Smt. KrishnaveniW/o. Senthil @ Senthil Kumar v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16-08-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MRS. JUSTICE R. BANUMATHIHABEAS CORPUS PETITION NO.366 OF 2007Smt. KrishnaveniW/o. Senthil @ Senthil Kumar.. PetitionerVs.1. State of Tamil Nadu, Rep. by its Secretary to Government, Home Prohibition & Excise Department, Fort St. George, Secretariat, Chennai 600 009.2. The Commissioner of Police, Greater Chennai, Egmore, Chennai 8... RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of writ of Habeas Corpus to call for the recordspertaining to the order of detention passed by the secondrespondent in his proceedings in No.55/2007 dated 21.2.2007 and setaside the same and direct the respondents to produce the detenuSenthil @ Senthil Kumar, S/o. Ramar, now confined in CentralPrison, Puzhal, Chennai, before this Court and set him at liberty.For Petitioner: Mr.S. Swamidoss Manoharan for Mr.S. Sathish RajanFor Respondents: Mr.M. Babu Muthu Meeran Addl. Public Prosecutor Amicus curiae: Mr.Abudukumar Rajarathinam- - - https://hcservices.ecourts.gov.in/hcservices/ O R D E RP.K. MISRA, JWife of the detenu has filed this Habeas Corpus Petitionchallenging the order of detention dated 21.2.2007 passed by theCommissioner of Police in exercise of the power conferred underSection 3(1) of the Tamil Nadu Prevention of Dangerous Activitiesof Bootleggers, Drug Offenders, Forest Offenders, Goondas, ImmoralTraffic Offenders, Sand Offenders, Slum Grabbers and Video PiratesAct, 1982 (Tamil Nadu Act 14 of 1982) on the allegation that thedetenu is a Goonda.2. In the grounds of detention, reference has been madeto 12 adverse cases. From the details of such cases, as apparentfrom the grounds of detention, it appears that Adverse Case No.1 ofR4 Pondy Bazaar P.S. Cr.No.798/2005, Adverse Case No.3 of, AdverseCase No.6 of Central Crime Branch 'X' Cr.No.830/2006, Adverse CaseNo.7 of S7 Madipakkam P.S. Cr.No.1852/2006, Adverse Case No.9 of'X' Cr.No.54/2007, Adverse Case No.10 of S7 Madipakkam P.S.Cr.No.548/2007, Adverse Case No.11 of S7 Madipakkam P.S.Cr.No.549/2007 and Adverse Case No.12 of S7 Madipakkam P.S.Cr.No.550/2007 were registered under Section 420 IPC. Adverse caseNo.2 of S7 Madipakkam P.S. Cr.No.1722/2005 was registered underSections 420 & 506(ii) IPC, Adverse Case No.4 of S7 Madipakkam P.S.Cr.No.341/2006 was registered under Sections 294(b),341 and 506(ii) IPC, Adverse Case No.5 of T3 Kunrathur P.S. Cr.No.792/2006 wasregistered under Sections 420 & 406 IPC and Adverse Case No.8 ofCentral Crime Branch 'X' Cr.No.47 of 2007 was registered underSections 420, 465, 467, 468 r/w.471 IPC. All these cases wereallegedly committed during the year 2005 or 2006. Modus operandias per the narration available in the grounds of detention was tothe effect that the detenu would go to different shops dealing withconsumer durables and household articles and introduce himself asproprietor of shop M/s.Sri Sivasakthi Company and would take theconsumer durables and household articles for the purpose of dealingthem as dealer and would issue cheques. Subsequently, however,most of the cheques got bounced. Apart from the above adversecases the detaining authority has apparently passed the order ofdetention on the ground case, which is alleged to have occurred on24.10.2006, on which date the detenu came to the shop M/s. Vijexand Company selling copier xerox, computer printers and spare partsfor computers and placed orders for several computer printers. Theshop owner issued three invoices and the detenu issued threecheques towards part payment, out of which the first cheque for https://hcservices.ecourts.gov.in/hcservices/ Rs.50,000/- was cleared, but other two cheques for Rs.1,00,000/-and Rs.2,63,000/-, were returned as there was no sufficient fundsavailable. When being contacted, the detenu used to give replythat the amount would be cleared within a few days. On 30.1.2007,Thiru. Chandrasekar, Manager of M/s.Vijex and Company, came to M/s.Sri Sivasakthi Company and asked about payment of Rs.3,63,700/- andthe detenu replied threateningly and declined to make any paymentand stated that the person would be taken to task and shall not bespared if they go to police. It is also indicated that the detenutook out an iron rod from the shop and rushed to assault Thiru.Chandrasekar and his colleague Prakash, who had accompanied him andthe detenu chased them. Thereafter, a complaint was lodged byChandrasekar on 10.2.2007 before the Commissioner of Police and onproper direction, the Inspector of Police, Central Crime Branchregistered a case in Cr.No.69 of2007 under Sections 406, 420, 341and 506(ii) IPC and the case was taken up for investigation. Thedetenu was arrested and produced before the Judicial Magistrate,Alandur, Chennai on 12.2.2007. The grounds of detention furtherindicated :-"3. ... The offences u/s.341, 406, 420 and 506(ii)IPC relates to wrongful restraint, breach of trust,cheating and dishonestly inducing delivery of property andcriminal intimidation as such punishable under Chapters16, 17 and 22 of