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Judgment
Srinivasan, J.—This petition is in challenge of an order of detention made by the first Respondent u/s 3(1) 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 14 of 1982), familiarly known as the ''Goondas Act'' in this part of the country (hereinafter referred to as ''the Goondas Act'').
By that order dated 24-9-1992 in Memo No. 243/BDFGIS/92 the Petitioner was declared to be a goonda within the meaning of the Goondas
Act and that there was compelling necessity to detain him in order to prevent him from indulging in such activities which are prejudicial to the
maintenance of public order under the said Act.
The material facts which are set out in the order of detention are as follows:
On 15.1.92 at about 02:45 hrs. the Sub Inspector of Police N-3 Muthialpet Police Station along with his police party conducted vehicle check and
noticed the Petitioner along with his four associates transporting 55 bags of I.D. arrack sachets in a Matador van bearing No. TMA-7522 at the
junction of West Kalmandapam Road and Grace Garden, Royapuram, Madras. When the police party signalled him to stop the said van for
check, the speeded their vehicle and tried to escape. When one of the constables tried to stop the van, they dashed against his cycle and thereby
attempted to murder him at the spot. One Naveen Chandran lodged a complaint in this regard. The Petitioner and another by name Krishnan
abandoning their van escaped from the spot. The Petitioner''s other associates were arrested at the spot and later released on bail. The case was
filed against them and it is pending trial before the Court in C.C. No. 4872/92
On 6-9-1992 a police party noticed a lorry bearing registration No. ABC-5209 in CIT Nagar, Mylapore and the Petitioner standing near the lorry
along with his associates. When the police party was seen the Petitioner shouted at the lorry driver to drive the vehicle away. Immediately the
vehicle was started. One of the constables got into the lorry when the Petitioner and others got into the lorry through back side. Another constable
rushed to the front side and directed the driver to stop the lorry but the latter did not obey. Immediately that constable broke the windscreen by
beating it with his lathi. Another constable who tried to get into the lorry was pushed away by the Petitioner and was prevented from entering the
lorry. Thereafter the lorry proceeded at great speed and dashed against a tree branch as well en route. Two constables followed the lorry in an
autorickshaw and the lorry was being driven in a rash and negligent manner. The public who were walking in the nearby roadside noticed the hot
chase and ran helter-skelter for safer places. When the lorry reached Greenways road near the lyyappa temple the Petitioner and his associates
caught hold of the constable, who entered the vehicle, by his legs and hands and threw him out of the running lorry on the roadside. The said
constable fell down on the road and died on the spot. A case was registered in E-1 Mylapore police station in Crime No. 2294/92 u/s 4(1)(a) of
the Tamil Nadu Prohibition Act, 1937 and Ss. 147, 363 and 302 Indian Penal Code. The case was taken up for investigation. The Petitioner
surrendered before the Judicial Magistrate, Arani, on 16.9.92 and he was taken into police custody from 17-9-92 to 24-9-92 by the Inspector of
Police, E-1 Mylapore police Station on requisition made before the Judicial Magistrate, Ami. In the course of Investigation the Inspector of Police
examined the Petitioner and recorded his confessional statement. Later the Petitioner was produced before the Court on 23-9-1992 since
investigation against him was completed and he was lodged at Central Prison, Madras, as a remand prisoner. The investigation into the entire was
not over.
The detention order proceeds to state that by committing the aforesaid crime in a public place and in a residential locality in the city of Madras and
brutally murdering a police constable who was discharging his official duties in attempting to thwart the clandestine transportation of I.D. arrack by
the Petitioner and his associates, the Petitioner has created alarm and a feeling of insecurity in the minds of the people of the area and thereby acted
in a manner prejudicial to the maintenance of public order. The order has said that the Officer is satisfied that there is a compelling necessity to
detain the Petitioner in order to prevent him from indulging in such activities which are prejudicial to the maintenance of public order under the
Goondas Act.
The order was served on the Petitioner and he made his representations against the said order on 19-10-1992. He made two representations
one to the Advisory Board and another to the Secretary to the Government, who is the second Respondent herein. His wife also made a third
representation on 23-10-92 raising the plea of ability in favour of the Petitioner and contending that he could not have been present in the city of
Madras on the dates referred to. The Advisory Board confirmed the detention order and the Petitioner has preferred this writ petition challenging
the said order.
The Petitioner has raised the following contentions in support of his petition:
(1) The detention order discloses that there was total non-application mind on the part of the first Respondent;
(2) The definition of ''goonda'' as found in the Goondas Act is not satisfied in the present case and there is nothing on record to show that the
Petitioner is a habitual offender. The order discloses only one adverse case and one ground case. The ground case shall be excluded from
consideration;
(3) The order of approval of the detention order made by the Government has not been communicated to the Petitioner in time;
(4) The order does not set out the subjective satisfaction of the first Respondent;
(5) Relevant documents have not been supplied to the Petitioner which has prejudiced his case;
(6) The representations made by the Petitioner and his wife have not been considered by the authorities; and
(7) The order of rejection of the representation has not been communicated to the Petitioner.
Before we consider the contentions raised by the Petitioner''s counsel it is necessary to set out briefly the general principles of law regarding
preventive detention, and the power of Court as laid down by the apex Court in several cases.
