Madras High Court
Sangeetha vs The Secretary To Government on 6 January, 2025
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
HCP.Nos.2473 of 2024 batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2025
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE M.JOTHIRAMAN
H.C.P.Nos.2473, 2583, 2654, 2316, 2476, 3165, 2577, 2649, 2582, 2633,
2288, 2315, 2550, 2318, 3061, 2359, 2528 and 2711 of 2024
HCP.No.2473 of 2024:
Sangeetha ... Petitioner
Vs.
1 The Secretary To Government
Home Prohibition And Excise Department
Secretariat Fort St George Chennai - 600 009.
2 The District Magistrate And
District Collector,
Kallakurichi District
Kallakurichi.
3 The Superintendent Of Police
Kallakurichi, Kallakurichi District.
4 The Superintendent Of Prison
Central Prison, Cuddalore,
Cuddalore District.
5 The State Rep By Its the Inspector Of Police,
CBCID Villupuram,
Villupuram District. ... Respondents
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PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, to call for the entire records relating to the
petitioners husband detention under Tamil Nadu Act 14 of 1982 vide
detention order dated 25.08.2024 on the file of the second respondent
herein made in proceedings D.O.NO.C2/45/2024 quash the same as illegal
and consequently direct the respondents herein to produce the petitioners
husband namely CHINNADURAI S/O.GUNDU IYYER @
PERIYASAMY AGED 36 YEARS before this High Court and set the
petitioners husband at Liberty from detention now the petitioners husband
detained at Central Prison Cuddalore.
For Petitioner : Mr.V.Manimaran
For Respondents : Mr.P.S.Raman asst. by
Mr.R.Muniyapparaj
Additional Public Prosecutor
COMMON ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.)
The batch of Habeas Corpus Petitions before us relating to an
unfortunate incident of death of several persons on consumption of illicit
arrack in two places namely Karunapuram, Sankarapuram and
Madhavachery in Kallakurichi District.
2. Preventive detention orders issued under Act 14 of 1982 are
impugned in these batch of Writ Petitions. Perusal of the detention orders
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would show that few detenues have already involved in some criminal
cases and other detenues are detained only based on the ground case. An
unfortunate incident occurred on 18th and 19th of June, 2024. Illicit arrack
sold by detenues was consumed by some persons, resulted in loss of life,
caused injuries to some persons and others faced various health issues
including blindness. Serious damages caused to the health of the persons
consumed illicit arrack, which created a panic in and around Kallakurichi
District. The distributors of chemicals including methanol, ethyl alcohol
and the persons transported, were also arrested and criminal cases are
registered against them. Persons who manufactured the illicit arrack and
sold the same in public were also arrested. Against all these arrested
persons, preventive detention order have been passed by the detaining
authority under Act 14 of 1982. The State invoked Section 2(b) of Act 14
of 1982.
3. Admittedly, Prohibition Wing of the police department is
functioning in Kallakurichi District. They have not effectively prevented
manufacturing of illicit arrack in that locality. Contrarily, cases are
registered against the few sellers repeatedly, which is creating a serious
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doubt in the mind of the case about the genuinity of those criminal cases
registered. It is not a case where police officials, revenue officials are
unaware of selling of illicit arrack in Kallakurichi District. But an
inefficient action, omissions, commissions and lapses resulted in selling of
illicit arrack in large scale is going on for a long time. Those officials who
are responsible and accountable also must be prosecuted. It is brought to
the notice of this Court that the Division bench of this Court already
handed over the investigation to the CBI, which was confirmed by the
Hon'ble Supreme Court of India. Thus, those aspects are to be investigated
by CBI for initiation of all further appropriate actions.
4. The respective learned counsels appearing on behalf of the
detenues would mainly contend that there was an enormous delay in
passing the impugned detention orders from the date of arrest of the
detenues. Therefore, preventive detention is an after thought and more so,
the detenues have not filed any bail petition, and in some cases where bail
petition are filed, but not granted. The detention orders are passed after a
lapse of about 2 months from the date of arrest. Therefore, the relevancy
for invoking preventive detention law lost its significance and thus, the
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preventive detention orders are liable to be set aside. Criminal cases are
registered against the detenues in Crime No.2 of 2024 for the offences
under Sections 328, 304(2) IPC and 4(1)(i), 4(1-A) TNP Act and Crime
No.3 of 2024 for the offences under Sections 328, 302 IPC and 4(1)(i),
4(1-A) TNP Act and Crime No.4 of 2024 for the offences under Sections
328, 302 IPC r/w 4(1)(i), 4(1-A) TNP Act.
