Madras High Court
S.Vasanthi vs The Commissioner Of Police on 10 April, 2023
H.C.P.No.2203 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
H.C.P.No.2203 of 2022
S.Vasanthi .. Petitioner
Vs
1.The Commissioner of Police,
Tambaram Police Commissioner Office,
Sholinganallur, Chennai – 600 119.
2.The Additional Chief Secretary,
Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
3.The Superintendent,
Central Prison-II,
Puzhal, Chennai – 600 066.
4.State By:
Inspector of Police,
S-15 Selaiyur Police Station,
Chennai. .. Respondents
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Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of habeas corpus calling for the records pertaining to
the order of detention passed by the first respondent herein and made in
BCDFGISSSV No.154/2022 dated 06.10.2022 and to set aside the same and
directing the third respondent to produce the detenu Thiru.Prasanna
Venkatesh Balaji @ Aswin, aged 24 years, S/o.Balaji Krishnan now
confined in Central Prison-II, Puzhal, Chennai before this Court and thereby
setting him at liberty.
For Petitioner : Mr.A.Nagarajan
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
assisted by Mr.M.Sylvester John
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has
been filed by mother of detenu assailing a 'preventive detention order dated
06.10.2022 bearing reference BCDFGISSSV No.154/2022' [hereinafter
'impugned detention order' for the sake of convenience and brevity]. To be
noted, fourth respondent is the sponsoring authority and first respondent is
the detaining authority as impugned detention order has been made by first
respondent.
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2.Impugned detention order has been made under 'The Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Cyber law offenders,
Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders,
Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act,
1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the
sake of convenience and clarity] on the premise that the detenu is a 'Goonda'
within the meaning of Section 2(f) of Act 14 of 1982.
3.There is one adverse case. The ground case which is the sole
substratum of the impugned detention order is Crime No.224/2022 on the
file of T-12 Selaiyur Police Station for alleged offences under Sections 406,
420, 506(i) @ 406, 420, 409 and 506(i) of 'The Indian Penal Code (45 of
1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. Owing to
the nature of the challenge to the impugned detention order, it is not
necessary to delve into the factual matrix or be detained further by facts.
4.Mr.A.Nagarajan, learned counsel on record for petitioner and
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Mr.R.Muniyapparaj, learned State Additional Public Prosecutor assisted by
Mr.M.Sylvester John, learned counsel for all respondents are before us.
5.We find from the support affidavit in the captioned HCP that very
many grounds have been raised/urged. However, in the hearing learned
counsel for petitioner posited his campaign against the impugned preventive
detention order on two points and they are as follows:
(1) The detenu was arrested on 26.08.2022 but the impugned
detention order was made only on 06.10.2022, 41 days
later;
(2) The substratum of the impugned detention order is one
ground case and one adverse case, both are qua alleged
offences interalia under Sections 406, 420 IPC and it is not
a case of prejudice to public order.
5.In response to the aforesaid two points, Mr.R.Muniyapparaj, learned
Additional Public Prosecutor assisted by Mr.M.Sylvester John, learned
counsel made submissions to the contrary and a summation of the
submissions are as follows:
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(1) There cannot be numeric expression in terms of making of
the impugned detention order qua date of arrest;
(2) It is case of cheating within the meaning of 415 of IPC
punishable under Section 420 IPC and therefore, the
impugned detention order was clamped.
6.We carefully considered both the points that were urged by learned
counsel for petitioner and resisted by learned Prosecutor before us.
7.As regards the first point, there is no numeric expression, much less
statutory numeric expression of the number of days within which a
preventive detention order has to be made qua date of arrest. To put it
differently, this is not a quantitative expression argument. It is a qualitative
expression argument and if translated into a legal proposition, the same is
'live and proximate link between grounds of detention and purpose of
detention has snapped'. It can also be said that the ground case has become
stale. The lead case in this regard is the celebrated/oft quoted Bhawarlal's
case reported in (1979) 1 SCC 465 [Bhawarlal Ganeshmalji v. State of
Tamil Nadu]. This Bhawarlal's case principle was subsequently reiterated
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by the Hon'ble Supreme Court in a recently decided case i.e. Sushanta
Kumar Banik's case [Sushanta Kumar Banik Vs. State of Tripura &
others reported in 2022 LiveLaw (SC) 813 : 2022 SCC OnLine SC 1333].
