TMI Blog2013 (7) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided under Section 3(3) of the Act. Thereafter, on 12.3.2013, the Government referred the matter to the Advisory Board as provided under Section 9 of the Act and the Advisory Board heard the detenu on 21.3.2013 when the detenu submitted a representation to the Board. After considering the matter and hearing the detenu, the Advisory Board submitted its report under Section 10(1) of the Act with its opinion that there was sufficient cause for the detention of the detenu. On that basis, the Government passed order dated 5.4.2013 confirming the detention as provided in Section 10(4) of the Act. 4. In the meanwhile, on 2.4.2013, the detenu submitted a representation to the jail authorities and the jail authorities forwarded the representation to the Government under cover of their letter dated 2.4.2013 and the Government received the representation on 9.4.2013. That representation was considered and was rejected by the Government by its order dated 11.4.2013. It is in the aforesaid circumstances, the petitioner, who claims to be a friend of the detenu, has filed this writ petition seeking to challenge Ext. P1 and to set the detenu at liberty by issuance of a writ of Habeas Corpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was on 8.7.2011 and after investigation, this case was also charge sheeted for offences under Sections 323, 324, 294(b) and 506(ii) of IPC and the case is now pending before the Judicial First Class Magistrate's Court, Kollam as C.C. No. 738/2012. The third case is C.C. No. 216/2012 pending before the Judicial First Class Magistrate's Court, Kollam, which was registered as Crime No. 1289/2011. The occurrence in relation to this case was on 17.11.2011 and the offences alleged are under Sections 294(b), 341, 323 and 34 of IPC. The fourth case charge sheeted before the Judicial First Class Magistrate Court, Kollam is in relation to Crime No. 751/2012, where the occurrence was on 19.7.2012 and the offences alleged are under Sections 294(b) and 506(ii), 341 and 34 of IPC. 9. In addition to the aforesaid four cases, the detaining authority has also referred to the pendency of Crime Nos. 115/2012, 976/2012, 1210/2012, involving offences under IPC, and 1098/2010 (under Section 107 of the Cr.P.C.), in which also, the detenu is an accused. It is taking note of the facts in all these criminal cases the detaining authority declared the detenu a 'known rowdy' as defined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and order has been carefully defined in a Constitution Bench judgment of this court in Dr. Ram Manohar Lohia v. State of Bihar and Others (1966) 1 SCR 709. In this judgment, Hidayatullah, J. by giving various illustrations clearly defined the public order and law and order . Relevant portion of the judgment reads thus: (AIR pp. 758-59, paras 51-52), 51. ....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 riyal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized, because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another, but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and order and public order by giving illustrations. Relevant portion reads as under: 4. Every assault in a public place like a public road and terminating in the death of a victim is likely to cause horror and even panic and terror in those who are the spectators. But that does not mean that all of such incidents do necessarily cause disturbance or dislocation of the community life of the localities in which they are committed. There is nothing in the two incidents set out in the grounds in the present case to suggest that either of them was of that kind and gravity which would jeopardise the maintenance of public order. No doubt bombs were said to have been carried by those who are alleged to have committed the two acts stated in the grounds. Possibly that was done to terrify the respective victims and prevent them from offering resistance. But it is not alleged in the grounds that they were exploded to cause terror in the locality so that those living there would be prevented from following their usual avocations of life. The two incidents alleged against the petitioner, thus, pertained to specific individuals, and therefore, related to and fell within the area of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no imminent possibility of his being released by the court. The detenu's coming out on bail was merely ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. In absence of any such material on record, the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. 26. The learned counsel for the detenu also placed reliance on Ramesh Yadav v. District Magistrate, Etah and Others (1985) 4 SCC 232. In this case the court observed as under:- 6. The order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration. 28. In Commissioner of Police and Others v. C. Anita (Smt.) (2004) 7 SCC 467, this court again examined the issue of public order and law and order and observed thus: (SCC pp. 471-72, para. 7 7. ....The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression law and order is wider in scope inasmuch as contravention of law always affects order, public order has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of law and order and public order is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to distu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cality or in the words of Hidayatullah, J. disturb the even tempo of the life of the community of that specified locality. 11. Principles laid down in the aforesaid judgment shows that public order is distinct and different from law and order and the Apex Court has consciously observed that public order may well be paraphrased in the context of legislations such as the Act as public tranquility . Therefore, any act, which adversely affects the public tranquility of an area is an act affecting public order of the area. Insofar as this case is concerned, the facts narrated in Ext. P1 order itself would show that various crimes have been allegedly committed by the detenu, in public places and in day light and as a result, the people in the locality are terrorized and that because of these acts, tranquility in the area is affected. This certainly shows that the acts allegedly committed by the detenu, irrespective of its gravity, are those, which disturbed the even tempo of life of the community, which undoubtedly are acts prejudicial to the maintenance of the public order, the maintenance of which, is essential for the orderly life in the society. Therefore, we are unable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial threshold