5. The chemical dealers involved in the criminal case are native
of Northern India and they do not know reading of Tamil language. Though
they speak Tamil language, they cannot read the documents supplied to
them in Tamil language. It is not in dispute that in respect of those
detenues, the documents relied on by the Detaining Authority were not
translated into the language known to them, despite the request made to the
competent authorities. Thus, the non translation of the documents relied on
in the language known to the detenues remain fatal and it caused prejudice
to the detenues to submit their representation in an effective manner, which
is a valid right conferred under Act 14 of 1982 and the Constitution of
India.
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6. It is brought to the notice of this Court that manufacturing of
illicit arrack and selling in large scale is going on for several years with the
blessings and assistance of the prominent political persons in that locality
and with the active support of the police, revenue and other connected
departments. In the present case, on account of over dosage of mixing of
chemicals, including methanol caused death to the consumers and serious
health ailments including blindness.
7. Mr.P.S.Raman, learned Advocate General would oppose by
stating that the death of innocent persons who consumed illicit arrack
resulted in public disorder in that locality. The State is in the process of
handing over the investigation to the CBI, as per the directions of this
Court and confirmed by the Apex Court of India. Near about 70 persons
died. 161 persons suffered various health issues and few turned into blind.
Thus, the State is justified in issuing the order of detention by invoking Act
14 of 1982.
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8. We have considered the argument as advanced between the
parties to the lis on hand.
9. It is not in dispute that the impugned detention orders have
been passed with a delay of about 2 months from the date of arrest of the
detenues in connection with the criminal cases registered in Crime No.2, 3
and 4 of 2024. The delay in passing the detention order under the
preventive detention law has been considered by the Hon'ble Supreme
Court in the case of Licil Antony Vs. State of Kerala1 held as follows,
“We have given our thoughtful consideration to
the rival submissions and we have no doubt in
our mind that there has to be a live-link between
the prejudicial activity and the order of detention.
COFEPOSA intends to deal with persons
engaged in smuggling activities who pose a
serious threat to the economy and thereby
security of the nation. Such persons by virtue of
their large resources and influence cause delay in
making of an order of detention. While dealing
with the question of delay in making an order of
detention, the court is required to be circumspect
and has to take a pragmatic view. No hard-and-
1 2014 11 SCC 326
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fast formula is possible to be laid or has been laid
in this regard. However, one thing is clear that in
case of delay, that has to be satisfactorily
explained. After all, the purpose of preventive
detention is to take immediate steps for
preventing the detenu from indulging in
prejudicial activity. If there is undue and long
delay between the prejudicial activity and making
of the order of detention and the delay has not
been explained, the order of detention becomes
vulnerable. Delay in issuing the order of
detention, if not satisfactorily explained, itself is
a ground to quash the order of detention. No rule
with precision has been formulated in this regard.
The test of proximity is not a rigid or a
mechanical test. In case of undue and long delay
the court has to investigate whether the link has
been broken in the circumstances of each case.”
10. Even recently, the Supreme Court of India in the case of
Arjun Vs. State of Maharasthra2 in SLP.Crl.No.12516 of 2024 dated
11.12.2024,
12. The distinction between a public order and law
and order has been succinctly discussed by
2 2024 LiveLaw (SC) 982
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Hidayatullah, J. (as His Lordship then was) in the
case of Ram Manohar Lohia v. State of Bihar and
Another1:
“54. ... 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 (1966) 1
SCR 709 : 1965 INSC 175 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.…
55. It will thus appear that just as ‘public
order’ in the rulings of this Court (earlier
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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.”
13. It could thus be seen that a Constitution Bench of
this Court in unequivocal terms held that every
breach of peace does not lead to public disorder. It
has been held that when a person can be dealt with in
exercise of powers to maintain the law and order,
unless the acts of the proposed detainee are the ones
which have the tendency of disturbing the public
order a resort to preventive detention which is a harsh
measure would not be permissible.
