Moideenpitchai v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 31.10.2007CORAM :THE HONOURABLE MR. JUSTICE P.D.DINAKARANandTHE HONOURABLE MR. JUSTICE R.REGUPATHIH.C.P. No. 1057 of 2007Moideenpitchai... Petitioner Vs.1. The State of Tamilnadu rep. by its Secretary to Government, Prohibition and Excise Department Fort St. George, Chennai 600 009.2. The Commissioner Egmore, Chennai 600 008. ... RespondentsPetition under Article 226 of The Constitution of India praying for aWrit of Habeas Corpus as stated therein.For Petitioner :Mr. R.ThanjanFor Respondents:Mr. N.R.ElangoAdditional Public ProsecutorO R D E R(Order of the Court was made by P.D. DINAKARAN. J)Challenging the order of detention dated 31.3.2007 made inNo.131/BDFGISSV/2007, passed by the second respondent branding thepetitioner as a 'Goonda' under the provisions of the Tamil Nadu Preventionof Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders,Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers andVideo Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), the petitioner, nowconfined in Central Prison, Puzhal, Chennai, has filed this Habeas CorpusPetition to set aside the order of detention and directing the respondentsto produce him before this Court and set him at liberty.2. The ground case based on which the impugned order of detentionhas been passed is that on 19.3.2007, while the complainant Mani wasproceeding near the junction of Josier Street and Nageshavar Rao Street, https://hcservices.ecourts.gov.in/hcservices/ the detenu, who came in an auto, wrongfully restrained him and threatenedto hand over some money. When the complainant refused, the detenu beathim, due to which the complainant fell down and immediately, the detenu,at the point of knife, took away cash of Rs.325/- and also snatched thegold ring from the complainant and attempted to escape. The complainant,raising hue and cry, chased the detenu and on hearing the cry, the public,who gathered there, also tried to apprehend the detenu. On seeing them,the detenu pelted stones on the public, creating a terror and panicsituation at the place and using the panic situation, when the detenutried to escape, the complainant with the help of the public, apprehendedthe detenu and handed over him to the police. On the complaint given bythe complainant, a case in Crime No.294 of 2007 has been registered on thefile of F3 Nungambakkam Police Station for offences punishable underSections 341, 336, 392 and 506(2) I.P.C. and the detenu was arrested andsent for judicial remand.3. Taking into consideration the above said ground case as well aseleven other adverse cases, viz., Cr.No.172/2004 for the offences underSections 379, 323, 307 and 506(2) I.P.C. on the file of G1 Vepery P.S.,Cr.Nos.1256/2005, 1258/2005, 1259/2005, 1257/2005 for the offence underSection 379 I.P.C. on the file of Redhills Police Station,Cr.Nos.813/2005, 814/2005, 809/2005 and 810/2005 for the offence underSection 379 I.P.C. on the file of Manali Police Station andCr.Nos.289/2007 and 293/2007 for the offence under Section 379 I.P.C. onthe file of F3 Nungambakkam Police station, the secondrespondent/detaining authority having satisfied that there is a compellingnecessity to detain the detenu in order to prevent him from indulging inthe activities which are prejudicial to the maintenance of public orderand public health, ordered his detention dubbing him as a Goonda.4. The learned counsel for the petitioner/detenu, assailed the orderof detention on the ground of non-application of mind. He submits thatthere is no proximity between the first adverse case, which was registeredfor offences including 379 and 307 I.P.C. and the ground case, which wasregistered for the offence under Section 392 I.P.C. and the other adversecases registered for the offence under Section 379 I.P.C. also cannot berelied upon while passing the detention order, as they only relate to lawand order problem and what remains is only the ground case and in view ofthe decision of the Apex Court in DARPAN KUMAR SHARMA alias DHARBAN KUMARSHARMA v. STATE OF TAMIL NADU [(2003) 1 CRIMES 446], the solitaryinstance of robbery mentioned in the ground case is not relevant forsustaining the order of detention. 5. We have heard learned Additional Public Prosecutor on the abovesaid point. https://hcservices.ecourts.gov.in/hcservices/

6. As rightly pointed out by the learned counsel for the petitioner,it is evident that the first adverse case would have no impact whilepassing the order of detention for want of proximity, as the occurrence inthe said case had taken place on 8.2.2004. Similarly, other adverse casesmentioned in the grounds of detention also cannot be relied upon, as theydo not relate to any law and order problem. But, the offence said to havebeen committed by the detenu as per the ground case attracts theprovisions of the Tamil Nadu Act 14 of 1982, as per which, the actsprejudicial to public order are "when he is engaged, or is makingpreparations for engaging, in any of these activities as a goonda whichaffect adversely, or are likely to affect adversely, the maintenance ofpublic order".7.1. In DARPAN KUMAR SHARMA alias DHARBAN KUMAR SHARMA v. STATE OFTAMIL NADU [(2003) 1 CRIMES 446], cited supra, whereunder the order ofdetention was based on the solitary instance of robbery, the Apex Courtheld as follows:-"... Though in the grounds of detention the detaining authorityhad stated that by committing this offence in public the detenucreated a sense of alarm, scare and a feeling of insecurity inthe minds of the public of the area and thereby acted in amanner prejudicial to the maintenance of public order whichaffected the even tempo of life of the community, but citationof these words in the order of detention is more in the natureof a ritual rather than with any significance to the content ofthe matter. Thus, a solitary instance of robbery as mentionedin the grounds of detention is not relevant for sustaining theorder of detention for the purpose of preventing the petitionerfrom acting in a manner prejudicial to the maintenance of publicorder."7.2. The above ratio laid down by the Apex Court was followed by aDivision Bench of this Court, in which one of us (P.D.DINAKARAN, J.) was aparty, in MALA v. THE SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISEDEPARTMENT, GOVT. OF TAMIL NADU, CHENNAI, [(2004) M.L.J. (Crl.) 306].8. Admittedly, in the instant case, adverse cases 2 to 11 relate tothe offence of theft punishable under Section 379 I.P.C. and the groundcase relates to the offence of robbery punishable under Section 392 I.P.C.and hence, the ratio laid down in DARPAN KUMAR SHARMA's case, cited supra,squarely applies to the present case. Therefore, we are of theconsidered view that the impugned order of detention vitiates on theground of non-application of mind. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the order of detention is set aside and the HabeasCorpus Petition is allowed. The detenu is directed to be releasedforthwith, unless he is required in any other case. sraSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government, Prohibition and Excise Department Fort St. George, Chennai 600 009.2. The Commissioner of Police, Egmore, Chennai 600 008.3. The Public Prosecutor High Court of Judicature at Madras Madras – 600 104.4. The Superintendent Central Prison, Puzhal, Chennai.5. the Joint Secretary to Govt, Public (Law and Order) Fort St George, Chennai.9+ One cc to Mr. R. Thanjan, Advocate sR 65778SCD (co)sg14/11/07HCP.No.1057 of 2007