the Code. Tr. Senthil @ Senthil Kumar ishabitually committing crime and in accordance to theground case, he under the guise of arranging huge loans tothe businessmen having regard to the amplitude of thegravity of the offence, perpetrated in an organised andsystematic manner, the name of the offence and it isdeleterious effects not only against the victims, but alsoagainst the civilized society at-large, will amount todisturbance of public order and thus he acted in a mannerprejudicial to the maintenance of public order as such heis a Goonda as contemplated u/s 2(f) of the Tamil Nadu Act14 of 1982."Thereafter the detaining authority concluded that the detenu waslikely to be released on bail and passed the order of preventivedetention.3. In the Habeas Corpus Petition it has been explained bythe deponent that certain electronic goods purchased from one M/s.Shakshi Electronics by her husband could not be sold because theywere defective and consequently there was delay in payment. SaidM/s.Shakshi Electronics preferred a complaint during December, 2005before the Assistant Commissioner of Police, Madipakkam. The saidAssistant Commissioner started threatening the detenu with direconsequences. The detenu met the Asst. Commissioner with hisAdvocate and paid a sum of Rs.1,00,000/- by cash and and requestedto pay the same to the complainant and get receipt accordingly. https://hcservices.ecourts.gov.in/hcservices/ But, the Assistant Commissioner evaded in getting receipt andstarted demanding more money from the detenu. Hence, the detenumade a complaint on 16.2.2006 to the Commissioner of Police againstthe Asst. Commissioner of Police. The detenu also approached theHigh Court seeking direction under Section 482 Cr.P.C which wasdisposed of on 14.12.2006 granting liberty to the detenu to proceedfurther against the police official before the appropriate forum inaccordance with law. It is stated that because of such complaintthe police officials started foisting cases against the detenu. Itis therefore claimed that the order of detention passed on suchfoisted cases and on account of malafide motive is required to bequashed.4. Apart from the above, it has been contended that therehas been delay in consideration of the representation sent by thepetitioner to the first respondent on 6.3.2007 and therepresentation dated 7.3.2007, sent by the detenu. It is furthercontended that while dealing with some of the bail applications ithas been observed by various Courts including the High Court thatthe dispute was civil in nature and, therefore, the preventiveorder of detention was unwarranted. The ground case, on the basisof which the detention order was passed, was also denied in totoand it has been highlighted that even though the alleged occurrencetook place on 30.1.2007, the complaint was given on 10.2.2007. Ithas been further contended that in a road accident, the detenusuffered a fracture and he was not even in a position to walk and,therefore, the allegation that the detenu chased the complainantwith iron rod was an absolute false allegation. It is furthercontended that conclusion of the detaining authority that thedetenu was likely to be released on bail was mere ipse dixit andcannot be accepted.5. Last but not the least, it is contended that all theadverse cases mentioned are primarily cases under Section 420 IPCand even the ground case is also primarily a case under Section 420IPC and it cannot be said that the detenu acted in a mannerprejudicial to the maintenance of public order as all the incidentscan be said to be involved only a law and order situation and notprejudicial to the maintenance of public order. Therefore, thesubjective satisfaction of the detaining authority is completelyvitiated.6. It is true that the petitioner has made specificallegations of malafide against the Assistant Commissioner ofPolice. However, such Assistant Commissioner of Police has notbeen impleaded as a party. Moreover, the proposal of preventivedetention has been initiated by the Central Crime Branch and not bythe Assistant Commissioner of Police against whom allegations havebeen made. Merely because some allegations have been made in this https://hcservices.ecourts.gov.in/hcservices/ petition or certain observations have been made in matters relatingto bail orders, it cannot be assumed that the entire PoliceDepartment has acted with malice against the detenu. Moreover, bynow it is well settled that allegations of malafide are more oftenmade, but rarely substantiated. 