In State of Bombay v. Atma Ram AIR 1951 SC 197 it was held that the Court cannot interfere with an order of detention except on grounds of
mala fides if it is found that the grounds set out in that order are connected with the object of detention. The test prescribed was that if the grounds
on which it is said that the Government was satisfied are such as a rational human being can consider connected in some manner with the objects
which were to be prevented from being attained, the question of satisfaction except on the ground of mala fide cannot be challenged in a Court.
In Shibban Lal Saksena Vs. The State of Utter Pradesh and Others, the position was reiterated and it was held that the Court is not competent
even to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu.
In Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, the Court held that there should be application of mind by the authorities
to the facts and materials and if the facts are pertinent and proximate to the objects of detention the Court cannot interfere with the same. It was
pointed out that the matters in regard to each individual should be considered and any element of arbitrariness and automatism should be excluded.
In Fitrat Raza Khan Vs. State of Uttar Pradesh and Others, it was held that an inference can be drawn from prior events showing tendencies or
inclinations of a man that in the future he would act in a manner prejudicial to the maintenance of public order. It was found on the facts of that case
that prejudicial conduct or antecedent history of the person concerned was not proximate in time and had no rational connection with the
conclusion that his detention was necessary for maintenance of public order.
In Ashok Kumar v. Delhi Administration AIR 1982 SC 114 an order of preventive detention was considered in detail under the provisions of
the National Security Act 65 of 1980. The distinction between ''public order'' and ''law and order'' was clearly pointed out in that case. The
relevant passages are worthwhile extracting here.
The true distinction between the areas of ''public order'' and ''law and order'' lies not in the nature of quality of the act, but in the degree and extent
of its reach upon society. The distinction between the two concepts of the ''law and order'' and ''public order'' is a fine one but this does not mean
that there can be overlapping. 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 touch the problem of law and order, while in another it might affect public order. The act
by itself therefore is not determinant of its own gravity. It is the potentiality of act to disturb the even tempo of the life of the community which
makes it prejudicial to the maintenance of public order. That test is clearly fulfilled in the facts and circumstances of the present case.
Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or
public order requires. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something
but to intercept before he does it and to prevent him from doing it. Justification for such detention is suspicion or
reasonable probability and not criminal conviction which can only be warranted by legal evidence. It follows that any preventive measures, even if
they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution
to prevent mischief to the State. It is a matter of grave concern that in urbanised areas like cities and towns and particularly in the metropolitan city
of Delhi the law and order situation is worsening everyday and the use of knives and firearms has given rise to a new violence. There is a constant
struggle to control the criminal activities of the persons engaged in such organised crimes for the maintenance of public order. It is difficult to
appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed, but
which the law enforcement agency is not able to substantiate. There is no reason why the Executive cannot take recourse to its power of
preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he
is a dangerous person
who has overawed witnesses or against whom no one is prepared to depose"". (Paras 13 & 14).
In Kamlakar Prasad Chaturvedi Vs. State of M.P. and Another, it was held that it was not open to the detaining authority to pick up an old
and stale incident and hold it as the basis of an order of detention u/s 3(2) of the National Security Act. On the facts it was found that the incidents
had taken place about five years and two years previously and that was not proximate to the detention.
In Vijay Narain Singh Vs. State of Bihar and Others, the question was considered in detail. It should be pointed out at this stage that it was
rendered by a Bench of three Judges two of whom were parties to the judgment in Ashok Kumar Vs. Delhi Administration and Others, Justice
A.P. Sen reiterated the view taken by him in the earlier case whereas Justice Venkataramiah, who had agreed with Justice Sen in the earlier case
took a different view in the present case. The other learned Judge, Justice Chinnappa Reddy concurred with Justice Venkataramiah. Each of the
Judges delivered separate judgments and there was no reference in any of the judgments to the earlier judgment in Ashok Kumar Vs. Delhi
Administration and Others, The case arose under Bihar Control of Crimes Act, 7 of 1981. The definition of ''anti-social element'' in the said Act is
somewhat similar to the definition of ''goonda'' found in the Goondas Act of this State. That also referred to the offender being habitual. The
meaning of the word ''habitual'' was considered by Justice Sen and it was observed as follows:
A person is a habitual criminal who by force of habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime.
It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the
society in general. Shorn of verbiage the word ''Habitually'' means ''by force of habit''. (Vide Para 12)
Justice Venkataramiah said:
The expression ''habitually'' means ''repeatedly'' or ''persistently''. It implies a thread of continuity stringing together similar repetitive acts.
Repeated, persistent and similar, but not isolated individual and dissimilar acts are necessary to justify and inference of habit. It connotes frequent
commission of acts or omissions of the same kind referred to in each of the said sub-clause or an aggregate of similar acts or omissions. (vide para
31).
It was held that a single act would not be sufficient to bring the person within the definition of ''habitual offender''. However, it was categorically
held that it is not open to the Court to go into the adequacy or sufficiency of grounds of detention and the Court could only consider the relevancy
and proximity of such grounds.
In Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala and Others, a detention order/relying on a confession,
which was retracted and also other materials warranting detention, came up for consideration. The Court held that even if the retracted confession
could be excluded form consideration the other materials were sufficient to enable the concerned officer to arrive at subjective satisfaction and the
order of detention could not be challenged.