To be noted, as regards Banik case we are referring to paragraph numbers as
in Live Law report. In paragraph 18 of Banik case, Bhawarlal principle has
been reiterated and paragraph 18 of Banik case reads as follows:
19.Chinnappa Reddy, J. speaking for the Bench in
Bhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC
465, has explained as follows:
“It is further true that there must be a “live and
proximate link” between the grounds of detention alleged
by the detaining authority and the avowed purpose of
detention namely the prevention of smuggling activities.
We may in appropriate cases assume that the link is
“snapped” if there is a long and unexplained delay
between the date of the order of detention and the arrest
of the detenu. In such a case, we may strike down an
order of detention unless the grounds indicate a fresh
application of the mind of the detaining authority to the
new situation and the changed circumstances. But where
the delay is not only adequately explained but is found to
be the result of the recalcitrant or refractory conduct of
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the detenu in evading arrest, there is warrant to consider
the “link” not snapped but strengthened.”
(Emphasis supplied)
8.Two other important paragraphs in Banik case are paragraphs 20
and 21 [paragraph numbers as per Live Law report] which reads as follows:
'20.It is manifestly clear from a conspectus of the
above decisions of this Court, that the underlying principle
is that if there is unreasonable delay between the date of
the order of detention & actual arrest of the detenu and in
the same manner from the date of the proposal and passing
of the order of detention, such delay unless satisfactorily
explained throws a considerable doubt on the genuineness
of the requisite subjective satisfaction of the detaining
authority in passing the detention order and consequently
render the detention order bad and invalid because the “live
and proximate link” between the grounds of detention and
the purpose of detention is snapped in arresting the detenu.
A question whether the delay is unreasonable and stands
unexplained depends on the facts and circumstances of
each case.
21.In the present case, the circumstances indicate
that the detaining authority after the receipt of the proposal
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from the sponsoring authority was indifferent in passing
the order of detention with greater promptitude. The “live
and proximate link” between the grounds of detention and
the purpose of detention stood snapped in arresting the
detenu. More importantly the delay has not been explained
in any manner & though this point of delay was
specifically raised & argued before the High Court as
evident from Para 14 of the impugned judgment yet the
High Court has not recorded any finding on the same.'
9.Before we proceed further it is necessary to briefly set out the facts
qua Banik case as that is being referred to as a case law citation. Banik
case arose under 'Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988' [hereinafter 'PIT NDPS Act' for the sake
of brevity] in Tirupura. In Banik case after considering the trajectory the
matter took from the date of recommendation by the Sponsoring Authority,
Hon'ble Supreme Court went into the issue of live and proximate link
between grounds of detention and purpose of detention snapping and held
that there are two facets to this argument. One facet is 'unreasonable delay'
and the other facet is 'unexplained delay'. In the case on hand, we find that
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the point clearly falls in the latter category/facet as the reason remains
unexplained i.e., reason for delay.
10.Though the first point itself enures to the benefit of the petitioner
in petitioner's campaign against the impugned detention order, we deem it
appropriate to consider the second point also as the same was urged in the
hearing. A careful perusal of the impugned preventive detention order
brings to light that both the ground case and the lone adverse case turn on
alleged offences qua Sections 406 and 420 IPC. A further perusal of the
facts of these cases as narrated in the impugned preventive detention order
brings to light that it is a transaction between individuals. As a
contradistinction illustration, we say that it is not a case of collecting
deposits from the public at large by making false representations or by
luring public into making deposits by making tall but false claims. In this
view of the matter, we deem it appropriate to extract and reproduce the
relevant paragraph qua the ground case [as in the impugned preventive
detention order] and the same is as follows:
'........One Prasanna Venkatesh Balaji came in to
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contact with him through his close family friends. The said
Prasanna Venkatesh Balaji introduced himself as stock
trader and an advisor in the share market and placed before
him few fascinating ideas through Whatsapp and in person.
