(Order of the Court was made by R.BANUMATHI, J) The petitioner, mother of the detenu - M.Udayar alias Durai challenges the Detention Order dated 13.10.2008 passed by the detaining authority, Commissioner of Police, Tirunelveli whereby the detenu was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "Goonda".
2. The detenu had earlier come to adverse notice in a case in Palayamkottai Police station Crime No.862/2006 under Section 302 r/w 120(b), 34 IPC and 3(2)(v) SC/ST (Prevention of Atrocities Act, 1989 and in Murappanadu Police Station Crime No.198/2007 under
Sections 294(b),506(ii) IPC and Section 4 of Tamil Nadu Prevention of Harassment against Women Act.
3. The facts leading to passing of the impugned Detention Order are that the defacto complainant Alwyn repaired the lights of the vehicle of the detenu and the detenu assured to pay repair charges of Rs.380/- after 2 days and went away. On 3.10.2008 at 4.45 p.m., the defacto complainant Alwyn along with one Manikandan was coming near Petrol Bunk, Uchigopuram, Palayamkottai, Alwyn asked money from the detenu and the detenu is alleged to have abused Alwyn and Manikandan in filthy language and also threatened Alwyn by brandishing Aruval and snatched Rs.570 from his shirt pocket.
4. On the complaint lodged by Alwyn, the ground case was registered in Crime No. 1610/2008 under
Sections 314,294(B),427,387 and
506(ii) IPC and the detenu was arrested on 4.10.200 and remanded to judicial custody.
5. In para 3 of the Detention Order, the detaining authority has stated that owing to the conduct of the detenu, those who were coming to petrol bunk, those who were walking on the road and those who were waiting for the bus took to their heels out of fear and those who were coming in two wheelers sped away in their vehicles. Bus drivers stopped the buses and nearby shop-keepers closed their shops. The entire place wore a deserted look for a while. On being satisfied that the detenu is habitually indulging in different crimes and acting in a manner prejudicial to the maintenance of public order, the impugned Detention Order was clamped.
6. The Detention Order is challenged on the ground that the ground case in Crime No.1610/2008 is a solitary incident and it is not of such a magnitude and intensity so as to disturb the public order and clamp the detention Order. It was further contended that based on such single incident, the detaining authority was not justified in observing that the detenu is habitually committing crimes and also acting in a manner prejudicial to the maintenance of public order and therefore, the Detention Order is liable to be quashed.
7. Taking us through the averments in the counter affidavit and materials on record, the learned Additional Public Prosecutor submitted that the detenu was involved in two adverse cases including one murder case and in the ground case, the detenu threatened Alwyn in a public place and based on the materials, the detaining authority satisfied itself that the detenu has committed crimes and is also acting in a manner prejudicial to the maintenance of public order and as such, he is a Goonda as contemplated under
Section 2(f) of the Tamil Nadu Act 14/1982 and such subjective satisfaction cannot be interfered with.
8. Observing that the detenu is habitually committing crimes, in para 5 of the Detention Order, the detaining authority observed as follows: "5. Hence I am satisfied that Thiru. M.Udayar alias Durai is habitually committing crimes and is also acting in manner prejudicial to the maintenance of public order and as such he is a Goonda as contemplate under
Section 2(f) of the Tamil Nadu Act 14 of 1982. By committing the above described grave crime in a public and a busy locality in a business area, he has created an alarm and a feeling of insecurity in the minds of public in that area and thereby acted in a manner prejudicial to the maintenance of public order."
9. Further in para 6 of the Detention Order, the detaining authority has observed that if the detenu comes out on bail he will indulge in such further activities which will be prejudicial to the maintenance of public order.
10. In the first adverse case in Palayamkottai Police station Crime No.862/2006 under
Section 302 r/w 120(b), 34 IPC and 3(2)(v) SC/ST (Prevention of Atrocities Act, 1989, the detenu and his associates are alleged to have committed murder of Manivannan at 13.15 hours on 18.8.2006 when Manivannan was coming near auto stand along with his friend. The first adverse case under
Section 302 IPC is an offence against an individual and on the human body. The second adverse case in Murappanadu Police Station Crime No.198/2007 was for the offences under
<act id=ObGxPokB_szha0nWLtNN section=294_b>Sections 294(b),</act>
506(ii) IPC and Section 4 of Tamil Nadu Prevention of Harassment against Women Act on 12.10.2007. Due to previous enmity, the detenu is alleged to have threatened Petchiammal's husband Subramanian and when Petchiammal prevented the detenu, the detenu is alleged to have abused Petchiammal in filthy langauage and pulled her sari and thereby alleged to have outraged the modesty of Petchiammal and the detenu was charged for the offence under
<act id=ObGxPokB_szha0nWLtNN section=294_b>Sections 294(b) </act>and
506(ii) IPC. Here again, the second adverse case is relating to abusing Petchiammal in filthy language and outraging her modesty and nothing relating to public order.