In Raj Kumar Singh Vs. State of Bihar and Others, a case arising under Bihar Control of Crimes Act, it was held that although the proximity
between the incidents mentioned in the order of detention betrays a nature and a tendency of committing the offences it cannot be denied that they
indicate that the detenu was one who habitually committed offences which are at least punishable under the Indian Penal Code. The satisfaction of
the District Magistrate that the detenu is one who is habitually committing or abetting the commission of offences is therefore neither irrational nor
unreasonable. It was pointed out that the law of preventive detention is a hard law and must be applied with circumspection rationally, reasonably
and on relevant materials.
In Smt. K. Aruna Kumari Vs. Government of Andhra Pradesh and Others, the case arose under the prevention of Black marketing and
Maintenance, of Supplies of Essential Commodities Act. The detenu accepted the allegations against himself in his statement recorded u/s 161 Crl.
P.C. it was held that though it may not be a legally recorded confession which can be used as substantive evidence against the accused in the
criminal case it cannot be completely brushed aside on that ground for the purpose of his preventive detention. It was again pointed out that the
Court cannot go into the probative valued of the evidence available before the detaining authority.
In Sumen v. The State of Tamilnadu 1986 L.W. (Crl.) 221 a Full bench of this Court held that confessions made by the detenus could be
considered for the purpose of making the detention orders against them. The relevant discussion is found in the following passages:
... The nature of the jurisdiction of detention is thus now well established. The order of detention is made by an executive authority and that when it
makes such an order, it does not do so in the exercise of judicial or quasi-judicial power, nor is jurisdiction to reach subjective satisfaction a
criminal or
a quasi-criminal in character. While making use of any material in order to form a subjective satisfaction, the normal rule of criminal jurisprudence
of proof beyond reasonable doubt is not attracted. Similarly, the proceeding before the Advisory board is also not quasi judicial or quasi-criminal
in character, it is in the light of this well settled position of law that the question as to whether on the analogy of Section 25 the confession cannot be
considered as valid material by the detaining authority must be determined, it is true that confessions recorded by police officers are often looked
upon with suspicion. Section 25 of the Evidence Act which provides that no confession made to a police officer, shall be proved as against a
person accused of an offence, is undoubtedly a bar against the use of such confession for the purpose of proving an offence against an accused
person. Though initially it was argued that Section 25 of the Evidence Act should be construed as ruling out the use of a confession as material to
be considered by the detaining authority, what was however finally contended is that on the analogy of Section 25, a confession must be excluded
from consideration by the detaining authority. Confession is a form of an admission and even in a criminal case Section 27 of the Evidence Act
carves out a small area in which such a confession could be proved. The rule of English Criminal Law which makes confession by an accused
inadmissible to be proved against him and on which Section 25 of the Evidence Act is based is discussed by the Privy Council in Ibrahim v.
Emperor (AIR 1914 PC 155). The Privy Council has observed as follows:
It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it
is shown by the prosecution to have been a voluntary statement, in the sense, that it has not been obtained from him either by a fear of prejudice or
hope or advantage exercised or held out by a person in authority.
The following further observations of the Privy Council are also relevant:
It is to be observed that logically three objections (i.e., that the statement was preceded by and made in answer to a question, and that the question
was put by a person in authority and the answer given by a man in his custody all go to the weight and not to the admissibility of the evidence.
What a person having knowledge about the matter the issue says of it is itself relevant to the issue as ""evidence against him. That he made the
statement under circumstances of hope, fear, interest or otherwise strictly goes only to its weight. In an action of tort, evidence of this land could
not be excluded when tendered against a tortfeasor, though a jury might well be told as prudent men to think little of it. Even the rule which
excludes evidence of statements made by a prisoner, when they are induced by hope held out, or fear inspired by a person in authority is a rule of
policy. ""A confession forced from torture or fear comes in as questionable a shape when it is to be considered as evidence of guilt, that no credit
ought to be given to it."" Rex v. Werwsickshall (1783 1 Leach. C.c. 263). It is not that the law presumes such statements to be untrue, but from the
danger of receiving such evidence Judges have thought it better to reject it for the due administration of justice. Reg. v. Baldry (1852 2 Den. CCR
4300). Accordingly when hope or fear were not in question, such statements were for long regularly admitted as relevant, though with some
reluctance and subject to strong warnings as to their weight.
These observations admirably set out the reasons for excluding the confessions for being proved against the accused""(vide para 28)
The provisions of the Evidence Act do not"" ""regulate the consideration of the material which is put before the detaining authority for consideration
in order to decide whether it would make an order of detention. If generally the provisions of the Evidence Act are not attracted in the case of an
administrative action, there is no reason why only in respect of a statement made by the proposed detenu either the provisions of Section 25 or the
principle behind Section 25 should be brought in by way of regulating the consideration of the material laid before the detaining authority, xxx xxxx
(vide para 29)
An argument was then advanced that if a confession is permitted to be used as relevant material for considering whether a person should be
detained or not, the detaining authority may make an order of detention solely on a confession. This, to say the least, is an argument of despair. In a
given case it is possible that making an order of detention only on the basis of a confession may amount to an abuse of the power. But this power
itself cannot be negatived because there is a possibility of its abuse. In such a case, the exercise of the power might alone become bad. This is,
however, a question to be determined on facts on which it might arise"". (vide para 38)
We have already referred to the judgments in Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala and Others, and
Smt. K. Aruna Kumari Vs. Government of Andhra Pradesh and Others,
An analysis of the above decisions shows that it is not for the Court to sit in judgment over the detaining authority and consider whether the
facts set out in the order of detention were true and whether the materials were sufficient for making the order of detention. The only question to be
considered by the Court is whether the materials were relevant for the matters to be decided by the detaining authority and whether they were
proximate in time. It is not in dispute that the satisfaction of the detaining authority is a subjective one and not an objective one. Hence, if the
detention order shows materials to prove the subjective satisfaction on the part of the authority concerned then the Court has to uphold the same.
