K. JAYACHANDRA REDDY - (1.) THE Judgment of the court was delivered by
(2.) THE petitioner, who is himself the detenu, was detained under the provisions of 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' for short). He challenged the detention order before the High court by filing a writ of habeas corpus and the same was dismissed. Questioning the same, he has filed Special Leave Petition (Cri.) No. 2685 of 1993 in this court. He has also filed Writ Petition (Cri.) No. 364 of 1993 under Article 32 of the Constitution in this court and both are being disposed of together by a common judgment. The petitioner is a resident of Madras city. On 16/02/1993 he was detained under Section 3 of the Tamil Nadu Act in order to prevent him from acting in any manner prejudicial to the maintenance of public order, by an order passed by the Commissioner of Police, Madras. The grounds of detention in support of the order were served on the petitioner in jail on 20/02/1993. In both these petitions, common grounds challenging the detention have been advanced. Before we proceed to consider the same, it is necessary to refer to the relevant portions of the grounds which also came under severe attack by the learned counsel for the petitioner. After referring to the subject it was mentioned thus : "Thiru Veeramani, male, aged 35, s/o Kalappan, No. 28/1, Ayodhiyakuppam, Madras-5 is a Goonda. He has come to adverse notice in the following cases : JUDGEMENT_337_2_1994Html1.htm After listing the above crimes, in paragraph 2 of the grounds, it is just mentioned that the detention order has been made against the petitioner under Section 3(1 of the Tamil Nadu Act on 16/02/1993. In paragraph 3, reference is made to the occurrence on 10/02/1993. It is stated that on 10/02/1993 a special police party headed by the Inspector of Police, Law and Order along with a police party consisting of a number of constables was constituted for the purpose of apprehending the petitioner and/his associates connected with Crime No. 288 of 1993 of K.K. Nagar Police Station under S. 148, 341, 302 and 506 ( ii) Indian Penal Code and also in connection with Crime No. 237 of 1993. On 11/02/1993 at about 3 p.m. the aforesaid special police party proceeded to Ayodhiyakuppam, Madras to apprehend the petitioner and others. While they were so proceeding, the petitioner and his associates shouted at them and when the police party surrounded the petitioner and his associates to apprehend them, the members of the police party were challenged and were attacked and the petitioner aimed a cut on the head of the Inspector with a patta knife but which fell on his left forearm causing a bleeding injury and similarly some of the associates of the petitioner inflicted injuries on the constables and stones were pelted against them which caused injuries. However, they were apprehended but the petitioner threatened the general public and thereby instilled a sense of fear and panic in their minds. Some more details of the crime were mentioned and finally it was concluded that from this material, the authority was satisfied that the petitioner and his associates acted in a manner prejudicial to the maintenance of public order. Towards the end of paragraph 3, it was mentioned as under : "In arriving at my subjective satisfaction I have not taken into account the bootlegging activities of Tr. Veeramani or his connection and sentence in the murder case, as revealed in his confessional statement recorded by the Inspector of Police during the course of investigation of Cr. No. 61 of 1993 on the file of the D-5 Marina Police Station." Paragraph 4 of the grounds reads thus : "I am aware that Thiru Veeramani is now in remand, he is likely to file a bail application and come out on bail. I am also aware that bail is usually granted by the courts in such cases and hence there is imminent possibility that he will come out on bail. If he comes out on bail, he is likely to indulge in such further illegal activities in future which will be prejudicial to the maintenance of public order...." Relevant portion of paragraph 5 reads thus : 342 "Thini Veeramani is informed that he has a right to make representation in writing against the order by which he is kept in detention. If he wishes to make such a representation he should address it to the secretary to government, Prohibition and Excise Department, Madras 9 and forward it through the Superintendent of Prison in which he is confined as expeditiously as possible." At the outset, the learned counsel in general way submitted that the first six crimes referred to are of 1991 and they are remote and it appears as though the detaining authority has taken them also into consideration and they are not of that magnitude as to disrupt public order and the other two incidents of 10/02/1993 mentioned in the grounds can be only prejudicial to the maintenance of law and order and therefore the detaining authority has not