CORAMTHE HONOURABLE MR v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.11.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1183 of 2007Ellumalai.. Petitioner(TPDA.No.5177)Vs.1. The State of Tamil Nadu rep. by its Secretary to Government Prohibition and Excise XII Department Fort St.George, Chennai-9.2. The District Magistrate and District Collector Tiruvannamalai District Tiruvannamalai... RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia to issue Habeas Corpus as stated therein to directing therespondents to produce the body of the petitioner Ellumalai, Son ofGovindaraj Naicker who is detained in the Central Prison, Vellorebefore this Hon'ble Court and pass an order to call for the recordsof detention order imposed on the petitioner in detention orderD.O.30/2007 dated 5.7.2007 passed by the second respondent and setaside the same and set the detenu at liberty.For Petitioner : Mr.L.PoompavaiFor Respondents : Mr.N.R.Elango Addl. Public ProsecutorO R D E R(Order of the Court was made by P.D.DINAKARAN,J.)Challenging the order of detention dated 5.7.2007 made inD.O.No.30/2007-C2, passed by the second respondent branding the https://hcservices.ecourts.gov.in/hcservices/ petitioner as a 'Goonda' under the provisions of the Tamil NaduPrevention of Dangerous Activities of Bootleggers, Drug Offenders,Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil NaduAct 14 of 1982), the petitioner, who is now confined in CentralPrison, Vellore, has filed this Habeas Corpus Petition to set asidethe order of detention and directing the respondents to produce himbefore this Court and set him at liberty.2. The ground case based on which the impugned order ofdetention has been passed is that on 15.4.2007 at about 1800 hours,when one Raghupathi, the complainant was going to Bazar by bicycle,the detenu waylaid and pulled his shirt, took out a knife andsnatched Rs.300/- from the shirt pocket of the complainant. Whenthe complainant shouted for rescue, the public tried to catch him,but the detenu threw soda bottles and threatened them by showingpen knife, and taking advantage of the situation, the detenuescaped. Based on the complaint given by the complainant, a casein Crime No.221 of 2007 has been registered on the file of foroffences punishable under Sections 341, 294(b), 392 and 506(2)I.P.C. and the detenu was arrested and sent for judicial remand.3. Taking into consideration the above said ground case aswell as twenty eight adverse cases, which are for the offencespunishable under Sections 457(ii), 380 read with 75, 380, 379 readwith 75 IPC, the second respondent/detaining authority havingsatisfied that there is a compelling necessity to detain the detenuin order to prevent him from indulging in the activities which areprejudicial to the maintenance of public order, ordered hisdetention dubbing him as a Goonda.4. The learned counsel for the petitioner placing reliance onthe decision of the Apex Court in DARPAN KUMAR SHARMA alias DHARBANKUMAR SHARMA v. STATE OF TAMIL NADU [(2003) 1 CRIMES 446],contends that the adverse cases relate to the offences punishableunder Sections 457(ii), 380 read with 75, 380, 379 read with 75IPC, and therefore, the solitary instance of robbery mentioned inthe ground case is not relevant for sustaining the order ofdetention and hence, the impugned order of detention suffers on theground of non-application of mind on the part of the detainingauthority.5. Mr.N.R.Elango, learned Additional Public Prosecutorsupporting the order of detention contends that the detenu ishabitually committing crime and has also acted in a mannerprejudicial to the maintenance of public order and his detention isjustified. https://hcservices.ecourts.gov.in/hcservices/

6. We have perused the entire materials placed before us andheard the submissions of both sides.7. With regard to the submission that the detenu is habituallycommitting crime, a reference to the decision of the Apex Court inR. Kalavathi v. State of T.N.,(2006) 6 SCC 14 would be relevant:"10. Habitual: the meaning of the words “habit” and“habitual” as given in Advanced Law Lexicon , (3rd Edn.) byP. Ramanatha Aiyar is: “ Habit .—Settled tendency or practice, mentalconstitution. The word ‘habit’ implies a tendency orcapacity resulting from the frequent repetition of thesame acts. The words by ‘ habit ’ and ‘ habitually ’imply frequent practice or use.” “ Habitual .—Constant; customary; addicted to aspecified habit.” 11. This Court in Vijay Narain Singh v. State of Bihar, 1984(3) SCC 14 considered the question of a habitual criminaland in para 31 the expression “habitually” was explained asfollows: “The expression ‘habitually’ means ‘repeatedly’ or‘persistently’. It implies a thread of continuitystringing together similar repetitive acts. Repeated,persistent and similar, but not isolated, individualand dissimilar acts are necessary to justify aninference of habit.” The expression “habitual” would mean repeatedly orpersistently and implies a thread of continuity stringingtogether similar repeated acts. An isolated default of rentwould not mean that the tenant was a habitual defaulter.(See Vijay Amba Das Diware v. Balkrishna Waman Dande, 2000(4) SCC 126) https://hcservices.ecourts.gov.in/hcservices/