Now we shall take up the contentions of learned Counsel for the Petitioner one by one.
(1) Non-application of Mind: It is contended by learned Counsel that the order shows non-application of mind on the part of the first Respondent.
For this purpose learned Counsel submits that the case referred to as the first case in the order of detention was actually registered on 15.9.1992
as evident from the copies of the papers served on the detenu. According to the affidavit of the Petitioner the case was registered only mala fide
after the second incident took place and only for the purpose of passing an order of detention. But in the course of arguments learned Counsel for
the Petitioner contended that there is a mistake in the papers supplied to him and the first Respondent had not even taken note of the mistake. It is
contended that when the papers referred to the date of registration of the case as 15.9.1992 the first Respondent has proceeded on the footing
that the case was registered on 15.1.1992. There is no substance argument. The record shows that the case was registered on 15.1.1992 before
the VII Metropolitan Magistrate, George Town, Madras-1 and he also passed orders of remand on that day. In the counter affidavit the first
Respondent has stated that he looked into the original records and took the date therefrom. Learned Counsel for the Petitioner contends that the
Xerox copies furnished to the Petitioner contain a different date and if the original records had been looked into by the authority the xerox copies
would not reflect a wrong date. Here again, there is no merit. Learned Additional Public Prosecutor pointed out that the records looked into by the
first Respondent were in manuscript and before xerox copies were made out they were typed and thereafter Xerox copies were made out and
given to the detenu. It is clear that when the papers were typed a typographical error crept in and the date was shown as 15.9.1992 instead of
15.1.1992. The so-called discrepancy in the dates will not affect the rights of the Petitioner. The records show that the case was registered on
15.1.1992 and there was no question of any mala fide on the part of the first Respondent in registering the first information report as regards the
first incident.
Moreover, the above will not show in any way the non-application of mind on the part of the authority. In Kamarunnissa and Others Vs. Union
of India and another, the number of the relevant clause under which the detention order was passed was not mentioned. The Court held that there
is no merit in the contention that it would prove non-application of mind on the part of the detaining authority. Further, the order used an expression
''bailable offence'' wrongly. It was found to be a wrong usage of the expression but still the Court held that there was no question of non-
application of mind of the authority. In this case, the typographical errors, if any, in the papers supplied to the Petitioner do not prove the non-
application of mind on the part of the first Respondent, hence the contention is rejected.
(2) Definition of ''goonda'' not satisfied: It is the argument of learned Counsel for the Petitioner that the facts set out in the detention order do
not prove that the Petitioner is a ''goonda'' as defined by the ''Goondas Act''. Section 2(f) of the ""Goon-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 Chapter XVI or Chapter XVII or Chapter
XXII of the Indian Penal Code. Reliance is placed on the rulings of the Supreme Court in Vijay Narain Singh Vs. State of Bihar and Others, for
interpreting the word ''habitual''. Our attention is drawn to the judgments in Lakshmi v. The Commissioner of Police, Egmore, Madras 1985 L.W.
(Crl.) 165 in which a division Bench of this Court considered the position. It was held that two requirements should be satisfied before an order of
detention is passed. The Bench held that the detaining authority has to first find out whether a person is a goonda or a bootlegger, or a drug
offenders or a slum grabber in the first instance and secondly it should be found that he has acted in a manner prejudicial to the maintenance of
public order. Similar rulings are found in In the matter of detenu Thalapathi Daniel v. State of Tamil Nadu 1985 L.W. (Crl.) 281; Logu alias
Loganathan v. The State of Tamil Nadu (1986 L.W. Crl. 159) and Kumari v. The State of Tamil Nadu (1988 L.W. Crl. 117).
It is submitted that in the present case the two acts referred to in the detention order did not prove that the Petitioner has committed offences
habitually and he is a ''goonda'' as defined under the Goondas Act. Learned Counsel also drew our attention to the judgments in W.P. No. 4341
of 1986 Desappan v. State of Tamil Nadu, etc.) order dated 25.11.1986) and W.P. No. 9342 of 1986 Thomas v. State of Tamil Nadu etc.
(Order dated 25.11.1986), wherein a Division Bench of this Court has considered the question. In the first case it was stated in the counter
affidavit that the detention order was made on the basis of certain materials which were not disclosed in the order of detention. Hence the Court
held that the order was not valid. In the second case it was held that there was no proximity between the two instances set out in the order of
detention and the same could not be sustained.
Strong Reliance is placed on the judgment of the Division Bench of this Court in Kumari''s case 1988 L.W. (Crl.) 117 (supra). The Division
Bench held that the two questions to be considered by the detaining authority are (1) whether there have been materials for objective satisfaction
that the person concerned was a goonda and (2) whether there were materials for subjective satisfaction for deciding that the person concerned
was acting in a manner prejudicial to the maintenance of public order. With respect we are unable to agree with the first part of the ruling that there
should be materials before the officer to come to an objective satisfaction on the question that a person is a goonda. Learned Counsel for the
Petitioner does not go to the extent of arguing that there should be objective satisfaction to consider whether a person is a goonda. We have
referred already to a number of rulings of the Supreme Court in which it has been clearly held that the question should be decided only on the basis
of subjective satisfaction and not on objective satisfaction. Hence both the requirements have to be decided only on the basis of subjective
satisfaction.
