Madras High Court
Umadevi vs The Principal Secretary To ... on 12 October, 2023
2023/MHC/4758
HCP(MD)No.1119 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.10.2023
CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
HCP(MD)No.1119 of 2023
Umadevi ... Petitioner
vs.
1. The Principal Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai-600009.
2. The District Magistrate and District Collector,
Office of the District Magistrate and District Collector,
Pudukkottai District, Pudukkottai.
3. The Superintendent of Prison,
Madurai Central Prison,
Madurai District.
4. The Superintendent of Police,
Trichy District,
Trichy.
5. The Inspector of Police,
Ganesh Nagar Police Station,
Trichy District.
Cr.No.374/2022 ... Respondents
https://www.mhc.tn.gov.in/judis
Page No.1 of 12
HCP(MD)No.1119 of 2023
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Habeas Corpus, calling for the entire records,
connected with the detention order of the respondent No.2 in Detention
Order No.P.D.O.10/2023 dated 19.04.2023 and quash the same and direct
the respondents to produce the body or person of the detenu by name
Durai @ Duraisamy, son of Nagarathinam, aged about 27 years, now
confining as ''GOONDA'' at Madurai Central Prison before this Court
and set him at liberty forthwith.
For Petitioner : Mr.M.Murugesan for
Mr.K.Suyambulinga Bharathi
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.]
Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for
the sake of brevity] has been filed in this Court on 31.08.2023 by the
mother of detenu assailing a 'preventive detention order dated 19.04.2023
bearing reference No.P.D.O.10/2023' [hereinafter 'impugned preventive
detention order' for the sake of convenience and clarity] made by 'second
respondent / District Magistrate and District Collector' [hereinafter
'detaining authority' for the sake of convenience and clarity].
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
2. Impugned preventive detention order has been clamped on
the HCP petitioner's son one Durai @ Duraisamy son of
Thiru.Nagarathinam 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. The substratum of impugned preventive detention order is
largely constituted by three cases i.e., two adverse cases and one ground
case. First adverse case is Crime No.55 of 2018 on the file of
Government Hospital Police Station, Tiruchirappalli City, for alleged
offences inter alia under Sections 147, 148, 294(b), 302, 506(ii) of
'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity] altered as
Sections 120(b), 147, 148, 294(b), 302, 506(ii) read with 34 and 109 of
IPC [alleged occurrence on 03.02.2018], second adverse case is Crime
No.665 of 2022 on the file of Woraiyur Police Station, Tiruchirappalli
City, for alleged offences inter alia under Sections 454, 457 and 380 of
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
IPC [alleged occurrence on 12.06.2022 and 17.06.2022] and the ground
case is Crime No.374 of 2022 on the file of Gandhi Nagar Police Station
for alleged offences inter alia under Sections 147, 148, 341, 294(b), 302
and 506(ii) of IPC altered as 147, 148, 341, 294(b), 302 and 506(ii) of
IPC read with Section 3(1)(V) of Scheduled Caste / Scheduled Tribes
(Prevention of Atrocities) Amendment Act, 1989 [alleged occurrence on
12.12.2022]. The detenu was arrested and released on bail as regards the
first adverse case is what this Bench is informed in the final hearing. As
regards the second adverse case, the detenu was arrested on 20.02.2023.
In the FIR qua ground case which is dated 12.12.2022, the detenu was
not named but it subsequently emerged / came to light that detenu is
involved in the ground case and therefore, a P.T warrant arrest i.e., formal
arrest of a person who is already an arrestee was made qua ground case
on 22.03.2023. In this scenario, the impugned preventive detention order
was clamped on 19.04.2023.
4. As already alluded to supra, captioned HCP was filed in this
Court on 31.08.2023, it was listed in the admission board on 07.09.2023
and a Hon'ble Predecessor Coordinate Bench made the following order in
the admission board and the same reads as follows:
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
'M.S.RAMESH, J.
and
M.NIRMAL KUMAR, J.
Admit.
Mr.A.Thiruvadi Kumar, learned Additional
Public Prosecutor takes notice for the respondents. He
seeks time to file counter affidavit.
Post after six weeks.'
5. In the final hearing, today, Mr.M.Murugesan, learned
counsel representing the counsel on record for the petitioner and
Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor for all the
five respondents are before us.
6. Though very many points have been raised in the support
affidavit qua captioned HCP, learned counsel for HCP petitioner
predicated his campaign against the impugned preventive detention order
on one main point and that one main point is the detaining authority has
not recorded subjective satisfaction as regards imminent possibility of
detenu being enlarged on bail though the detaining authority in the
impugned preventive detention order has repeatedly recorded the fact
that the detenu has not moved bail petition in the ground case.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
7. In response to the aforementioned argument of learned
counsel for HCP petitioner, learned Prosecutor submitted that bail has
been granted in similar cases and therefore there is every possibility of
detenu coming out on bail and it is this that impelled the detaining
authority to make the impugned preventive detention order.