Believing his words, he gave Rs.48 lakhs as investment to
Prasanna Venkatesh Balaji through his bank account. He
also gave case infront of the parents of Prasanna Venkatesh
Balaji in his home as investment as per his advise. He
introduced several schemes with huge investments and
hence they further invested money. Specifically, they have
invested huge money in SBI future contract which is going
to mature in the month of August. However, he stated that
the date of maturity is extended to one more month and
they will get extra money for that extension also and sent
records through Whatsapp. Then he informed that, the
contract is matured in the month of September and yielded
handsome profit and sent statement of account. Then he
told that he is going to Paris on business work and will
come back in the month of October and will settle the
amount. Having come to know that he didn't gone to Paris,
they contacted him but he bargained for time and dodged
for a month. They went to the house of Prasanna Venkatesh
Balaji and he along with his mother Vasanthi, father Balaji
and brother Narasimhan agreed to return their money. After
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a gap of few days the complainant contacted him, but he
didn't responded. Again they went to his house, but this
time he threatened to kill them with henchmen if they
disturb him often. However they gave time to him as they
told that they will return the money. Meanwhile they
requested to atleast return their capital amount, but didn't
get any response from him. After a gap of few days, when
they went to his house he was not there. Further through
his activities they came to a conclusion that he was cheated
them deliberately. Meanwhile, when the complainant and
his uncle Kasthuri Rangan and friend Murugan went to the
house of Prasanna Venkatesh Balaji on 07.01.2022, but no
one is there. When they contacted through cell phone,
Prasanna Venkatesh Balaji, his mother and brother abused
him in filthy language and threatened to eliminate him by
arranging henchmen by using the money which was earned
by them by cheating the persons like him. In this
connection on receipt of complaint from
Thiru.Sarvabouman, the Sub-Inspector of Police has
registered a case in T-12 Selaiyur P.S. Cr.No.224/2022
u/s.406, 420, 506(i) IPC @ 406, 420, 409, 506() IPC and
taken up the investigation.'
11.The adverse case as set out in the impugned preventive detention
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order is as follows:
'The complainant Thiru.Naresh is working as a Delhi
Chief reporter of WIN TV Company. His wife Rukmani is
working in the Accounts Department of Deepam
Educational Welfare Society, an NGO at Kottivakkam,
Chennai. On Suresh is also working as an Accounts
Manager in the same Company. In the year 2020, he lured
them by telling that he is running an import and export
business and if they invest Rs.1 lakh they can earn Rs.20
thousand per month. Believing his words, they invested
money and the said Suresh also paid the profits for two
months. Further, instigated by the said Suresh, he has
collected lakhs of rupees from his relatives and invested 1½
Crore rupees. He has sent this money through bank
transactions only. To his dismay, since one month Suresh
started to tell Rukmani that he became bankrupt as he has
lost all the investments in the business. On hearing this, his
health condition is deteriorated and he along with his
relatives including his brother's son-in-law Maran met
Suresh and he took them to one Prasanna Venkatesh Balaji
of Medavakkam and he handed over the records of his
newly purchased BMW Car and the documents of his
apartment and shouldered the burden of paying their money.
Believing the words of Prasanna Venkatesh Balaji, they
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returned back, but even after a week time, there is no
response from his side. When the complainant approached
Maran for further course of action, he told them that he will
take that BMW car and the documents of the property for
his money and told them that they don't have money and
told him to go and collect money from him if they can. In
this connection, on receipt of complaint from Thiru.Naresh,
a case was registered. The accused Thiru.Prasanna
Venkatesh Balaji was arrested and the case is U.I.'
12.A careful perusal of the aforementioned narrative in the impugned
preventive detention order leaves us with the considered view that the
matter may not move from law and order arena to public order arena. In this
regard, we deem it appropriate to recollect the celebrated judgment of the
Hon'ble Supreme Court in Ram Manohar Lohia vs. State of Bihar and
others reported in AIR 1966 SC 740. The most relevant paragraphs are
paragraphs 51 and 52, which reads as follows:
'51.We have here a case of detention under Rule 30 of
the Defence of India Rules which permits apprehension and
detention of a person likely to act in a manner prejudicial to
the maintenance of public order. It follows that if such a
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person is not detained public disorder is the apprehended
result. 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. Does
the expression "public order" take in every kind of disorder
or only some ? The answer to this serves to distinguish
"public order" from "law and order" because the latter
undoubtedly takes in all of them. 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. Suppose that the two fighters were of rival
communities and one of them tried to raise communal
passions. The problem is still one of law and order but it
raises the apprehension of public disorder. Other example
can be imagined. The contravention of law always affects
order but before it can be said to affect public order, it must
affect the community or the public at large. A mere
disturbance of law and order leading to disorder is thus not
necessarily sufficient for action under the Defence of India
Act but disturbances which subvert the public order are. A
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District Magistrate is entitled to take action under Rule
30(l)(b) to prevent subversion of public order but not in aid
of maintenance of law and order under ordinary
circumstances.