Further in that Kumari''s case 1988 L.W. (Crl.) 117 (supra) it was held that to brand a person as a goonda it is not enough to state that the
detenu has committed offences but there should be something more than that.
The relevant passage on which reliance is placed reads thus:
.... As stated above, we do not say that to brand a person ''a goonda'' proof of convictions are absolutely necessary but we do say that without
proof of convictions it will be very difficult to hold a person ''a goonda''.
We are of the view that the proposition has been too widely stated and it runs counter to the judgment of the Full Bench cited before the learned
Judges in that case, the judgment of the Full Bench in Rakkamma v. State of Tamil Nadu and Ors. W.P. No. 814 of 1986, Order dated 2.5.1986
has been brushed aside by the Division Bench with an observation that the question referred to the Full Bench was vague. We are of the view that
a judgment of a Full Bench cannot be ignored by a Division bench. What exactly was decided by the Full bench should be considered and
whatever is the decision it is binding on the Division bench of this Court.
The judgment of the Full Bench has been reported later in Mrs. Rakkamma v. State of Tamil Nadu 1991 L.W. (Crl.) 307. It is categorically
held that there was no warrant to hold that a conviction was necessary for classifying a person as goonda under the Goondas Act. The Full Bench
overruled an earlier judgment of the Division Bench in W.P. No. 8462 of 1985. It was also pointed out that the judgment of the Supreme Court in
Vijay Narain Singh Vs. State of Bihar and Others, did not lay down a proposition that in order to infer habitualness previous convictions were
necessary. The relevant passage in the judgment reads as follows:
Learned Public Prosecutor is correct in her submission that the Tamil Nadu Legislature was not unaware of what is meant by a ''habitual offender''.
The Legislature must be attributed every wisdom that is due to it. If with the Act VI of 1948 before it, u/s 2(1) of the Tamil Nadu Act 14 of 1982,
if it does not insist upon previous conviction for a ''goonda'' the omission must be held to be deliberate and not unintentional, to import the notions
of criminal jurisdiction. In the guise of interpretation the court cannot add on to the Legislation, which it has chosen to positively leave out.
Reliance is also placed on the judgments of the Supreme Court in Haridas Amarchand Shah of Bombay Vs. K.L. Verma and Others, and
Ayub @ Pappukhan Nawabkhan Pathan Vs. S.N. Sinha and another, and it was submitted that a solitary act is not sufficient to prove that the
person is habitually committing offences. No doubt it is so. But in the present case the facts show that the Petitioner herein is a habitual offender.
The detention order itself refers to two cases and there is similarity between the two cases. In the first case the charge was u/s 279, 353 and 307
Indian Penal Code. It is not necessary to refer to the other charges in that case. In the second case the charge is under Ss. 147, 363 and 302
Indian Penal Code. In the first case an attempt was made to murder a police constable who tried to stop the Petitioner and his associates and in
the second case a police constable was murdered by the Petitioner and his associates. It shall not be taken that we are deciding the issue but we
only point out that these were the materials that were placed before the detaining authority and they were relied on by him. It is not for us to
consider the truth or otherwise of the same. Suffice it to point out that the materials were relevant and they were proximate in time.
Learned Addl. Public Prosecutor referred to several cases in which it has been held that even on the basis of solitary act inference can be
drawn that the person concerned is likely to commit such acts which would disturb public order, and which should be prejudicial to the
maintenance of public order. In Debu Mahato Vs. The State of West Bengal, it was observed that if there was a reasonable prognosis of the future
behaviour of a person based on his past conduct judged in the light of the surrounding circumstances, such past conduct may consist of one single
act or of a series of acts. It was also held that the inference could reasonably be drawn from such single act that the person would be likely to
repeat such acts so as to warrant his detention. Similar rulings of the Supreme Court in Mrs Saraswathi Seshagiri Vs. State of Kerala and Another,
; M. Mohammed Sulthan Vs. The Joint Secretary to Govt. of India, Finance Deptt. and Others, and Abdul Sathar Ibrahim Manik Vs. Union of
India and others, were also referred to. As rightly pointed out by learned Counsel for the Petitioner in all these cases the detention orders have
been under other Acts viz., National Security Act and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, which did
not require the commission of offences habitually. They are not similar to the provisions of the Goondas Act. However, learned Additional Public
Prosecutor has drawn our attention to the decision of a Bench of this Court in Phoola v. State 1984 L.W. Crl. 363. That was a case under the
Goondas Act (Act 14 of 1982). After referring to the definition of ''goondas'' the Bench held that it is not correct to say that in order to brand a
person as a goonda within the meaning of Section 2(f) of the Act he should have committed more than one offence punishable under Chapter XVI
or Chapter XVII or Chapter XXII of the Indian Penal Code and that unless there is a conviction and sentence for more than one offence, he
cannot be considered to be a goonda. It was also pointed out that it is for the detaining authority to consider whether the provisions of the
Goondas Act will have to be invoked in a particular case, or regular criminal law should be invoked. With respect we agree with the reasoning of
the Division Bench in this case.
