Somu vs The State of Tamil Nadu

M. Karpagavinayagam, J.—Somu, the petitioner herein has filed this petition challenging the detention order, directing the detenu Murugan (a) Arapallu Murugan, his friend, to be detained as Goonda under the Tamil Nadu Act 14 of 1982 in C.M.P No.40 of 1999 dated 17.07.99.

The few facts are necessary to understand the controversy that arises in this petition. On 07.07.99 at about 11 a.m. one Rajendran gave a complaint to the Sub Inspector of Police. Annadanapatty against the detenu alleging that on 07.07.99 at about 10.30 a.m., the detenu Murugan way laid him and attacked him with veecharuval in the process of extracting money from him, resulted in the injuries on the hand of the complainant Rajendran and that due to the said incident, the people in that area got frightened and ran away scattering on all sides.

He would also state that the shopkeepers closed the shop hurriedly and the vehicular traffic came to a standstill and that the complainant had to run away from the place in order to escape, while the said detenu chased him. The said complaint was registered by the police in Crime No.642 of 1999 under sections 341, 307 and 506(2) I.P.C. The Complainant was sent to the hospital for treatment. The Inspector of Police. Annadanapatti took up investigation and went to the spot and arrested the detenu Murugan on the same day and recovered veecharuval. He has also examined, the witnesses The detenu was produced before the learned Judicial Magistrate No.4. Salem, who in turn remanded him to judicial custody at Central Prison. Salem.

During the course of investigation, the police came to know that he was involved in the earlier incidents concerning with the rioting, attempt to murder and three other cases are pending against Him for the offences punishable under sections 395, 397, 324 I.P.C In all those cases, the charge sheets were filed and cases are pending. On the basis of these materials, the Detaining Authority, namely, the second respondent-Commissioner of Police. Salem, having found that the detenu is a Goonda. passed an order of detention on 17.07.99. This order is under challenge before this Court in this petition.

Mr. Sankarasubbu, learned counsel appearing for the petitioner, though raised several grounds in the petition, ultimately, confines to only one solid ground, which is as follows:-

The detenu was detained by the Commissioner of Police. Salem city, the Detaining Authority, the second respondent pursuant to the Government Order issued by the Secretary. Department of Prohibition and Excise in GO. Ms.No.89 of 1999 dated 18.04.99 and the said G.O. expires on 17.07.99 and therefore, no detention order could be passed by the respondents on 17.07.99 as he has no jurisdiction considering the facts likely to prevail in future as the conferment of jurisdiction expires on the said date.

In elaboration of this plea, Mr. Sankara Subbu would cite the authority in Abhay Shridhar Ambulkar Vs. S.V. Bhave, Commissioner of Police and Others, to show that the Government Order passed by the State of Maharashtra with similar wordings was quashed.

He would further state that the present Government Order conferring powers to the second respondent only for a period of three months which expires on 17.07.99 would not confer powers to him to take into consideration the future circumstances to pass an order of detention. According to the learned counsel appearing for the petitioner, the detention order would show that the Detaining Authority has taken into consideration both prevailing circumstances and the circumstances likely to prevail in the future. The detention order is liable to be quashed, since the Detaining Authority has no power to detain the detenu, as the powers conferred on him expires on 17.07.99 and as such he has no jurisdiction to take into consideration the circumstances likely to prevail in the future i.e. after 17.07.99.

On the other hand, Mr. Shanmugasundaram, learned Public Prosecutor would cite the authority, which is reported in State of Tamil Nadu & Another v. Vela @ Velangani (a) Johney Abdul Samad & Another (1993(1)S.CC 1199) and submit that me similar Government Orders had been upheld by the Supreme Court saying that the Detaining Authority has got powers to take into consideration both prevailing circumstances and also future circumstances and as such, the Government Order in the instant case as well as the detention order is perfectly valid and so, the petition is liable to be dismissed. He would further state that in the detention order in question, the detaining Authority took into consideration the prevailing circumstances only.

We have carefully considered the rival contentions.

At the outset, we wish to mention that we are not impressed with the submissions made by the learned counsel appearing for the petitioner for the following reasons:-

G.O.Ms.No.89 which was passed on 18.04.99 confers powers on the second respondent, the Commissioner of Police, Salem city to pass detention order taking into consideration the circumstances now prevailing or likely to prevail in the immediate future in the local Salem City. It is true that this order expires on 17.07.99. But, it is specifically stated in the counter filed by the second respondent, namely the Department of Prohibition and Excise that after expiry of G.O. Ms.No.89, immediately on 18.07.99. itself, another Government Order has been passed in G.O. Ms. No. 140, Prohibition and Excise (XIV) department, conferring powers for making detention order, taking into consideration the prevailing circumstances as well as circumstances likely to prevail in the future. Therefore, in the light of G.O. Ms.No.89 dated 18.04.99 and G.O. Ms. No. 140 dated 18.07.99, the Detaining Authority, in our view has got powers to take into consideration both prevailing circumstances and also future circumstances. In that view of the matter, it is not proper for the learned counsel appearing for the petitioner to contend that the Detaining Authority has no power on 17.07.99 to consider the circumstances likely to be prevailed in the future.

