(Order of the Court was made by P.MURGESEN, J.) The petitioner is the detenu. He was detained under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest- offenders, Goondas, Immoral Traffic Offenders and Slum-grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) by the respondents herein, branding him as 'GOONDA', by the order of detention in No.1/BDFGISSV/2009 dated 02.01.2009.
2. The order of detention is challenged by the counsel for the petitioner / detenu, on three grounds, namely, the sketch filed by the respondents was not taken into consideration while passing the detention order; secondly, the detaining authority failed to satisfy itself as to the real possibility of the detenu coming out on bail; thirdly, solitary instance will not be a ground to detain the petitioner branding him as 'GOONDA' under the Act.
3. A counter-affidavit has been filed on behalf of the second respondent, wherein it is stated that there are two adverse cases and one ground case against the detenu. The first adverse case was in Crime No.1113 of 2008 on the file of B3-Teppakulam Police Station, registered under
Sections 147,148,341,324,506(ii) IPC and 427 IPC and the second adverse case was in Crime No.1346 of 2008 on the file of B3-Teppakulam Police Station registered under
Sections 387 and
506(ii) IPC. The ground case is registered in Crime No.1332 of 2008 on the file of B1-Vilakuthoon Police Station under Sections 392 r/w 397 and
506(ii) IPC.
4. With regard to the first ground, it is alleged by the learned counsel for the petitioner that in the complaint given to the Police, it is stated that the occurrence took place near the DCM Corner, but the same is not mentioned in the sketch and that therefore, the detention order passed by the second respondent is liable to be set aside.
5. The sketch is available in Page No.111 of the booklet. In the sketch, the scene of occurrence is shown near the telephone office. Of course, the word "DCM Corner" is not mentioned in the sketch. It is not possible to mention the place of occurrence in the sketch correctly with all description in one place. This can be considered only at the time of trial of the case. In the sketch, the scene of occurrence is shown near Keezha Avani Moola Veethi. Failure to point out the name of "DCM Corner" will not be a ground to reject the case of the respondents. So, this ground cannot be considered at this stage.
6. The second ground put forth by the learned counsel for the petitioner is that the detaining authority failed to satisfy itself as to the real possibility of the detenu coming out on bail. It is stated in the grounds pertaining to the detention order, that the detenu had already come out on bail in the adverse case in B3-Teppakulam Police Station in Crime No.1113 of 2008 and further, in the bail application filed on his behalf in B3-Teppakulam Police Station in Crime No.1346 of 2008 before J.M.No.1, Madurai vide C.M.P. No.5007 of 2008 dated 24.12.2008, bail was granted and another bail application filed on his behalf in B1-Vilakkuthoon Police Station in Crime No.1332 of 2008, i.e., the present ground case, before J.M.No.1, Madurai vide C.M.P. No.5084 of 2008 dated 23.12.2008, was dismissed. There must be some material to hold that there is real possibility of the detenu coming out on bail. With regard to this point, it would be appropriate to refer to the statement of one Nagaraj, present in Page No.155 of the booklet. The said Nagaraj was an auto-driver. He said that he saw the father of the accused standing in front of Central Jail and that the father of the accused told him that he came to see his son, i.e., the detenu, who was remanded in the robbery cases pending on the file of Vilakkuthoon Police Station and Teppakulam Police Station. He further told the said Nagaraj that he had arranged for bail for his son and that his son will come out from jail after some days. This is enough to hold that there is real possibility of the detenu coming out on bail. Therefore, it is clear that there is real possibility of the detenu coming out on bail.
7. No doubt the petitioner / detenu was involved in two adverse cases. The first adverse case was in Crime No.1113 of 2008 on the file of B3-Teppakulam Police Station, registered under
Sections 147,148,341,324,506(ii) IPC and 427 IPC and the second adverse case was in Crime No.1346 of 2008 on the file of B3-Teppakulam Police Station registered under
Sections 387 and
506(ii) IPC. In support of his contention, the learned counsel for the petitioner has submitted that in both these adverse cases, the public order was not disturbed.