It is next contended by learned Counsel for the Petitioner that in the present case there are only two instances cited in the order of detention,
one in January, 1992 and the other in September, 1992 and the latter led to the passing of the order of detention. Learned Counsel submits that
the earlier case is adverse case and the later case is ground case. We do not find any warrant either under the provisions of the Goondas Act or
anywhere else for the use of such expressions, as adverse case and ground case. But we find that in some decisions of the Court these expressions
have been used. Learned Counsel places reliance on the judgments in W.P. No. 3020/92 P. Nagendran v. State of Tamil Nadu and W.P. No.
3031 of 1992 Shankar v. Inspector of Police etc.2. In both cases it has been held that the ground case should not be taken into consideration for
the purpose of passing a detention order. Consequently, the Bench took the view that there being only one adverse case earlier it could not prove
that the person concerned was a habitual offender. If the Bench has laid it down as a proposition of law, we do not agree with the same. But
however, it is not necessary in the present case to make a reference to a Full Bench to decide the question as on the facts of this case we find that
there are materials to show that the Petitioner is a habitual offender. We will refer to them a little later.
In our view the question to be decided by the court is whether the materials taken into account by the detaining authority are relevant to enable
him to arrive at subjective satisfaction as to whether the person concerned is a goonda and whether he is acting in a manner prejudicial to the
maintenance of public order. We have already referred to the definition of ''goonda'' in Section 2(f). Section 3(1) of the Goondas Act provides that
the order of detention shall be made with a view to prevent the person concerned from acting in any manner prejudicial to the maintenance of
public order. Thus the order of detention u/s 3(1) is to prevent the person concerned from acting in a manner prejudicial to the public order.
''Acting in a manner prejudicial to the maintenance of public order'' has been defined in Section 2(e). In so far as a goonda is concerned it is
defined as follows:
In the case of a goonda, 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.
The definition of ''goonda'' refers to the habitual commission or attempt to commit or abatement of the commission of offences specified in the
section. When a person is found to be a goonda it goes without saying that he is a person who habitually commits or attempts to commit or abets
commission of offences. Hence it is not necessary further for the authority to wait for his committing another act which is likely to cause prejudice
to the maintenance of public order. If the facts and circumstances placed before the authority are sufficient to enable him to arrive at the conclusion
that he is a goonda then those facts and circumstances are sufficient to consider the second question also as to whether such acts will cause
prejudice to the maintenance of public order. The object of the Act is to prevent the person concerned to act in a manner prejudicial to the
maintenance of public order. It would be futile to contend that the authority should wait till he acts in such a manner. In that case it will not be
preventive detention but a case of detention after the commission of the offence. Hence a reading of Section 3(1) together with Section 2(a) and (f)
of the Goondas Act makes it clear that if the commission of offences is sufficient to brand a person as a goonda within the meaning of Section 2(f)
they can themselves be taken into account for considering the question whether he is acting in a manner prejudicial to the maintenance of public
order.
In In the matter of Mohammed Ali Jinnah, etc., Mohammed Moosa v. The Collector & District Magistrate, Ramnad District 1984 L.W. (Crl.)
200 a Division Bench of this Court has considered the question in detail and held that the last of the instances which has led to the passing of the
detention order can be taken into consideration along with the prior instances. The relevant passages in the judgment read as follows:
Though the grounds of detention referred to the latest criminal activity as the ground on which as the ground on which the detention order has been
made and the earlier criminal activity is only referred to as cases in which the detenu came to adverse notice, it has been held in a series of
decisions of the Supreme Court and this Court that even those cases where the detenu had come to the adverse notice, (sic) have to be considered
to be grounds for detention. (vide para 6)
In Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, with reference to the grounds of detention made u/s 8(a)(i) of Jammu and
Kashmir Public Safety Act, 1978, it was contended that the grounds of detention contained a preamble as well as grounds of detention and that
there is vagueness in the"" ""preamble and that by reason of such vagueness the Petitioner has not found it possible to exercise his right of making
representation under Article 22(5) of the Constitution effectively. On the other hand, it was contended on behalf of the Government, that the
preamble portions themselves are not grounds, that the other portions only form the real grounds of detention and that the vagueness of the
preamble could not possibly justify the argument that the grounds of detention are also vague. Rejecting this contention, the Supreme Court held:
The distinction made in Naresh Chandra Gangulay''s case between the ''preamble'' whereby the recital is in terms of the statutory provision and the
''grounds'' meaning thereby that conclusions of fact which led to the passing of the order of detention does not justify any distinction being made
between introductory facts background facts and ''grounds'' as such. All allegations of facts which have led to the passing of the order of detention
are ''grounds'' of detention. If such allegations are irrelevant or vague the detenu is entitled to be released.
Thus, unless it is in the nature of recital in terms of the statutory provision all the allegations of facts in the grounds of detention are grounds of
detention and it is not the last of the instances, which prompted the department to ""initiate proceeding for preventive detention that would be called
the grounds of detention. In fact if last of the instances alone is to be taken into account as a ground of detention it may not be possible to bring the
detenu as a habitual criminal because it is the prior instance of commission of similar offences that make him a habitual criminal and thereby a
goonda within the meaning of the Act"". (vide para 7)
In this connection we may also usefully refer to the decision of the Supreme Court in Wasiuddin Ahmed Vs. District Magistrate, Aligarh, U.P. and
Others, It was a case dealt with under the National Security Act. The Supreme Court observed:
The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from
prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to
the maintenance of public order. Of course, such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and
should have a rational connection with the conclusion that the detention of the person is necessary.