11. No doubt in Para 3 of the Detention Order, the detaining authority has stated that by committing the offence in the public place near Petrol Bunk, the detenu has committed grave offence in public and the detenu has created a sense of alarm in the public and those who were walking on the road and those who were waiting for the bus took to their heels out of fear and those who were coming in two wheelers sped away in their vehicles. Bus drivers stopped the buses and that nearby shop-keepers closed their shops and thereby, the detenu had acted in a manner prejudicial to the maintenance of public order.
12. The question is whether such a single incident is a criminal intimidation and the commission of robbery would affect the public order and can the detenu be said to have acted in a manner prejudicial to the maintenance of public order. Observing that solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention, the Supreme Court in Darpan Kumar Sharma v. State of Tamil Nadu and others [2003 Supreme Court Cases (Cri) 537] in para No.5 has held as follows: "5. The basis upon which the petitioner has been detained in the instant case is that he robbed one Kumar at the point of knife a sum of Rs.1,000/-. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may also affect law and order but the same need not affect maintenance of public order. Under the definitions in the Act, it is stated that in the case of "goonda" the acts prejudicial to public order are "when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order" [Section 2(a)(iii)]. The question whether a man has only committed a breach of law and order or has acted in a manner likely to casue disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention."
In T.Devaki V. government of Tamil Nadu and others [1990 Supreme Court Cases (Cri) 348] in para No.19, the Supreme Court has held as follows: "19. No doubt in paragraph 4 of the grounds, the detaining authority has stated that by committing this grave offence in public, in broad day light, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected even tempo of life of the community. Repetition of these words in the grounds are not sufficient to inject the requisite degree of quality and potentiality in the incident in question. A solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so much as to bring the case within the purview of the Act. Such a solitary incident can only raise a law and order problem and no more. Moreover, there is no material on record to show that the reach and potentiality of the aforesaid incident was so great as to disturb the normal life of the community in the locality or it disturbed general peace and tranquillity. In the absence of such material it is not possible to hold that the incident at the seminar was prejudicial to the maintenance of public order. In Manu Bushan roy Prodhan V. State of west Bengal [(1973) 3 SCC 663: 1973 SCC (Cri) 469], this Court held that a solitary assault on one individual, which may will be equated with an ordinary murder which is not an uncommon occurrence, can hardly be said to disturb public peace and its impact on the society as a whole cannot be considered to be so extensive, widespread and forceful as to disturb the normal life of the community, thereby shaking the balanced tempo of the orderly life of the general public. The Court held that the detention order which had been made for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order, was not sustainable in law. On a careful consideration of the matter in all its aspects and having regard to the circumstances in which the alleged incident took place on July, 29, 1989, we are of the opinion that the solitary incident as allege din the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public Order."
13. The ratio of the above decisions squarely apply to the case on hand. In the present case, there is only one solitary incident whereby the detenu is alleged to have committed robbery in public place and is alleged to have threatened Alwyn and there is no material on record to show that the potentiality of the single incident was to disturb normal life of the community in the locality or disturb general peace and tranquillity or create a sense of alarm and in security in area.
14. Though in the grounds of Detention, the detaining authority has stated that by committing the offence in public, the detenu had created a sense of alarm, the words in the Order of Detention are not substantiated by the materials. In 2003 Supreme Court Cases (Cri) 537 cited above (in paragraph 6), the Supreme Court has held as follows:
"6. ... there is no material on record to show that the reach and potentiality of the single incident of robbery was so great as to disturb the even tempo or normal life of the community in the locality or disturb general peace and tranquillity or create a sense of alarm and insecurity in the locality. Though in the grounds of detention, the detaining authority had stated that by committing this offence in public the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, but citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter."
15. Applying the ratio of Darpan Kumar Sharma's case cited above, we are of the considered view that the case of solitary incident as mentioned in the grounds of detention does not form basis for sustaining the Order of Detention and the impugned Order of Detention is liable to be quashed. Accordingly, the impugned order of detention is quashed and Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case.
asvm To
1.The Commissioner of Police, Tirunelveli City.
2.The Secretary to the Government, Home, Prohibition and Excise (XIV) Department, Chennai - 9.
3.The Inspector of Police, Palayamkottai Police Station, Tirunelveli District.
4.The Additional Public Prosecutor, The Madurai Bench of Madras High Court, Madurai.