8. Per contra, the learned Additional Public Prosecutor has submitted that in the ground case, i.e. in Crime No.1332 of 2008 on the file of B1-Vilakuthoon Police Station registered under Sections 392 r/w 397 and 506(ii) IPC, the conduct of the petitioner resulted in the disturbance of public order and it was very well explained in the impugned order.
9. We have perused the First Information Report carefully and it is stated in the F.I.R. that the people ran over on all the four directions and because of the same, there was disturbance of public order.
10. Learned counsel for the petitioner relied on the decision of this Court in H.C.P.(MD) Nos.182 to 184 of 2009 dated 20.07.2009 in support of his contention and stated that similar to the above decision, in the present case also there is no disturbance of public order. Paragraphs 9 and 10 of the above decision reads as follows:-
"9. At this juncture, in the decision reported in 2005 M.L.J. (Crl.) 612 (Kausalya Vs. The District Collector and District Magistrate, Kancheepuram and another), it was clearly stated what are the activities would amount only to breach of law and order or likely to cause disturbance of public order would be decided on the following principles:
1) The maintenance of law and order relates to the crimes committed by private individuals. The maintenance of public order relates to the disturbance to the even tempo of life and public tranquility and its effect upon the life of the community in a locality;
2) Every assault in a public place resulting in the death of a victim may cause panic to those who are spectators but that does not mean that the said incident would cause disturbance or dislocation of the community life of the locality, in the absence of material that the act is committed in a public place to cause terror to the people in the locality so that they would be prevented from following their usual avocations;
3) The impact on "public order" and "law and order" depends upon the nature of the act, the place where it is committed and the motive force behind it. If the act is confined to an individual without affecting the tempo of the life of the community, it is a matter of law and order only and it may not fall within the orbit of public order;
4) In order to bring the activity so as to show that it would affect the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public;
5) The mere words in the ground of detention would not be sufficient to inject the requisite degree of quality and potentiality to show that the incident was so grave as to disturb the normal life of the community in the locality in the absence of such materials.
10. The learned counsel for the petitioner would also rely upon the decision reported in 2008 STPL(LE)40249 SC (Bhupendra Vs. State of Maharashtra and another) and argued that the Apex Court has laid down the guidelines how the activities of detenu to be breach of law to the public order to be decided. In that, the Apex Court has held as follows:
"7. The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order. `Public order' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of `law and order' and 'public order' is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting 'public order' from that concerning `law and order'. The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?" This question has to be faced in every case on its facts.
8. "Public order" is what the French call 'order publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is:Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? (See Kanu Biswas v. State of West Bengal (AIR 1972 SC 1656).
9. "Public order" is synonymous with public safety and tranquility: "it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State". Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum, which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State of Bihar and Ors. (1966 (1) SCR 709).
10. 'Public Order', 'law and order' and the 'security of the State' fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. [See Kishori Mohan Bera v. The State of West Bengal (1972 (3) SCC 845); Pushkar Mukherjee v. State of West Bengal (1969 (2) SCR 635); Arun Ghosh v. State of West Bengal (1970 (3) SCR
288); Nagendra Nath Mondal v. State of West Bengal (1972 (1) SCC 498).
11. The distinction between 'law and order' and 'public order' has been pointed out succinctly in Arun Ghosh's case (supra). According to that decision the true distinction between the areas of 'law and order' and `public order' is "one of degree and extent of the reach of the act in question upon society". The Court pointed out that "the act by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different". (See Babul Mitra alias Anil Mitra v. State of West Bengal and Ors. (1973 (1) SCC 393, Milan Banik v. State of West Bengal (1974 (4) SCC 504).
12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.
