was beingdisturbed or in other words there was a breach of public order orlikelihood of a breach of public order. Public order was said toembrace more of the community than law and order. Public order isthe even tempo of the life of the community taking the country asa whole or even a specified locality. Disturbance of public orderis to be distinguished from acts directed against individualswhich do not disturb the society to the extent of causing a generaldisturbance of public tranquility and therefore, we are of theconsidered view that the contention put forth by the learnedPublic Prosecutor cannot be countenanced. 67. We are of the considered view that the alleged acts saidto have been committed by the detenu will not amount to causingdisturbance to the public order but it will amount to only law andorder problem which could be effectively dealt with under ordinarycriminal laws and therefore, the subjective satisfaction arrivedat by the detaining authority is vitiated and the same cannot besustained. https://hcservices.ecourts.gov.in/hcservices/

68. Further, the learned Public Prosecutor submitted thatthe detaining authority has not only relied upon the occurrencerelating to Cr.No.27 of 2011 on the file of the District CrimeBranch but also relied upon the occurrences relating to Cr.No.38 of2011 on the file of the Central Crime Branch Salem City and Cr.No.1of 2011 on the file of Central Crime Branch, Tiruppur and Cr.No.108of 2011 City Crime Branch, Coimbatore for coming to the subjectivesatisfaction that the detenu had created panic and a feelinginsecurity in the minds of people of that area and thereby actedin a manner prejudicial to the maintenance of public order. 69. But the aforesaid contention of the learned PublicProsecutor, cannot be countenanced for the following reasons:-70. Before considering the aforesaid submissions of thelearned Additional Public Prosecutor, it will be useful to refer tothe provisions contained under Section 3(1) of the Act, thedefinition of "acting in any manner prejudicial to the maintenance ofpublic order" in Sections 2(1)(a)(iii) of the Act and the definitionof 'goonda' in Section 2(f) of the Act. Section 3(1) of the Act readsas follows : "3. Power to make orders detaining certain persons :(1) The State Government may, if satisfied with regard toany bootlegger or drug offender or video pirates or forestoffender or goonda or immoral traffic offender or slumgrabber that with a view to prevent him acting in anymanner prejudicial to the maintenance of public order, itis necessary so to do, make an order directing that suchperson be detained." Section 2(1) (a)(iii) reads as follows :"In this Act, unless the context otherwise requires :(a) "acting in any manner prejudicial to themaintenance of public order" means -(iii) in the case of a goonda, when he is engaged, oris making preparations for engaging, in any of hisactivities as a goonda which affect adversely, or likely toaffect adversely, the maintenance of public order."Section 2(f) of the Act reads as follows : " 'Goonda' means a person, who either by himself or asa member of or leader of a gang, habitually commits, orattempts to commit or abets the commission of offences,punishable under Chapter XVI or Chapter XVII or Chapter XXIIof the Indian Penal Code, 1860 (Central Act XIV of 1860).71. A conjoint reading of the aforesaid provisions makes itclear that before exercising the powers conferred on the StateGovernment or the Authority empowered to pass an order of detentionunder Section 3(1) of the Act, the State Government or the Authorityshould be satisfied with respect to any 'goonda' that with a view toprevent him from acting in any manner prejudicial to the maintenance https://hcservices.ecourts.gov.in/hcservices/ of public order, it is necessary so to make an order to direct such aperson to be detained. Therefore, in our considered view, Section 3(1) of the Act lays down a twin test to be satisfied before a personcoming under the definition of a 'goonda' to be detained under theAct as a goonda. The first rest to be satisfied is that the DetainingAuthority should be satisfied that a person comes under thedefinition 'goonda' as defined under Section 2(f) of the Act and thenthe Detaining Authority also should be satisfied that it is necessaryto detain him with a view to prevent him from acting in any mannerprejudicial to the maintenance of public order. While coming to thesecond limb of the test, namely the second test, the DetainingAuthority should come to the subjective satisfaction that such goondahas acted or is acting in any manner prejudicial to the maintenanceof public order. 