satisfaction that a person is a known goonda or a known rowdy must certainly be entertained by the detaining authority. To entertain that, the detenu need only satisfy the definition of goonda and known goonda or rowdy and known rowdy. The definitions of these expressions in 2(j) (inclusive latter part) and 2(o) as also 2(t) and 2(p) do not at all demand that the offences referred to therein must also be instances of organised crime or that they must threaten public order. Such a requirement cannot be read into the definition of 'rowdy' in S. 2(t) or known rowdy in 2(p) or even the definition of goonda in S. 2(j) (inclusive latter half) and known goonda in 2(o). Of course, we repeat that while considering the latter subjective satisfaction, it will certainly have to be considered whether the subjective satisfaction of the need to preventively detain the detenu is entertained on grounds/past conduct which are likely to threaten public order in future. For the aforesaid reasons, the first contention raised by the learned counsel for the petitioner is liable to be rejected and we do so. 13. The second contention urged by the learned counsel for the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r his detention illegal and unconstitutional. 15. The learned counsel for the petitioner then contended that Ext. P1 order of detention was not approved by the Government in time and that therefore, his continued detention was unconstitutional. The provision for approval of detention is contained in Section 3(3) of the Act, which reads thus: 3. Power to make orders for detaining Known Goondas and Known Rowdies- (1) xx xx xx (2) xx xx xx (3) When any order is made under this section by the authorised officer under subsection (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government. Reading of this Section shows that when an order of detention is made by the authorised officer under Section 3(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the detenu, within the 12 days specified. If that be so, since approval has already been accorded by the Government on 7.3.2013, what happened subsequent thereto, at best, is only the delay in communicating the order and that delay cannot have any impact on the legality of the approval already granted by the Government. From the files produced by the learned Government Pleader, we also found that even though Ext. P24 was received by the jail authorities only on 21.3.2013, a copy of Ext. P24 order was served on the detenu and he acknowledged the same by affixing his signature on 12.3.2013 itself. In such circumstances, we are not impressed by the argument of the learned counsel for the petitioner. 18. The learned counsel for the petitioner contended that since it was stated in Exts. P3 and P4 that if order of approval was not received within 12 days of detention, on the expiry of the 12th day, the detenu should be set at liberty, the detenu should not have been detained beyond the 12th day. In our view, this contention has no factual basis for the reason that the Government had accorded its approval within the 12 days period specified in Section 3(3) of the Act. Further, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary from the Government or from any other person and after hearing the detenu, if he so desires, prepare its report in the manner as provided therein as to whether or not there is sufficient cause for the detention of the person concerned. It shall thereupon submit its report to the Government within nine weeks from the date of detention. Sub Section 4 provides that in every case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and that in case where the Advisory Board has reported that there is in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and release the person forthwith. 20. A combined reading of Sections 7, 9 and 10 of the Act would therefore, show that the constitutional right of a person detained on the strength of an order for his preventive detention, under Article 22(5) is statutorily recognised in Section 7(2) of the Act. However, the legislature has imposed a reasonable restriction on suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ress upon us the nature of consideration that a representation made by the detenu in a case of preventive detention should receive. We have considered this contention of the learned counsel. We do agree that as held by the Apex Court that representation made by a detenu in a case of preventive detention should have a real and proper consideration although the order that is to be passed by the authority concerned need not be a speaking order. However, this contention of the learned counsel can be answered only with reference to the relevant averments in the counter affidavit and the order dated 11.4.13 passed by the Government. 24. The file containing order dated 11.4.13 was made available by the learned Government Pleader. It is revealed that the order was issued by the Principal Secretary, Home Department, which shows that the representation was considered by the Principal Secretary and that on examination he found that the cases in which the detenu is involved satisfied the requirements of Section 2(p)(iii) of the Act and on that basis, he was satisfied that the materials relied on qualified the detenu to be a 'known rowdy'. On verification of the records, he was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved on the detenu. In Ext. P1 order what is stated by the detaining authority is that though Section 107 proceedings have been initiated against the detenu on 18.7.2010 and are pending before Sub Divisional Magistrate, Kollam, there has not been any progress in the matter and it was therefore that he was satisfied that in spite of the above, the detenu should be detained under the Act. This therefore means that the detaining authority did not rely on the 107 Cr.P.C. proceedings and only if the detaining authority had relied on such proceedings, detaining authority would have been obliged to supply the documents in relation thereto to the detenu in compliance with the principles laid down by the Apex Court in the judgment referred to above. Further, if the document in relation to Crime No. 1098/10 was of any advantage to the detenu and if he wanted to rely on the same, it was for him to have made a request to the detaining authority or the Government to supply him those documents, which also was not done. Therefore, we are not prepared to accept the case of the petitioner on this count also. 29. The last contention raised by the learned counsel for the petitioner was that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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