12. The expression “habit” or “habitual” has not beendefined under the Gujarat Prevention of Anti-SocialActivities Act, 1985. The word “habitually” does not referto the frequency of the occasions but to the invariabilityof a practice and the habit has to be proved by totality offacts. It, therefore, follows that the complicity of aperson in an isolated offence is neither evidence nor amaterial of any help to conclude that a particular person isa “dangerous person” unless there is material suggesting hiscomplicity in such cases, which lead to a reasonableconclusion that the person is a habitual criminal. The word“habitually” means “usually” and “generally”. Almost similarmeaning is assigned to the word “habit” in Aiyar’s JudicialDictionary , 10th Edn., at p.485. It does not refer to thefrequency of the occasions but to the invariability ofpractice and the habit has to be proved by totality offacts. (See Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta, 1995(3) SCC 237). 13. The expression “habitually” is very significant. Aperson is said to be a habitual criminal who by force ofhabit or inward disposition is accustomed to commit crimes.It implies commission of such crimes repeatedly orpersistently and prima facie there should be continuity inthe commission of those offences. (See Ayub v. S.N. Sinha,1990 (4) SCC 552) 14. From one single transaction though consisting of severalacts, a habit cannot be attributed to a person."8. That apart, the Apex Court in DARPAN KUMAR SHARMA @ DHARBANKUMAR SHARMA v. STATE OF TAMIL NADU, referred supra, held asfollows:-"... Though in the grounds of detention the detainingauthority had stated that by committing this offence inpublic the detenu created a sense of alarm, scare and afeeling of insecurity in the minds of the public of thearea and thereby acted in a manner prejudicial to themaintenance of public order which affected the even tempoof life of the community, but citation of these words inthe order of detention is more in the nature of a ritualrather than with any significance to the content of thematter. Thus, a solitary instance of robbery asmentioned in the grounds of detention is not relevant forsustaining the order of detention for the purpose of https://hcservices.ecourts.gov.in/hcservices/ preventing the petitioner from acting in a mannerprejudicial to the maintenance of public order."9. The above ratio laid down by the Apex Court in DARPAN KUMARSHARMA @ DHARBAN KUMAR SHARMA v. STATE OF TAMIL NADU, referredsupra, was subsequently followed by a Division Bench of this Court,in which one of us (P.D.DINAKARAN, J.) was a party, in MALA v. THESECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT, GOVT.OF TAMIL NADU, CHENNAI, [(2004) M.L.J. (Crl.) 306].10. Any disorderly behaviour of a person in the public orcommission of a criminal offence is bound, to some extent, affectthe peace prevailing in the locality and it may also affect law andorder but the same need not affect maintenance of public order. Asrightly pointed out by the learned counsel for the petitioner, inthe instant case, the adverse cases relate to the offencepunishable under Sections 457(ii), 380 read with 75, 380, 379 readwith 75 IPC, whereas there is only one solitary instance, viz., theground case, where the detenu had robbed in the public. In view ofthe decision in R. Kalavathi v. State of T.N.,(2006) 6 SCC 14, fromone single transaction, though consisting of several acts, a habitcannot be attributed to a person, and the stand taken by thedetaining authority that the detenu is habitually committing crimeand acted in a manner prejudicial to the maintainable of publicorder cannot be sustained. Moreover, there is no material onrecord to show that the reach and potentiality of the singleincident of robbery was so great as to disturb the even tempo ornormal life of the community in the locality or disturb generalpeace and tranquillity or create a sense of alarm and insecurity inthe locality. We are of the considered opinion that the ratio laiddown in DARPAN KUMAR SHARMA's case, cited supra, squarely appliesto the case on hand.For the reasons aforesaid, the impugned order of detentionsuffers for non-application of mind and as such, the same is liableto be set aside and accordingly, the same is set aside. Thispetition is allowed. The order of detention dated 5.7.2007 is setaside. The detenu is directed to be set at liberty forthwithunless his presence is required connection with in any other crime.No costs.sasiSd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to Government State of Tamilnadu Prohibition and Excise XII Department Fort St.George, Chennai-9.2. The District Magistrate and District Collector Tiruvannamalai District Tiruvannamalai.3. The Superintendent, Central Prison, Vellore.4. The Joint Secretary to Government, Public (Law and Order) Department Fort St. George, Chennai-9.5. The Public Prosecutor, High Court, Madras.Sa (co)dv/6.12.H.C.P.No.1183 of 2007