Prior criminal proceedings ending in a conviction or acquittal or pending investigation or trial are very material circumstances. Those circumstances
might ""quite possibly have an impact on the decision of the detaining authority or the Government whether or not to make an order of detention.
We have therefore no doubt that the grounds for detention are not merely the grounds mentioned as the last instance, but also of all those cases
which have been noticed in the grounds of detention as cases in which the detenu had come to adverse notice. In fact, because of this reason, the
Supreme Court in a number of cases have considered the question, whether those cases which came for adverse notice are proximate and valid
grounds or stale grounds, which could not be taken into account. The question of staleness will not came in unless the earlier instances are also
considered to be grounds of detention"". (vide para 8)
The proceeding under the Tamil Nadu Act 14 of 1982 can neither be considered as an enquiry nor as a trial in respect of any particular offence.
As the long title of the Act itself shows the Act is intended to prevent bootleggers, drug offenders, goondas, immoral traffic offenders, and slum
grabbers, from acting in any manner prejudicial to the maintenance of public order. The activities of these persons, which are considered to be
dangerous and would affect or are likely to affect the maintenance of public order may be criminal in nature, and those criminal actions have to be
dealt with under the normal provisions of the Criminal law. However, when a preventive detention is made under the provisions of the Act, the
detenu is not tried with reference to any offence. Nor could the proceedings be called an inquiry into any particular criminal offence. The object of
the Act, being to prevent such persons from acting in any manner prejudicial to the maintenance of public order, the scope of the proceedings does
not involve any inquiry into any particular offence (sic) nor is it in the nature of a trial. It is the clandestine activity carried on in violation of the law
that was sought to be prevented under the powers vested under the Act. We are of the opinion that the provisions of Section 162, Crl.P.C.,
therefore, cannot be urged as a bar against the government or the detaining authority considering the statements as evidencing the activities which
have a bearing on the maintenance of public order. A similar view has also been taken by a Division Bench of this Court in A. Vellanai v. Collector
and District Magistrate, Jirunetveti, (1983 L.W. (Crl.) 236). This contention of the Petitioner''s counsel that the statement could not be relied on,
has therefore no substance. (Vide para 18)
We agree with the reasoning of the learned Judges in the above said case.
As stated already in this case facts disclose that there were relevant materials before the authority concerned for him to arrive at a subjective
satisfaction. The detention order not only refers to the two incidents earlier mentioned but also to the statement of confession made by the
Petitioner before the inspector of Police. A perusal of the statement of confession shows that he admitted having committed the offences in
question besides having committed some other offences. Learned Counsel for the Petitioner contends that the admission relating to the other
offences would also show that he is a bootlegger but there was no proof that he is a goonda it is not necessary for us to consider the same as no
reliance is placed by the detention order on the statement relating to other offences. It is seen that the Petitioner has admitted the two offences
mentioned in the detention order. That would show that the officer had materials to decide that he was a goonda.
It is next argued that there is no proximity in time between the commission of the first offence and the commission of the second offence.
Learned Counsel submits that a period of eight months had elapsed between the two incidents. There is no substance in this contention. Even a
lapse of one year between the two offences would not negative the proximity of the offences by a habitual offender. The question has been
considered by the Supreme Court in Raj Kumar Singh Vs. State of Bihar and Others, One of the cases was with reference to on offence in March,
1984 and the other one was in March, 1984. The Court held that there was sufficient proximity between the two offences.
The next limb of the argument is that there is no registered case with regard to the other offences as against the Petitioner. Though it is not
necessary for the purpose of this case to consider the said objection, we held that there is no substance in this objection. What is relevant for the
purpose of goonda is only commission of offences and not registration of cases. If the materials before the authority prove that the person
concerned had habitually committed offences or attempted to commit the same or abetted commission of the same that would be sufficient to show
that he is a goonda and the fact that cases were not actually registered against him would not in any way be material.
(3) Delay in communication of the order of approval. Under this heading it is contended by learned Counsel for the Petitioner that there was
considerable delay in communicating the order of approval and that would vitiate the order of detention. Learned Counsel draws our attention to
Section 3(3) of the Goondas Act. That section only requires the approval of the order of detention and does not prescribe any time limit for
communication of the same. In fact, there is no provision for communication of the said order. Hence there is no merit in the contention. There are
a number of rulings on the question and it has been clearly held that non-communication or delay in communication will not vitiate the order of
detention. It has also been held that if at all, non-communication would amount to an irregularity and not an illegality. Vide Deb Sadhan Roy Vs.
State of West Bengal, ; Sundar Rao v. Government of Tamil Nadu ( 1988 (1) MWN (Cr) 59); Smt. K. Aruna Kumari Vs. Government of
Andhra Pradesh and Others, ; Kamarunnissa and Others Vs. Union of India and another, ; Smt. Hawabi Sayed Arif Sayed Hanif Vs. L.
Hmingliana and others, Hence this contention also fails.
(4). Non-Mention of the subjective satisfaction in the order: There is no merit in this contention. The detention order expressly refers to the
satisfaction of the first Respondent that the Petitioner is a goonda and that there is compelling necessity to detain him in order to prevent him from
indulging in such activities.