7. In the above view of the matter, it is difficult toaccept the contention regarding mala fide on the part of the StateGovernment or the Commissioner of Police, who were the authoritiesconcerned in the matter relating to preventive detention in thepresent case. Moreover, it has been already indicated that theperson against whom malafides have been alleged has not beenimpleaded either in his personal capacity as is normally expectedto be done or even in his official capacity.8. The second contention is relating to delay in disposalof representation. It appears that two representations had beenmade almost simultaneously, one by the detenu and the other by wifeof the detenu. Both were received on 8.3.2007 and both weredisposed of by the Minister on 23.3.2007 and rejection letter wasserved on 28.3.2007, after being dispatched by post. We do notfind any discernible delay so as to vitiate the order of detention.9. Next contention is to the effect that dispute inquestion was civil in nature as has been observed in bail ordersand, therefore, no preventive order of detention should have beenpassed. In this context it is also stated that even though theoccurrence relating to the ground case allegedly took place on30.1.2007, the complaint was given on 10.2.2007, after considerabledelay which indicates that false case has been foisted. It is alsostated that as the detenu had suffered fracture, the allegationthat detenu chased the complainant in the ground case wasabsolutely false and the ground case is a foisted one. 10. The order of preventive detention is based on thesubjective satisfaction of the detaining authority. Theobservation made by various courts including the High Court, whiledealing with bail applications with regard to various disputes werecivil in nature, can only be considered as prima facie observationand not any final conclusion in the matter. Moreover, since theorder is on the basis of subjective satisfaction, the High Court,while dealing with the writ petition under Article 226 of theConstitution of India, is not expected to sit in appeal over suchconclusion of the detaining authority. Such contention istherefore without any merit.11. In this context it is also stated that the detenu hadsuffered fracture in a road accident and therefore was not in aposition to run as has been alleged in the ground case and thus the https://hcservices.ecourts.gov.in/hcservices/ entire ground case should be taken to be fabricated is also notrequired to be examined in the present Habeas Corpus Petitionkeeping in view the limited scope of interference by the High Courtin such matters pertaining to the merits of the allegations. Thedetaining authority at the time of passing the detention order isnot expected to record evidence and to find out whether there isany truth in the allegation by making any in-depth analysis.12. Next contention of the petitioner is to the effectthat since the detenu was admittedly in custody, there was nonecessity of passing an order of detention. In this context, it issubmitted that conclusion of the detaining authority that thedetenu is likely to be released on bail is mere ipse dixit of thedetaining authority.13. Law is now well settled that even where the detenu isin custody in connection with some pending case, the order ofdetention can be passed, provided the detaining authority comes tothe conclusion regarding the imminent possibility of the detenubeing released on bail. (See(2006) 3 SCC (Cri) 17 (IBRAHIM NAZEERv. STATE OF TAMIL NADU AND ANOTHER), (2006) 3 SCC (Cri) 50(SENTHAMIL SELVI v. STATE OF TAMIL NADU AND ANOTHER) and (2006) 3SCC (Cri) 324 (A. GEETHA v. STATE OF TAMIL NADU AND ANOTHER)14. In the present case, it is no doubt true that thedetenu was allegedly involved in several cases, but since all thecases were "white- collar offences", it is very reasonable toconclude that in such matters normally bail is granted by the courteven before completion of investigation. The very fact that anorder of anticipatory bail was granted in one case and an order ofbail has been granted by a Judicial Magistrate in another case onlybuttresses such conclusion of the detaining authority that therewas imminent possibility of the detenu being released on bail. Insuch circumstances, we are unable to interfere with the conclusionof the detaining authority on the above aspect.15. Last contention, which in fact requires most seriousattention, is regarding the nature of the offences committed andnecessity of passing the order of preventive detention with a viewto prevent the detenu from acting in a manner prejudicial to themaintenance of public order.16. From various adverse cases noticed and even theground case relied upon by the detaining authority, it is apparentthat gravamen of the charge against the detenu is that he hascommitted offence under Section 420 IPC by taking consumer durablesand household articles from various dealers on issuing cheques andmany of such cheques issued by the detenu got bounced. It is nodoubt true that these offences are coming within Chapter XVII of https://hcservices.ecourts.gov.in/hcservices/ the Indian Penal Code and in that sense it can be easily concludedthat detenu was a 'Goonda' within the meaning of Section 2(f) ofthe Tamil Nadu Act 14 of 1982. However, under Act 14 of 1982,merely because some person is a Goonda is not a ground to detainsuch person. Under Section 3, the authority can pass thepreventive order of detention to prevent the person "acting in amanner prejudicial to the maintenance of public order" and nototherwise. 