14. Recently, a Bench of this Court has referred to
various judgments of this Court while following the
law laid down by this Court in the case of Ram
Manohar Lohia (supra), it will be appropriate to
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reproduce the following paragraph from the judgment
of this Court in the case of Ameena Begum v. State of
Telangana and Others2.
“38. For an act to qualify as a disturbance to
public order, the specific activity must have
an impact on the broader community or the
general public, evoking feelings of fear,
panic, or insecurity. Not every case of a
general disturbance to public tranquillity
affects the public order and the question to
be asked, as articulated by Hon'ble M.
Hidayatullah, C.J. in Arun Ghosh v. State of
W.B. [Arun Ghosh v. State of W.B., (1970)
1 SCC 98 :
1970 SCC (Cri) 67] , is this : (SCC p. 100,
para 3) “3. … Does it [the offending act]
lead to disturbance of the current of life of
the community so as to amount a
disturbance of the public order or does it
affect merely an individual leaving the
tranquillity of the society undisturbed?”
39. In Arun Ghosh case [Arun Ghosh v.
State of W.B., (1970) 1 SCC 98 : 1970 SCC
(Cri) 67] , the petitioning detenu was
detained by an order of a District Magistrate
since he had been indulging in teasing,
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harassing and molesting young girls and
assaults on individuals of a locality. While
holding that the conduct of the petitioning
detenu could be reprehensible, it was further
held that it (read : the offending act) “does
not add up to the situation where it may be
said that the community at large was being
disturbed or in other words there was a
breach of public order or likelihood of a
breach of public order. (Arun Ghosh case
[Arun Ghosh v. State of W.B., (1970) 1 SCC
98 : 1970 SCC (Cri) 67] , SCC p. 101, para
5)” (2023) 9 SCC 587
40. In the process of quashing the impugned
order, the Hidayatullah, C.J. while referring
to the decision in Ram Manohar Lohia
[Ram Manohar Lohia v. State of Bihar, 1965
SCC OnLine SC 9 : (1966) 1 SCR 709] also
ruled : (Arun Ghosh case [Arun Ghosh v.
State of W.B., (1970) 1 SCC 98 : 1970 SCC
(Cri) 67] , SCC pp. 99-100, para 3) “3. …
Public order was said to embrace more of
the community than law and order. Public
order is the even tempo of the life of the
community taking the country as a whole or
even a specified locality. Disturbance of
public order is to be distinguished from acts
directed against individuals which do not
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disturb the society to the extent of causing a
general disturbance of public tranquillity.
It is the degree of disturbance and its effect
upon the life of the community in a locality
which determines whether the disturbance
amounts only to a breach of law and order.
… It is always a question of degree of the
harm and its effect upon the community. …
This question has to be faced in every case
on facts. There is no formula by which one
case can be distinguished from another.”
41. In Kuso Sah v. State of Bihar [Kuso Sah
v. State of Bihar, (1974) 1 SCC 185 : 1974
SCC (Cri) 84] , Hon'ble Y.V. Chandrachud,
J. (as the Chief Justice then was) speaking
for the Bench held that : (SCC pp. 186-87,
paras 4 & 6) “4. … The two concepts have
well defined contours, it being well-
established that stray and unorganised
crimes of theft and assault are not matters of
public order since they do not tend to affect
the even flow of public life. Infractions of
law are bound in some measure to lead to
disorder but every infraction of law does not
necessarily result in public disorder. … ***
6. … The power to detain a person without the
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safeguard of a court trial is too drastic to permit a
lenient construction and therefore Courts must be
astute to ensure that the detaining authority does not
transgress the limitations subject to which alone the
power can be exercised.” (emphasis supplied)
15. As to whether a case would amount to threat to
the public order or as to whether it would be such
which can be dealt with by the ordinary machinery in
exercise of its powers of maintaining law and order
would depend upon the facts and circumstances of
each case. For example, if somebody commits a
brutal murder within the four corners of a house, it
will not be amounting to a threat to the public order.
As against this, if a person in a public space where a
number of people are present creates a ruckus by his
behaviour and continues with such activities, in a
manner to create a terror in the minds of the public at
large, it would amount to a threat to public order.
Though, in a given case there may not be even a
physical attack.”