(5) Failure to supply documents asked for by the Petitioner: It is contended that the Petitioner prayed for supply of certain documents relating
to some bail applications. Even in this Court the Petitioner is not in a position to say as to how the documents are relevant for his case. The
detention order does not make any reference to any other document. All the materials relied on by the detaining authority have been furnished to
the Petitioner and there is no complaint by the Petitioner that there were materials which have been omitted to be furnished by the authority to him.
In these circumstances the non-supply of documents for which the Petitioner made a prayer will not affect the validity of the detention order. It
would sufficient if we make a reference to the following rulings cited at the bar:
Haridas Amarchand Shah of Bombay Vs. K.L. Verma and Others, Syed Farooq Mohammad Vs. Union of India and another, , Kamarunnissa
and Others Vs. Union of India and another, , Abdul Sathar Ibrahim Manik Vs. Union of India and others,
Learned Additional Public Prosecutor brought to our notice the decision of a Division Bench of this Court in W.P. Nos. 5538, etc. of 1990
(Govinda Gounder, etc. v. The Government of Tamil Nadu, etc.) (Order dated 17-9-1990), which has considered the matter in detail after
referring to the case-law on the subject. The relevant passages in the judgment are as follows:
The sum and substance of all the judgments referred to above will show that if on the facts and circumstances of a particular case, the Court found
that the non-supply of a document was vital to the case of the detenu and he was prejudiced in making a proper representation to the authorities,
certainly it would vitiate the order of detention. We are aware of the fact that some of the judgments of this Court have placed emphasis on the fact
that it is for the detenu to decide whether a particular ""document is relevant or not. We are of the opinion that we cannot subscribe to such a wide
indulgence to the detenu having regard to Khudiram Das Vs. The State of West Bengal and Others, decided by a larger Bench of the Supreme
Court. Having regard to the scope and object and the facts disclosed in the order of detention, we have to examine whether the documents asked
for by the detenus have any relationship to the allegations made against the detenus. It will not be proper to hold that the detenus can ask for the
moon and if it is not made available, the order of detention is vitiated. In our view, the prejudice to the Petitioners in making a proper
representation against the order of detention is the cardinal point to be considered"".
X X X
We cannot forget the crux of the matter that the detaining authority was satisfied in each case that the detenu was a bootlegger and had illicitly
procured methyl alcohol and had kept the same in a clandestine manner and sold it to the innocent addicts, as a result of such sale of illicit liquor as
many as 36 persons died"". ""and many other persons were afflicted by several types of illness. We cannot divorce these facts from the request of
the detenus for the supply of certain documents. We are firmly of the opinion that if the documents had nothing to do with the core of the problem,
the non-supply of the documents cannot and will not vitiate the order of detention....
(6) Failure to consider the representations made by the Petitioner and his wife.: It is contended that the Petitioner made two representations on
19-10-1992, one to the Advisory Board and another to the Government. It is argued that one of the representations was not considered by the
Government. Learned Addl. Public Prosecutor has produced the records to prove that the representations have been considered and rejected.
Learned Counsel for the Petitioner drew our attention to a statement in the counter affidavit filed on behalf of the second Respondent. It is
stated in the counter-affidavit that with regard to the representations made by the wife of the Petitioner on 23-10-1992 parawise remarks were
called for from the authorities concerned and ultimately order was passed rejecting the representation. It is contended by learned Counsel that with
regard to the representations made by the Petitioner no such remarks were called for by the Respondents. It is contended that the Petitioner made
specific allegations against the police officials and it was the duty of the Respondents to have called for parawise remarks from the concerned
authorities. Reliance is placed on the judgments of this Court including the Judgment in W.P. No. 7482 of 1992 (Order dated 8.12.1992). In our
view none of the judgments will apply to the facts of this case. The representations made by the Petitioner do not contain any specific allegation
against any particular police official. The general allegation is that the police have registered a false case against the Petitioner and he was not in the
city of Madras at the time when the offences were said to have been committed by him. The representations do not make any reference whatever
to the statement of confession made by the Petitioner. It is not his case either in the representations or in the present writ Petition that the statement
of confession was obtained by the police by force or coercion. In the face of the confession by the Petitioner that he had committed the offences
mentioned in the detention order, there is no substance in the contention of the Petitioner''s counsel that the representations of the Petitioner should
have been considered by the Respondents after calling for parawise remarks from the concerned authorities. Records have been produced before
us by the Additional Public Prosecutor which show that all the three representations made by the Petitioner and his wife have been considered and
rejected
It is next argued that the rejection of the representation on 27-10-1992 would show that the matter could not have been considered at all by
the second Respondent. There is no substance in the argument. The representation made was on 19-10-1992 and the rejection was only eight
days thereafter. That was sufficiently a long period for considering the representation. Learned Additional Public Prosecutor drew our attention to
a judgment of the Supreme Court in Sk. Salim Vs. The State of West Bengal, in support of his contention that even immediate rejection would not
indicate absence of consideration by the authority concerned.
(7) Non Communication of the order of rejection. It is next contended that, the order rejecting all the representations was not communicated to
the Petitioner. Learned Additional Public Prosecutor has produced before us the records to show that the rejection order was communicated to
the Petitioner and he had signed in acknowledgment of the receipt of the said order. We have seen that the order of rejection was served on the
Petitioner on 30-10-1992 and he has signed in acknowledgment thereof. We do not find any merit in the contention raised by learned Counsel for
the Petitioner.
In the result all the contentions put forward by the Petitioner are rejected and the petition is dismissed.