17. As per Section 2(a)(iii), "acting in any mannerprejudicial to the maintenance of public order" means - in the caseof a goonda, when he is engaged, or is making preparations forengaging, in any of his activities as a goonda which affectadversely, or are likely to affect adversely, the maintenance ofpublic order.As per the explanation, public order shall be deemed to havebeen affected adversely or shall be deemed likely to be affectedadversely, if any of the activities, directly or indirectly, iscausing or calculated to cause any harm, danger or alarm or afeeling of insecurity, among the general public or any sectionthereof or a grave or widespread danger to life or public health orecological system. 18. Keeping in view the above aspect, as rightlysubmitted by the counsel for the petitioner that the acts of thedetenu were likely to affect many individuals, but we do not thinksuch acts of cheating can be construed to be affecting or causingdanger or alarm or a feeling of insecurity among the generalpublic.19. Learned Addl. Public Prosecutor appearing for theState has submitted that in the ground case, as against the detenu,there is not only the allegation of commission of offence underSection 420 IPC. but also under Sections 506(ii) and 341 IPC.,which were likely to affect public order rather than law and order.20. The background of the alleged occurrence has alreadybeen noticed. Complainant and his colleague, who had come to theshop, were allegedly threatened. Even though it has been stated inthe grounds of detention that nearby shop owners have witnessed theincident, to overcome the sense of insecurity or danger, it is hardto accept the conclusion keeping in view the setting andcircumstances under which the alleged offences are said to havebeen committed.21. The law relating to preventive detention, beingdraconian in nature, the detaining authority is not expected topass such orders unless there is compelling necessity. It is ofcourse true that such orders are to be passed on the subjective https://hcservices.ecourts.gov.in/hcservices/ satisfaction, however, when such subjective satisfaction on theface of it is arbitrary and wholly illogical, the Courts have thejurisdiction nay, the duty, to protect the citizen. Thedistinction between the activities which are prejudicial to themaintenance of public order and the activities which may affect lawand order is well recognized by the Supreme Court in 2004 SCC (Cri)1944 (COMMISSIONER OF POLICE AND OTHERS v. SMT.C. ANITA), whereinit was observed :-"7. ... The crucial issue is whether the activitiesof the detenu were prejudicial to public order. Whilethe expression "law and order" is wider in scope inasmuchas contravention of law always affects order, "publicorder" has a narrower ambit, and public order could beaffected by only such contravention which affects thecommunity or the public at large. Public order is theeven tempo of life of the community taking the country asa whole or even a specified locality. The distinctionbetween the areas of "law and order" and "public order"is one of the degree and extent of the reach of the actin question on society. It is the potentiality of theact to disturb the even tempo of life of the communitywhich makes it prejudicial to the maintenance of publicorder. If a contravention in its effect is confined onlyto a few individuals directly involved as distinct from awide spectrum of the public, it could raise problem oflaw and order only. It is the length, magnitude andintensity of the terror wave unleashed by a particulareruption of disorder that helps to distinguish it as anact affecting "public order" from that concerning "lawand order". ..."22. Applying the above test to the facts of the presentcase, we are of the considered opinion that the various actsallegedly committed by the detenu can only be considered as actsaffecting the law and order and not affecting the public order and,therefore, the detention order cannot be sustained.23. It is of course true that the detenu is a Goondawithin the meaning given to such term in Act 14 of 1982 in thesense that he has repeatedly committed the offence under ChapterXVII. However, it cannot be concluded by any stretch ofimagination that such activities even though against severalindividuals in isolated instances had the effect of prejudicing themaintenance of public order. https://hcservices.ecourts.gov.in/hcservices/

24. For the aforesaid reason, the detention order isliable to be quashed and the detenu shall be released forthwithunless his presence is required in any other case.We Place on record our appreciation for the valuable assistancerendered by Mr.Abudukumar Rajaratnam as Amicus curiae.dpkSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government, Home Prohibition & Excise Department, Fort St. George, Secretariat, Chennai 600 009.The Commissioner of Police, Greater Chennai,Egmore, Chennai3. The Public Prosecutor, High Court, Madras.4. The Superintendent, Central Prison, Chennai5. The Joint Secretary to the Governmentof Tamil NaduPublic (Law and ORder) Department , Fort Saint George,Chennai+ one cc to Mr. S. Sathish Rajan, Advocate sr no. 51123jrg(co)nm(27.08.07)ORDER IN HCP.NO.366/2007