52.It will thus appear that just as "public order" in the
rulings of this Court (earlier cited) was said to comprehend
disorders of less gravity than those affecting "security of
State", "law and order" also comprehends disorders of less
gravity than those affecting "public order". One has to
imagine three concentric circles. Law and order represents
the largest circle within which is the next circle
representing public order and the smallest circle represents
security of State. It is then easy to see that an act may affect
law and order but not public order just as an act may affect
public order but not security of the State. By using the
expression "maintenance of law and order" the District
Magistrate was widening his own field of action and was
adding a clause to the Defence of India Rules.'
13.A careful perusal of the aforementioned celebrated Ram Manohar
Lohia's case make it clear that Hon'ble Supreme Court has propounded
three concentric circles doctrine i.e., 'Law and order', 'Public order' and
'Security of State' in that order. This three concentric circles doctrine has
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also been explained by taking an illustrative approach which is captured in
the extracted paragraph supra. It is clear that in the case on hand it can only
be a law and order issue as it is private transaction. Furthermore, we also
remind ourselves that when preventive detention orders are assailed, the
question which we put to ourselves is whether normal and regular law and
order is good enough to contain the situation. If the answer is in the
affirmative, the impugned preventive detention order deserves to be
dislodged as it does not gravitate into the second concentric circle of 'Public
order'. In the light of the narrative qua the ground case and adverse case as
in the impugned preventive detention order [which we have extracted and
reproduced supra] as the same are private transactions, we have no difficulty
in coming to the conclusion that the case on hand does not move from the
'Law and Order' larger concentric circle to the 'Public Order' smaller
concentric circle. This means that the answer to the question which we
posed to ourselves, namely 'whether normal and regular law and order is
good enough to contain the situation?' is in the affirmative. That the answer
is in the affirmative by itself means that the impugned detention order
deserves to be dislodged.
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14.As regards the live and proximate link between grounds of
detention and purpose of detention and on snapping point is concerned, we
have repeatedly held that this point has to be tested on a case to case basis
and the neutral citations are Gomathi Vs.The Principal Secretary to
Government and others reported vide Neutral Citation of Madras High
Court being 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil
Nadu and others reported vide Neutral Citation of Madras High Court
being 2023/MHC/733, Sangeetha Vs. The Secretary to the Government
and others reported vide Neutral Citation of Madras High Court being
2023:MHC:1110 and N.Anitha Vs. The Secretary to Government and
others reported vide Neutral Citation of Madras High Court being
2023:MHC:1159.
15.Likewise, as regards Law and Order and Public Order in the three
concentric circles doctrine also, we have repeatedly held that the same also
has to be tested on a case to case basis.
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16.Ergo, the sequitur is, captioned HCP is allowed. Impugned
detention order dated 06.10.2022 bearing reference BCDFGISSSV
No.154/2022 made by the second respondent is set aside and the detenu
Thiru.Prasanna Venkatesh Balaji @ Aswin, male, aged 24 years, son of
Thiru.Balaji Krishnan is directed to be set at liberty forthwith, if not
required in connection with any other case / cases. There shall be no order
as to costs.
(M.S.,J.) (M.N.K.,J.)
10.04.2023
Index : Yes / No
Neutral Citation : Yes / No
Speaking Order/Non-Speaking Order
cse
P.S: Registry to forthwith communicate this order to Jail authorities in
Central Prison, Puzhal, Chennai.
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To
1.The Commissioner of Police,
Tambaram Police Commissioner Office,
Sholinganallur, Chennai – 600 119.
2.The Additional Chief Secretary,
Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
3.The Superintendent,
Central Prison-II,
Puzhal, Chennai – 600 066.
4.The Inspector of Police,
S-15 Selaiyur Police Station,
Chennai.
5.The Public Prosecutor,
High Court, Madras.
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H.C.P.No.2203 of 2022
M.SUNDAR, J.,
and
M.NIRMAL KUMAR, J.,
cse
H.C.P.No.2203 of 2022
10.04.2023
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