properly applied its mind and also the minor incidents which are mentioned in the grounds would show that they also formed part of the material considered by the detaining authority in arriving at the necessary satisfaction. We have carefully gone through the grounds. It may be mentioned here that the Act provides for preventive detention of bootleggers, goondas, immoral traffic offenders etc. for preventing their dangerous activities prejudicial to the maintenance of public order. Therefore first the authority must be satisfied that the person sought to be detained comes within the meaning of one of these categories namely bootlegger, goonda and immoral traffic offender. Section 2(f) of the Tamil Nadu Act defines 'goonda' thus: " 'goonda' means a person, who either by himself or as a member of or leader of a gang habitually commits, or attempts to commit or abets the commission of offences, punishable under Ch. XVI or Ch. XVII or Ch. XXII of the Indian Penal Code (Central Act XLV of 1860;" Relevant portion of Section 3 under which the order of detention is made, reads thus: "3. Power to make orders detaining certain persons. (1 The State government may, if satisfied with respect to any bootlegger or drug-offender or forest-offender or goonda or immoral traffic offender or slum-grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. * * *" It can therefore be seen that at first the authority must be satisfied that the person comes within the meaning of 'goonda'. The relevant part of the grounds which is noted above would show that the petitioner Veeramani has come to adverse notice in the six cases mentioned. Then thereafter as required under Section 3(1 of the Act, the detaining authority must satisfy himself that it is necessary to detain such a person. The detaining authority in paragraph 3 has mentioned that the two incidents and the attack on police party by the petitioner and his associates on 11/02/1993 certainly 343 affected the maintenance of public order. Therefore it cannot be said that the activities mentioned in the grounds are not prejudicial to the maintenance of public order.
(3.) THE next point urged is that on the date of order of detention the petitioner was already in custody under the orders of the Magistrate who remanded him on 11/02/1993 in connection with Crime Nos. 288 of 1993 and 237 of 1993 being accused of offences punishable under S. 147, 148, 302, 307 Indian Penal Code etc. and there was no question of his being released on bail and that as a matter of fact the petitioner did not apply for bail. THErefore, the detention was unwarranted and it shows that there is no genuine satisfaction regarding the detention as required under the Act and therefore the order is illegal. As extracted above the detaining authority noted in paragraph 4 that he was aware that the petitioner is on remand and that he was likely to file a bail application and that bail is usually granted by the courts in such cases and that if he comes out on bail, he is likely to indulge in such further illegal activities prejudicial to the maintenance of public order. THE learned counsel, however, contended that the petitioner who was involved in a murder case punishable under Section 302 Indian Penal Code would not be released so casually as is being stated by the detaining authority and that only shows that it has not applied its mind. On the question whether the detaining authority has properly applied its mind in such cases where the persons sought to be detained are already in custody, there are a number of cases decided by this court. The learned counsel, however, placed considerable reliance on a judgment of this court in Rameshwar Shaw v. District Magistrate, Burdwan In this case the Constitution bench considered the question : "Can a person in jail custody be served with an order of detention whilst he is in such custody?" In this context the bench observed as under : "The first stage in the. process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it 344 must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under Section 3(l)(a), and this basis is clearly absent in the case of the petitioner." But in the same judgment it was also observed in paragraph 12 that as an abstract proposition of law, there may not be any doubt that Section 3(l)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ. In an earlier paragraph it was further observed thus: "Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case." But in later case this question has been considered further and this court has clearly laid down that no decision of this court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances and that the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. (Vide Sanjay Kumar Aggarwal v. Union of India , N. Meera Rani v. government of T.N. , Dharmendra Suganchand Chelawat v. Union of India , Kamarunnissa v. Union of India and Abdul Sathar Ibrahim Manik v. Union of india ).;