11. Preventive detention laws are draconian in nature. It infringes the
personal liberty of a person, a fundamental right of citizen enshrined under
the Constitution of India. Constitutional Courts time and again reiterated
that preventive detention law is to be invoked sparingly and in exceptional
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cases, where there is a likelihood of causing breach of public order.
Subjective satisfaction of the detaining authority based on the materials
available in record for invoking preventive detention law is of paramount
importance. Preventive detention law cannot be invoked in a routine
manner by the authorities with an idea to punish the persons who are
involved in a criminal case. In the event of issuing the preventive detention
for the purpose of punishing a person, who has involved in a criminal case,
the Constitutional Courts have to step in and ensure that such persons are
set at liberty forthwith.
12. The difference between “Public disorder” and “Law and
Order” are distinguished by the Hon'ble Supreme Court in the case of Ram
Manohar Lohia v. State of Bihar reported in [AIR 1966 SC 740].
“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
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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 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
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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 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
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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. In the present case, there was a delay of about 2 months in
issuing the detention order. The detenues are in actual imprisonment for
about 5 to 6 months under the preventive detention law. On account of
efflux of time and the fact that the detenues are in imprisonment for about
5 to 6 months, the element of likelihood of causing breach of public order
as required under Act 14 of 1982 become lost its relevance. Keeping the
detenues under preventive detention law anymore may not yield any result,
since the investigations into the criminal cases have already been
completed by the State police and interim charge sheet has been already
filed. Therefore, this Court is of the considered opinion that the detention
under preventive detention law is no more required and more so, the delay
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and non translation of certain documents to few detenues are also fatal.
14. It is brought to the notice of this Court that bail has not been
granted to any of the detenues. In the event of filing any bail petition, the
Investigating Agency hereinafter CBI is at liberty to oppose the bail
petition or in alternate, request the Court to impose stringent conditions till
the disposal of the criminal cases. Contrarily keeping the detenues under
preventive detention law would undoubtedly offend their personal liberty
as ensured under the Constitution of India.
15. Accordingly, the detention orders issued by the second
respondent in D.O.No.C2/45/2024 dated 25.08.2024, D.O.No.C2/47/2024
dated 28.08.2024, D.O.No.C2/60/2024 dated 21.09.2024,
D.O.No.C2/42/2024 dated 21.08.2024, D.O.No.C2/54/2024 dated
11.09.2024, D.O.No.C2/58/2024 dated 18.08.2024, D.O.No.C2/48/2024
dated 28.08.2024, D.O.No.C2/52/2024 dated 09.08.2024,
D.O.No.C2/40/2024 dated 20.08.2024, D.O.No.C2/59/2024 dated
21.09.2024, D.O.No.C2/39/2024 dated 20.08.2024, D.O.No.C2/44/2024
dated 25.08.2024, D.O.No.C2/49/2024 dated 28.08.2024,
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D.O.No.C2/41/2024 dated 21.08.2024, D.O.No.C2/46/2024 dated
25.08.2024, D.O.No.C2/43/2024 dated 25.08.2024, D.O.No.C2/61/2024
dated 26.09.2024 and D.O.No.C2/53/2024 dated 09.09.2024 are hereby set
aside and the Habeas Corpus Petitions are allowed. The respective detenues
connected with the above impugned detention orders are directed to be set
at liberty, unless their confinement is required in connection with any other
cases.
[S.M.S., J.] [M.J.R., J.]
06.01.2025
Index: Yes/No
Internet:Yes/No
Neutral Citation: Yes/No
gd
To
1 The Secretary To Government
Home Prohibition And Excise Department
Secretariat Fort St George Chennai - 600 009.
2 The District Magistrate And
District Collector,
Kallakurichi District
Kallakurichi.
3 The Superintendent Of Police
Kallakurichi, Kallakurichi District.
4 The Superintendent Of Prison
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Central Prison, Cuddalore,
Cuddalore District.
5 The State Rep By Its the Inspector Of Police,
CBCID Villupuram,
Villupuram District.
6 The Joint Secretary to Government
Public (Law and Order),
Fort ST.George, Chennai – 9.
7 The Public Prosecutor,
Madras High Court.
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S.M.SUBRAMANIAM, J.
AND
M.JOTHIRAMAN, J.
gd
H.C.P.Nos.2473 of 2024 batch
06.01.2025
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