72. While considering the materials placed before theDetaining Authority to come to the subjective satisfaction that suchgoonda is acting in any manner prejudicial to the maintenance ofpublic order, the Detaining Authority should consider the definitionof 'acting in any manner prejudicial to the maintenance of publicorder' as contained in Section 2(1)(a)(iii) of the Act. Therefore, itis incumbent on the part of the Detaining Authority to be satisfiedthat in the case of a goonda, when he is engaged or is makingpreparations for engaging in any of his activities as a goonda, whichaffects adversely or like to affect adversely the maintenance ofpublic order. While considering this aspect, the Detaining Authority,on the basis of the materials placed before him, should come to thesubjective satisfaction as to whether the goonda is already engaged,which refers to the past acts or offences committed by the goonda andwhether he is making preparations for engaging in any of hisactivities as a goonda, which affects adversely or likely to affectadversely the maintenance of public order. Unless both the aforesaidtests are satisfied, an order of detention cannot be passed against aperson simply because such a person satisfies the definition of'goonda' alone as defined under Section 2(f) of the Act. Therefore,the aforesaid contention of the learned Additional Public Prosecutorhas to be considered in the light of the particular facts of thiscase and this Court has to further consider as to whether, in thiscase, the four cases relied upon by the Detaining Authority satisfythe twin tests stated above.73. The particulars relating to the occurrence in respectof the case in Cr.No.38 of 2011 registered by the Central CrimeBranch Salem have been set out at page 1 of the grounds ofdetention. Similarly, the particulars relating to the occurrencein respect the case in Cr.No.1 of 2011 registered by the CentralCrime Branch Tiruppur have been set out at pages 2 and 3 of thegrounds of detention. Similarly, the particulars relating to theoccurrence in respect the case in Cr.No.108 of 2011 registered bythe Central Crime Branch Coimbatore City have been set out at pages https://hcservices.ecourts.gov.in/hcservices/ 3 and 4 of the grounds of detention. 74. A perusal of the said particulars relating to theaforesaid three crime numbers do not disclose that the occurrencestook place in public view and in a public place and public werethreatened and created panic in the minds of the public and thepeace of particular locality or localities was affected in anymanner. In the absence of such particulars, it could not be saidthat even tempo of the public was affected in that area or areasconcerned and the said occurrences created a public order problem.In fact, the detaining authority has not in detail considered theparticulars and the material facts relating to the aforesaidthree crime numbers and has not specifically mentioned in the groundsof detention that the acts committed by the detenu in respect ofthe aforesaid crime numbers, created panic in the minds of thepublic of that particular locality or the public got terrorised. 75.In our considered view, the aforesaid three cases couldnot be said to have created any public order problem but it couldhave created law and order problem only and therefore, the contentionof the learned Public Prosecutor cannot be countenanced. 76.The last submission of the learned Senior Counselrelating to delay in disposal of the post detention representation,the order of rejection is said to have been passed only on 5.12.2011and not on 27.11.2011 when the Minister affixed his signature inthe note file and the various decisions relied upon by the learnedSenior Counsel and the contentions of the learned Public Prosecutorand the decisions relied upon by him are not considered by us, inthis case, as the impugned order of detention, as pointed out,discussed and held above, is liable to be quashed on the aforesaidthree grounds. For the aforesaid reasons, the impugned order of detentionis to be set aside. Accordingly, the impugned order of detention isset aside and the HCP is allowed. The detenu Martin S/o.Santiagois ordered to be set at liberty forthwith unless his custody isrequired in connection with any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ rnb To1 THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, COIMBATORE. 2. THE SECRETARY TO GOVERNMENT HOME, PROHIBITION & EXCISE DEPARTMENT, SECRETARIAT, FORT ST. GEORGE CHENNAI.3.THE CENTRAL PRISON, COIMBATORE.4.THE JOINT SECRETARY TO GOVERNMENTPUBLIC (LAW AND ORDER)FORT ST.GEORGE, CHENNAI-9.5.THE PUBLIC PROSECUTORHIGH COURTMADRAS-104.+ 2 CCS To Mr.R.Srinivas Advocate SR NO.21341 H.C.P.No.1636 of 2011KSK(CO)ABH/17.04.2012