Madras High Court
Mahalakshmi vs The Secretary To The Government on 9 September, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
HCP.No.1707 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.09.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
H.C.P.No.1707 of 2024
Mahalakshmi ... Petitioner
Vs.
1.The Secretary to the Government,
Home, Prohibition & Excise (XVI) Department,
Secretariat, Chennai – 600 009.
2. The Commissioner of Police,
O/o.Commissioner of Police,
Chennai City.
3.The Superintendent of Prison,
Central Prison, Puzhal,
Chennai District.
4.The Inspector of Police,
R-11, Ramapuram Police Station,
Chennai. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus, to call for the entire records connected with the detention
order in BCDFGISSSV No.629/2024 dated 04.06.2024 on the file of the
Respondent No.2 and quash the same and direct the respondents to produce the
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HCP.No.1707 of 2024
body and person of petitioner's Son one named Mr.Dinesh S/o.Suresh aged about
24 years now confined at Central Prison, Puzhal before this Court and set him at
liberty forthwith.
For Petitioner : Mr.P.Muthamizhselvakumar
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.)
The order of detention passed by the second respondent in BCDFGISSSV
No.629/2024, dated 04.06.2024, is sought to be quashed in the present Habeas
Corpus Petition.
2.The impugned detention order has been issued based on one relied on case
registered by the T-4, Maduravoyal Police Station, in Crime No.515 of 2023, under
Sections 341, 294 (b), 323, 384, 560 (ii) IPC @ 341, 294 (b), 323, 384, 506 (ii),
332 IPC. The ground case was registered in Crime No.269 of 2024 by R-11,
Ramapuram Police Station, under Sections 276, 294 (b), 353, 328, 506 (i) IPC &
77 of the Juvenile Justice (Care and Protection of Children) Act 2015. The
detaining authority in the ground case formed an opinion that the detenu has been
selling intense pain killing tablets Tapentadol – Aspadol under the guise of narcotic
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and ecstasy tablets to the public and the school students at higher rates. He used
to sell the tablets stating that the said tablets are mixed with NS Water liquid after
getting the same from the medical shop and if injected into their nerve it will give
more and long term intoxication.
3.The learned Additional Public Prosecutor would submit that the said pain
killing drugs are falling under the list of psychotropic substances under the
Narcotic Drugs and Psychotropic Substances Act, 1985. Under Section 65 A of
Narcotic Drugs and Psychotropic Substances Rules, sale, purchase, consumption
or use of psychotropic substances are prohibited. Therefore, the police have taken
initiative to alter the sections in the FIR since the FIR was originally registered only
under IPC offences.
4.It is left open to the investigating authority to alter the provisions suitably
or to prosecute the persons in accordance with the law of the land. The Habeas
Corpus Petition on hand is only about the impugned detention order passed by
invoking Act 14 of 1982. Careful perusal of one relied on case and the ground
case, the offence against the detenu is that he sold certain pain killing tablets to the
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school students at higher rates by falsely stating that if it is injected into their
nerve, it will give more and long term intoxication. Except one adverse case, there
is no other case pending against the detenu. The ground case indicates that the
pain killing tablets Tapentadol – Aspadol were sold under the guise of narcotic and
ecstasy tablets. Therefore, the investigating officer is at liberty to proceed against
the detenu under the law of the land.
5.As far as the preventive detention order is concerned, we do not find any
clinching materials available on record to arrive a conclusion that there is
likelihood of causing breach of public order. In the absence of materials available
on record, detention order cannot be passed in a routine manner by the detaining
authority. In most of the cases, the detention orders are passed with an idea to
convict the offenders, which cannot be encouraged by the Courts. The police
authorities have to prosecute the offenders under the law of the land and by
following the due procedures. They cannot adopt a shortcut procedure by
detaining a person by invoking Act 14 of 1982. Such practices at no circumstances
be approved by the High Courts. Personal liberty being a fundamental right, no
person can be convicted without following the due procedures. The very object
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and purpose of preventive detention law is to prevent crime. Only on certain
exceptional circumstances where the detaining authority arrived a conclusion that
there is a likelihood of breach of public order and the term public order has been
well defined by the Supreme Court in number of judgments and more specifically,
in the case of Ram Manohar Lohia v. State of Bihar reported in [AIR 1966 SC
740] and the relevant portion is extracted hereunder:
“12. The distinction between a disturbance to law and
order and a disturbance to public order has been clearly
settled by a Constitution Bench in Ram Manohar Lohia v. State
of Bihar, AIR 1966 SC 740. The Court has held that every
disorder does not meet the threshold of a disturbance to
public order, unless it affects the community at large. The
Constitution Bench held:
“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 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
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disturbances and at the other the most serious and
cataclysmic happenings. Does the expression
“public order” take in every kind of disorders or
only some of them? 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
examples can be imagined. The contravention of
law always affects order but before if 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
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but disturbances which subvert the public order are.
A District Magistrate is entitled to take action under
Rule 30(1)(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.”
6.In view of the facts and circumstances, we do not find any reason to
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sustain the impugned detention order. Consequently, the impugned order of
detention in BCDFGISSSV No.629/2024, dated 04.06.2024, is quashed and the
Habeas Corpus Petition stands allowed. The detenue, namely, Mr.Dinesh,
S/o.Suresh, aged about 24 years, now confined at Central Prison, Puzhal, is
directed to be set at liberty forthwith unless he is otherwise required in connection
with any other case.
[S.M.S., J.] [V.S.G., J.]
sli 09.09.2024
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
To
1.The Secretary to the Government,
Home, Prohibition & Excise (XVI) Department,
Secretariat, Chennai – 600 009.
2. The Commissioner of Police,
O/o.Commissioner of Police, Chennai City.
3.The Superintendent of Prison,
Central Prison, Puzhal, Chennai District.
4.The Inspector of Police,
R-11, Ramapuram Police Station, Chennai.
5. The Public Prosecutor,
High Court, Madras.
S.M.SUBRAMANIAM, J.
AND
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V.SIVAGNANAM, J.
sli
09.09.2024
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