However, as noted above, learned Public Prosecutor would submit that in the present case, the Detaining Authority has taken into consideration only the prevailing and not future circumstances. In the detention order, it is stated thus:-

Whereas IV. Jeganathan, I.P.S., Inspector General and Commissioner of Police, Salem City, on the materials placed before me, I am satisfied that Murugan @ Arapallu Murugan, male, aged about 33 years S/o Madhu, residing at 472. Velu Nagar, Dadagapatti, Annadanapatti police station limits, Salem City is a Goonda as contemplated under the Tamil Nadu Act 14 of 1982 and whereas the aforesaid individual is found indulging in an activity prejudicial to the maintenance of public order and public peace and details of which are set out in detail in the grounds of detention.

These wordings contained in the detention order, as correctly pointed out by the learned Public Prosecutor would make it clear that the Detaining Authority has taken into consideration the ground case involving an incident which took place on 07.07.99. He has referred to all the adverse cases, namely, three cases which took place on various dates from 16.02.997. So, the detention order does not show that the Detaining Authority had considered any circumstances which are likely to be prevailed in the future.

No doubt, it is true that in the grounds of detention in paragraph 5, the Detaining Authority would state as follows:-

I am also aware that in similar cases, accused are enlarged by the same Court or the superior Courts after lapse of some time, and if he comes out on bail in this case, he will indulge in such further activities in future as well which will be prejudicial to the maintenance of public order and public peace.

This portion cannot be taken to mean that the Detaining Authority has considered the circumstances which would be prevailed in the future.

But on the other hand, he has expressed his apprehension regarding consequences, in the event of bail being granted. It may be pointed out that the Detaining Authority has given a clear assertion in paragraph 4 of the detention order, which is as follows:-

I am satisfied that Murugan @ Arapallu Mtirugan is habitually committing violent crimes and he is also acting in a manner prejudicial to the maintenance of public order and public peace and as such he is a Goonda as contemplated u/s 2(f) of the Tamil Nadu Act 14 of 1982. By committing the above described heinous crime in the day time in business area, he has created an alarm and a sense of insecurity in the minds of the general public of the area and thereby the said Murugan @ Arapallu Murugan has acted in a manner prejudicial to the maintenance of public order and public peace.

This paragraph would indicate that he has taken into consideration only the prevailing circumstances as on 17.07.99 with reference to the incident took place on 07.07.99 and other incidents which took place earlier.

The decision cited by Abhay Shridhar Ambulkar Vs. S.V. Bhave, Commissioner of Police and Others, would not. in our view, apply to the facts of the present case. It is true that it is mentioned that the word "or" used in the G.O. is a disjunctive word and the Department should have shown what are all the circumstances under which the word "and" can be taken as conjunctive word. But in the very same judgment, it has been held as follows:

The subjective satisfaction on the prevailing circumstances, or circumstances that are likely to prevail at a future date is the sine qua non for the exercise of power. The use of the word ''or'' signifies either of the two situations for different periods. The power can of course be exercised for a future period by taking into consideration circumstances prevailing on the date of the order as well as circumstances likely to prevail in future.

The observation of the Supreme Court would also strengthen the contention of the learned Public Prosecutor that the Detaining Authority has got powers, in pursuance of the Government Order to take into consideration both the circumstances or either of these two. But. we do not propose to go into the validity of the Government Order as referred to in the Apex Court.

But on the other hand, we are only concerned with the question relating to the validity of the detention order passed by the Detaining Authority by taking into consideration the circumstances whether prevailing or future which, as indicated earlier, we are of the clear view, as contained in the paragraph 4 of the detention order, the Detaining Authority has taken into consideration the past incident as such, on 17.07.99, the Detaining Authority was invested with the powers to pass order of detention by detaining the detenu by taking into consideration the prevailing circumstances.

Before parting with the case, it is appropriate to refer to the judgment of the Supreme Court reported in 1993 (1) S.C.C. 1199 (supra), where similar Government Order was upheld by the Supreme Court, which would specifically state that the judgment of Apex Court in Abhay Shridhar Ambulkar Vs. S.V. Bhave, Commissioner of Police and Others, has no relevance to the acts of the present case. This observation, in our view, would squarely apply to the facts of the present case. As such, the facts of the present case would not apply to the facts of the case reported in Abhay Shridhar Ambulkar Vs. S.V. Bhave, Commissioner of Police and Others,

So in that view of the matter, we do not see any infirmity or illegality in the order passed by the Detaining Authority. Hence, the H.C.P. is dismissed.