CORAMTHE HONOURABLE MR v. The Secretary to Government Government of Tamilnadu Home, Prohibition and Excise Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 6.12.2007CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1403 of 2007Ashok Kumar.. PetitionerVs.1. The Secretary to Government Government of Tamilnadu Home, Prohibition and Excise Department Secretariat, Chennai-9.2. The Commissioner of Police Greater Chennai... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiato issue Habeas Corpus as stated therein.For Petitioner : Mr.M.sankarFor 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 28.6.2007 made in MemoNo.267/2007, passed by the second respondent branding the petitioneras a 'Goonda' under the provisions of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), thepetitioner, who is now confined in Central Prison, Puzhal, Chennai-66, has filed this Habeas Corpus Petition to set aside the order ofdetention and directing the respondents to produce him before thisCourt and set him at liberty.2. The ground case based on which the impugned order ofdetention has been passed is that on 19.6.2007 at 11.00 pm, when oneKumar (complainant) was running his mobile canteen, the detenu andhis associates had tiffin and did not pay money. When the https://hcservices.ecourts.gov.in/hcservices/ complainant asked money, they beat him. The public who were takingtiffin came for his rescue, but the associate of the detenu took outa knife, brandished the same and threatened the public. The detenupicked up eatables and threw the same on the road and threw the sidedishes on the road. The detenu took away Rs.400/- kept in the cashbox. Taking advantage of the panic situation, the detenu and hisassociates escaped. Based on the complaint given by the complainant,a case in Crime No.905 of 2007 was registered for offences punishableunder Sections 341, 323, 427, 392 and 307 I.P.C., the case was takenup for investigation, the detenu was arrested and sent for judicialremand.3. Taking into consideration the above said ground case as wellas four adverse cases, which are all for the offence punishableunder Section 379 IPC, the second respondent having satisfied thatthere is a compelling necessity to detain the detenu in order toprevent him from indulging in the activities which are prejudicial tothe maintenance of public order, ordered his detention dubbing himas 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], contendsthat the adverse cases relate to the offences punishable underSection 379 I.P.C., and therefore, the solitary instance of robberymentioned in the ground case is not relevant for sustaining the orderof detention and hence, the impugned order of detention suffers onthe ground 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.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 in R.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.) by P. RamanathaAiyar is: https://hcservices.ecourts.gov.in/hcservices/ “ 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 criminal andin 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, individual anddissimilar acts are necessary to justify an inference ofhabit.” 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. (SeeVijay Amba Das Diware v. Balkrishna Waman Dande, 2000 (4) SCC126) 12. The expression “habit” or “habitual” has not been definedunder the Gujarat Prevention of Anti-Social Activities Act,1985. The word “habitually” does not refer to the frequency ofthe occasions but to the invariability of a practice and thehabit has to be proved by totality of facts. It, therefore,follows that the complicity of a person in an isolated offenceis neither evidence nor a material of any help to concludethat a particular person is a “dangerous person” unless thereis material suggesting his complicity in such cases, whichlead to a reasonable conclusion that the person is a habitualcriminal. The word “habitually” means “usually” and“generally”. Almost similar meaning is assigned to the word“habit” in Aiyar’s Judicial Dictionary , 10th Edn., at p.485.It does not refer to the frequency of the occasions but to theinvariability of practice and the habit has to be proved bytotality of facts. (See Mustakmiya Jabbarmiya Shaikh v. M.M.Mehta, 1995 (3) SCC 237). https://hcservices.ecourts.gov.in/hcservices/

13. The expression “habitually” is very significant. A personis said to be a habitual criminal who by force of habit orinward disposition is accustomed to commit crimes. It impliescommission of such crimes repeatedly or persistently and primafacie there should be continuity in the commission of thoseoffences. (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 as mentionedin the grounds of detention is not relevant for sustainingthe order of detention for the purpose of preventing thepetitioner from acting in a manner prejudicial to themaintenance 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. OFTAMIL 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, affect thepeace prevailing in the locality and it may also affect law and orderbut the same need not affect maintenance of public order. As rightlypointed out by the learned counsel for the petitioner, in the instantcase, all the adverse cases relate to the offence punishable underSections 379 IPC, whereas there is only one solitary instance, viz.,the ground case, where the detenu had robbed in the public. In viewof the decision in R. Kalavathi v. State of T.N.,(2006) 6 SCC 14,from one single transaction, though consisting of several acts, ahabit cannot be attributed to a person, and the stand taken by the https://hcservices.ecourts.gov.in/hcservices/ detaining authority that the detenu is habitually committing crimeand acted in a manner prejudicial to the maintainable of public ordercannot be sustained. Moreover, there is no material on record toshow that the reach and potentiality of the single incident ofrobbery was so great as to disturb the even tempo or normal life ofthe community in the locality or disturb general peace andtranquillity or create a sense of alarm and insecurity in thelocality. We are of the considered opinion that the ratio laid downin DARPAN KUMAR SHARMA's case, cited supra, squarely applies to thecase 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 28.6.2007 is setaside. The detenu is directed to be set at liberty forthwith unlesshis presence is required connection with in any other crime. Nocosts.sasiSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1. THE SECRETARY TO GOVERNMENTGOVERNMENT OF TAMIL NADU HOME PROHIBITION AND EXCISE DEPARTMENT,SECRETARIAT,CHENNAI-092. THE COMMISSIONER OF POLICEGREATER CHENNAI3. THE PUBLIC PROSECUTORHIGH CORUT, CHENNAI.4. THE SUPERINTENDENT OF CENTRALPRISON, PUZHAL, CHENNAI.5. THE JOINT SECRETARY TO GOVTPUBLIC (LAW & ORDER) DEPARTMENT, FORT ST GEORGE, CHENNAI.9.+ One cc to Mr. Sankar, Advocate Sr 72226VSV (co)sg 05/01/08H.C.P.No.1403 of 20076.12.2007