13. The two concepts have well defined contours, it being well established that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. "Law and order" comprehends disorders of less gravity than those affecting "public order" just as "public order" comprehends disorders of less gravity than those affecting "security of State". [See Kuso Sah v. The State of Bihar and Ors. (1974 (1) SCC 185, Harpreet Kaur v. State of Maharashtra (1992 (2) SCC 177, T.K. Gopal v. State of Karnataka (2000 (6) SCC 168, State of Maharashtra v. Mohd. Yakub (1980 (2) SCR 1158)] and Commissioner of Police v. C. Anita (2004(7) SCC 467)."
While considering the above said citation, there is a distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but it is one of degree and extent of the reach of the act question upon society. In one case, it may affect the specific individual only and therefore it reaches problem of law and order only. While in another, it may affect public order. But, here the ground case has not affected the public order. In the above said circumstances, while considering the decisions, the occurrence has not taken place in a public road, it is a street in between two rows of houses. In F.I.R. also it was not stated that the occurrence has taken place in a public road. Hence, it will not cause panic and insecurity in the minds of public. So, we are of the considered view that there is no cogent material before detaining authority to come to the conclusion that the act of the Detenus has created panic in the minds of people of particular locality or public in general."
In the above case, the Division Bench of our Court has considered the meaning of the words "public order" elaborately and clearly.
11. In the FIR in the ground case, the allegation of the accused is that the accused snatched Rs.500/- from the complainant by threatening him and that some people came there running and that the accused threatened those people that if they come nearer to him, then they will be stabbed. Because of the same, everybody ran helter skelter on all four directions, and the traffic had come to a standstill. It is also stated in the F.I.R. that the accused threatened them with a knife. This allegation is sufficient to come to the conclusion that there was a disturbance of public order as far as this case is concerned. Therefore, we are of the view that the detaining authority had satisfied itself as regards the allegation relating to the disturbance of the public order.
12. In support of his third ground as regards the solitary instance, the counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in the case of Darpan Kumar Sharma v. State of T.N. and Others reported in (2003) 2 Supreme Court Cases 313, and argued that solitary instance of robbery is not a ground to detain the petitioner under the Act.
13. We have perused the above judgment of the Hon'ble Supreme Court. The accused in that case was involved in three adverse cases and the cases were registered under Sections 379 I.P.C. and therefore, only a case of robbery was relied on. In that case, the Commissioner of Police stated that the accused was found committing robbery from one Kumar at the point of knife. In that case, the three alleged incidents to which the Commissioner of Police has referred to, are thefts arising under
Section 379 IPC and therefore, there was only a solitary instance wherein the detenu was alleged to have robbed in a public place and therefore, there was 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. Hence the detention order was quashed in that case. But as regards the present case, it is seen that the petitioner, was involved in offences punishable under
Sections 147,148,341,324,506(ii),427 and
387 IPC, in the adverse cases. In the ground case, the detenu was involved in offences punishable under Sections 392 r/w 397 and
506(ii) IPC. In the First Information Report the allegation of the accused is that the accused snatched Rs.500/- from the complainant by threatening him and that some people came there running and that the accused threatened those people that if they come nearer to him, then they will be stabbed. Because of the same, everybody ran helter skelter on all four directions, and the traffic had come to a standstill. It is also stated in the F.I.R. that the accused threatened them with a knife. Because of these acts, the detenu has been detained under many sections. In the above Supreme Court judgment, it is clear that only
Section 379 IPC was involved in that case, but in the present case the detenu has been detained under many Sections as already stated above. Hence, the ground of solitary instance falls to the ground. Therefore, the judgment of the Hon'ble Supreme Court relied on by the counsel for the petitioner is not helpful to the petitioner.
14. On a careful consideration of the materials on record and also the submissions of the learned counsel for the petitioner and also the learned Additional Public Prosecutor appearing for the respondents, we are of the considered view that this is not a fit case to quash the order of detention, passed by the second respondent. Accordingly, the Habeas Corpus Petition is dismissed.
KM To
1.The Secretary to Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Chennai-9.
2.The Commissioner of Police, Madurai City.