Ganesan alias Venkata Ganesan alias Misa Ganesan, Detenue, Central Prison, Madras vs State of Tamil Nadu

Natarajan, J.—This is an unusual case where a detention order has been passed under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) hereinafter referred to as the Act, for the third time, in almost quick succession after the expiry of the detention period of the earlier order was over. The Petitioner has filed this petition to secure his release by means of a writ of habeas corpus issued to the Respondents.

The detention order in question has been passed by the second Respondent on 10th December, 1984. It was served on the Petitioner who was already on remand. In the grounds of detention it is stated that the Petitioner was a habitual offender committing offences punishable under Chapter XVI and XVII of the Indian Penal Code and had, therefore, been categorised as a goonda by the authorities, and to prevent him from indulging in further acts in any manner prejudicial to the maintenance of public order, he was detained under Act 14 of 1982, on 9th February, 1982 by means of a detention order. After the detention period of one year was over, the Petitioner was released. Again, the Petitioner was found to indulge in acts prejudicial to the maintenance of public order and hence a second order of detention was passed against him on 1st November, 1983. After the period of detention was over the Petitioner was released. After the release, the Petitioner was found selling illicitly distilled arrack at about 3 p.m. on 29th November, 1984. When a police party engaged in conducting prohibition raids noticed the Petitioner and tried to apprehend him, the Petitioner is said to have pulled out a knife and brandished it and uttered threats to the members of the police party to refrain from arresting him if they cared for their lives. Notwithstanding the threats uttered by him, he is said to have been over-powered. In the scuffle that followed, two policemen are said to have sustained simple injuries. A case was registered against the Petitioner under Ss. 307, 332, 353 and 506 (ii) I.P.C. and Section 4 (1) (i) of the Tamil Nadu Prohibition Act. In spite of the registration of the case, the second Respondent deemed it proper that the Petitioner should be detained for a period of one year under the Act and that recourse to the normal method of trial and conviction will not meet the exigencies of the situation. Consequently, the second Respondent has passed the orders of detention. The said order was approved by the first Respondent and subsequently it has been confirmed after taking into account the representations made by the detenu and the report given by the Advisory Board. Now, as stated already, the Petitioner has filed this petition to secure his release.

Learned Counsel for the Petitioner contends that the two prior orders of detention cannot constitute adverse material against the Petitioner for his being classified as a goonda and furthermore, the specific instance on the basis of which the order has been passed is not of such a nature as to disturb the maintenance of public order. Countering this argument, the learned Public Prosecutor would say that the Petitioner is a confirmed goonda and this fact is borne out by the two previous orders of detention and, therefore, the second Respondent was entitled to treat the Petitioner as a goonda and pass the order for his detention with reference to the last unruly act indulged in by the Petitioner as it had posed a hazard to the maintenance of public order. The further argument is that the conduct of the Petitioner on 29th(sic) November, 1984, would have certainly resulted in the members of the police force as well as the members of the public being over-awed by conduct of the Petitioner and feeling apprehensive of the maintenance of public safety and tranquility.

On a consideration Of the matter, we find ourselves unable to accept the case put forward by the State in justification of the order of detention. Ever without going into the merits of the first contention we find that the specific act leading the second Respondent to pass the impugned order is not of such a nature which can be classified as an act intended to disturb the maintenance of public order. Even accepting the case of the Respondents in full it would only be a case of the Petitioner selling illicitly distilled arrack and his being taken into custody by use of some force. Merely because the Petitioner tried to resist his apprehension and uttered some words of threat or adopted a menacing attitude it cannot be said that he had intended to disturb the even tempo of public life. At best his action could only amount to preventing the public servants from discharging their duty and attempting to cause hurt to them. Such acts cannot be equated with acts of a perverse nature which would have an adverse impact on the maintenance of public order.

Tamil Nadu Act 14 of 1982 is an Act relating to preventive detention and such an Act has to be construed strictly, for, the detenue is detained without a trial. Indeed, the past conduct and the antecedent history of the detenu will have to be taken into account. In this case, the detaining authorities have taken into account the two earlier detentions and indeed an instance which has taken place on 29th November, 1984, as the ground for detention. The last instance which does not amount to any disturbance of public order cannot be a ground for preventive detention under the Act which has to be viewed only to prevent persons indulging in a long chain of activities prejudicial to the maintenance of public order. As a consequence the petition deserves to succeed. Accordingly, we allow the petition and make the rule absolute. The Petitioner will be set at liberty forthwith unless his detention can be justified with reference to any other case.

We place on record our appreciation of the services rendered by Thiru P. Venkatasubramanian, counsel appointed by the Tamil Nadu Legal Aid Committee, who argued the case on behalf of the Petitioner.