8. We carefully considered the rival submissions.
9. We also find that the aforementioned point raised by learned
counsel for HCP petitioner has been articulated in ground 'a' in the
support affidavit and the same has been met by the respondents in the
counter affidavit sworn to by the detaining authority. We refrain from
extracting and reproducing the pleadings but suffice to say that the
burden of the song qua the detaining authority in the counter affidavit is
that the regular penal law would not have the desired effect of effectively
preventing the detenu from indulging in alleged activities i.e., activities
alleged qua two adverse cases and one ground case.
10. The law is well settled and we remind ourselves of the
celebrated judgment of Hon'ble Supreme Court in Ram Manohar Lohia
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
vs. State of Bihar and others reported in AIR 1966 SC 740, wherein,
Hon'ble Supreme Court propounded three concentrated circles theory and
also explained the three concentric circles theory by way of an
illustrative articulation. We deem it appropriate to extract and reproduce
relevant paragraphs in Ram Manohar Lohia which are as follows:-
'54.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 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
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
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 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.
55.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.'
The above is instructive and we respectfully follow the same. To be
noted, Ram Manohar Lohia has stood the test of time over half a centuary
and it continues to be a good law as it has been reiterated even very
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
recently by Hon'ble Supreme Court in Mallada's case being Mallada
K.Sri Ram Vs. The State of Telangana & others. reported in 2022 Live
Law (SC) 358.
11. It is necessary for a case to move from the first larger
concentric circle representing law and order to second smaller concentric
circle of public order for a preventive detention order to be clamped. In
the case on hand, without recording subjective satisfaction as to
imminent possibility of detenu being enlarged on bail under the regular
law and order mechanism i.e., regular penal law mechanism, the
detaining authority has straightaway come to the conclusion that recourse
to regular penal law would not be good enough to contain the situation.
This coupled with the fact that there is no articulation as to how the
factual matrix moves from the first larger concentric circle of law and
order to the second smaller circle of public order makes it clear that there
is non application of mind and the impugned preventive detention order
has been made in a mechanical manner. In this regard, we remind
ourselves that preventive detention is not a punishment and HCP is a
high prerogative right as articulated by this Court i.e., Madras High
Court in A.K.Gopalan vs. The District Magistrate and another
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
reported in 1949 Cri.LJ 843, wherein Hon'ble Mr.Justice SUBBA RAO,
used the expression 'high prerogative right'. Thereafter, as the law of
preventive jurisprudence evolved, it became clear that the first question
which a habeas court would ask itself is whether the normal law and
order mechanism is good enough to handle the situation or is it
imperative that the State should resort to preventive detention for
containing the situation. Answer to this question which can be clearly
binary would also answer the issue as to whether a preventive detention
order deserves to be interfered with or sustained.
12. In the case on hand, as already alluded to supra, the
detaining authority after repeatedly noticing and mentioning the factual
position that the detenu has not moved any bail petition qua the ground
case in the circumstances alluded to supra, i.e., when he remained
incarcerated in having been arrested in the second adverse case, it is clear
that the impugned preventive detention order is vitiated on the point that
subjective satisfaction has not been recorded and it is being clamped
without application of mind qua imminent possibility of detenu being
enlarged on bail. We also deem it appropriate to add that there is nothing
in the grounds of impugned preventive detention order to demonstrate
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
that the normal law and order mechanism or normal law and order penal
law is not good enough to contain the situation. This means that the
impugned preventive detention order which is vitiated deserves to be
dislodged in this habeas legal drill on hand.
13. Ergo, the sequitur is, captioned HCP is allowed. Impugned
preventive detention order dated 19.04.2023 bearing reference No.P.D.O.
10/2023 made by the detaining authority is set aside and the detenu
Thiru.Durai @ Duraisamy, aged about 27 years, son of
Thiru.Nagarathinam, 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.) (R.S.V., J.)
Index : Yes 12.10.2023
Neutral Citation : Yes
bala
To
1. The Principal Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George, Chennai-600009.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1119 of 2023
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
bala
2. The District Magistrate and District Collector,
Office of the District Magistrate and District Collector,
Pudukkottai District, Pudukkottai.
3. The Superintendent of Prison,
Madurai Central Prison,
Madurai District.
4. The Superintendent of Police,
Trichy District,
Trichy.
5. The Inspector of Police,
Ganesh Nagar Police Station,
Trichy District.
6. The Joint Secretary to Government,
Public (Law and Order) Department,
Secretariat, Chennai.
ORDER MADE IN
HCP(MD)No.1119 of 2023
DATED : 12.10.2023
https://www.mhc.tn.gov.in/judis
