Lalli v. The Commissioner of Police & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.12.2007CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.1565 of 2007Lalli.. PetitionerVs1. The Commissioner of Police Egmore, Chennai-8.2. The Secretary to Government Prohibition and Excise Department Tamil Nadu Government Secretariat, Chennai-600 009... Respondents-----Petition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.-----For Petitioner : Mr.K.J.NithianandamFor Respondents: Mr.N.R.Elango Addl. Public Prosecutor-----O R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The second respondent herein clamped an order of detention asagainst the detenu viz., Dilip @ Dilipkumar, son of Kumar, as the saidauthority arrived at the subjective satisfaction that the said detenuis a Goonda and he has to be detained under Section 3(1) of the TamilNadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Officers, Goondas, Immoral Traffic Offenders, Sand https://hcservices.ecourts.gov.in/hcservices/ Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act14 of 1982).2. Challenging the abovesaid detention, the wife of the detenuhas come forward with the present Habeas Corpus Petition seeking awrit of habeas corpus to call for the records pertaining to thedetention order passed against the detenu by the second respondent inMemo No.374/BDFGISSV/2007, dated 24.9.2007, set aside the same and todirect the respondents to produce the body of the detenu, nowdetained at Central Prison, Chennai before this Court and set him atliberty.3.1. The order of detention dated 11.8.2007 was passed on thebasis of ground case in Crime No.353 of 2007 for alleged commissionof offences under Sections 395 r/w 397 and 506(ii) IPC, complaint ofwhich was lodged by one Jothi. According to the complainant, on11.8.2007 at about 12.30 hours, he was proceeding towards Kolathur inhis motorcycle. When he was nearing Tambaram bus stop, the detenuherein and four others viz., Siva @ Sivakumar, Senthil @Senthilkumar, Maya @ Mayakrishnan and Rajesh came in two motor cyclesand wrongfully restrained him and demanded money and gold ring at theknife point. When he refused to give, Senthil @ Senthilkumarsnatched gold ring and cell phone from the complainant. Siva @Sivakumar voluntarily inserted his hand into the pant pocket of thecomplainant and took away a sum of Rs.1100/-. Maya @ Mayakrishnanasked him to hand over the gold chain and the complainant repliedthem as if he has no chain with him. Further, Maya assaulted thecomplainant over his chest. The complainant raised hue and cry. Atthat time, Rajesh took out knife and stabbed over his chest byuttering filthy words. The complainant warded off the attck with hisright hand. The public who were at the spot came for his rescue. Onseeing the public, the detenu and his associates picked up soda waterbottles from the nearby shop and hurled the same against them. Thebottles fell on the road side and scattered all over the road. Thepublic ran to safer places out of fear of danger to their lives andproperties, and thus the detenu created terror and panic at the spot.However, the complainant with the help of public apprehended thedetenu and his associates and handed over them to the Inspector ofPolice, M-1 Madhavaram Police Station. Based on the complaint givenby the complainant, a case, as stated above, was registered. 3.2. The second respondent, taking note of the above case as aground case and finding that there are two adverse cases pendingagainst the detenu in Crime Nos.5 and 133 of 2007 on the file of M-2MM colony Police Station for the offence punishable under Section 379I.P.C., having satisfied that there is a compelling necessity todetain him in order to prevent him from indulging in the activitieswhich are prejudicial to the maintenance of public order, ordered hisdetention branding him as a Goonda. https://hcservices.ecourts.gov.in/hcservices/

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 said two adverse cases relate to the offence punishableunder Section 379 I.P.C., and therefore, the solitary instance ofrobbery mentioned in the ground case is not relevant for sustainingthe order of detention and hence, the impugned order of detentionsuffers on the ground of non-application of mind on the part of thedetaining authority.5. We have heard learned Additional Public Prosecutor on theabove said point.6. As rightly pointed out by the learned counsel for thepetitioner, it is evident that the adverse cases mentioned in thegrounds of detention do not relate to any law and order problem.But, the offence said to have been committed by the detenu as per theground case attracts the provisions of the Tamil Nadu Act 14 of 1982.7.1. In DARPAN KUMAR SHARMA alias DHARBAN KUMAR SHARMA v. STATEOF TAMIL NADU [(2003) 1 CRIMES 446], cited supra, whereunder theorder of detention was based on the solitary instance of robbery, theApex Court held as follows:-"... 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."7.2. That apart, the above ratio laid down by the Apex Court wasfollowed by a Division Bench of this Court, in which one of us(P.D.DINAKARAN, J.) was a party, in MALA v. THE SECRETARY TOGOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT, GOVT. OF TAMIL NADU,CHENNAI, [(2004) M.L.J. (Crl.) 306].8. Admittedly, in the instant case, the adverse cases relate tothe offence of theft punishable under Section 379, IPC and the ground https://hcservices.ecourts.gov.in/hcservices/ case relates to the offence of robbery punishable under Section 392IPC and hence, we are of the opinion that the ratio laid down inDARPAN KUMAR SHARMA's case, cited supra, squarely applies to thepresent case on hand, which is also not disputed by the learnedAdditional Public Prosecutor.9. Applying the ratio laid down by the Apex Court in DarpanKumar Sharma's case, cited supra, we are inclined to set aside theorder of detention, Accordingly, the order of detention dated24.9.2007 is set aside and the Habeas Corpus Petition is allowed.The detenu Dilip @ Dilipkumar is directed to be released forthwith,unless he is required in any other case. Sd/Asst.Registrar/true copy/Sub Asst.Registrar ATRTo1. The Commissioner of Police Egmore, Chennai-8.2. The Secretary to Government Prohibition and Excise Department Tamil Nadu Government Secretariat, Chennai-600 009.3. The Superintendent Central Prison Puzhal, Chennai.4. The Public Prosecutor High Court, Madras.5.The Joint Secretary to GovernmentPublic (Law & Order) DepartmentFort St. George, Chennai-9.AKR (CO)km/24.12.HCP No.1565 of 2007.