TMI Blog1990 (3) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the petition on 10.11.1989 and issued directions for the release of the detenu forthwith. We are now giving the reasons for our Order dated 10.11.1989. 3. The detenu R. Thamaraikani is a member of the All India Anna Dravida Munnetra Kazhagam Party, briefly described as AIDMK. He has been an active social and political worker. He was elected Member of the Tamil Nadu Legislative Assembly from Srivilliputhur Constituency in the General Elections held in 1977, 1980 and 1984. In the General Elections held in January 1989 to the Tamil Nadu Legislative Assembly, he was defeated by the Dravida Munnetra Kazhagam Party candidate. He continues to be Joint Secretary of the AIDMK Party for Kamrajar District in Tamil Nadu and he has been taking active part in social and political activities in the District of Kamrajar. The petitioner has stated that there has been personal and political animosity between the detenu and Thiru Durai Murugan, Minister for Public Works and Highways in the present DMK Government. The District Magistrate issued the impugned order for the detention of her husband at the behest of Thiru Durai Murugan, the aforesaid Minister, respondent No. 3. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate and Collector Kamarajar, respondent No. 2, issued the impugned detention order after 17 days of the aforesaid incident under Section 3(1) of the Act, as he was satisfied that it was necessary to detain the detenu under the Act with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Pursuant to the aforesaid order of the District Magistrate the detenu was kept in detention. 5. Mr. R.K. Garg learned Counsel for the petitioner assailed the validity of the detention order on two grounds. Firstly, he urged that the order of detention was illegal since it did not specify the period of detention. Secondly, the sole ground of detention has no relevance to the maintenance of 'public order' as the facts set out in the grounds do not make out any case, of violation of public order, at best, it may be a case of law and order only. 6. This petition was heard by a Division Bench consisting of two learned Judges of this Court. After hearing counsel for the parties at length the learned Judges referred the matter to a three Judges' Bench, in view of the conflict of decisions of this Court in Commissioner of Police and Anr. v. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 3(1) confers power on the State Government to detain a bootlegger or drug-offender, or forest-offender or goonda or an offender in immoral traffic or a slum grabber with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Section 3(2) empowers the State Government to delegate its power as conferred on it under Sub-section (1) to District Magistrate or a Commissioner of Police, if it is satisfied that the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of the District Magistrate or the Commissioner of Police, make it necessary to delegate the power to them. It further provides that the order of delegation shall be in writing and it shall also specify the period during which the District Magistrate or the Commissioner of Police, are authorised to exercise the powers of the State Government under Sub-section (1) of Section 3. Proviso to Sub-section (2) lays down that the delegation should not be for an unlimited period, instead it should not be for a period of more than three months. If the State Government is satisfied that it is necessary to extend the period of delegation it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e maximum period for which a person can be detained in pursuance of any detention order made and confirmed under the Act. According to this provision the maximum period of detention shall be twelve months from the date of detention. The State Government has, however, power to revoke detention order at any time, it may think proper. 10. Provisions of the aforesaid Sections are inbuilt safeguards against the delays that may be caused in considering the representation. If the time frame, as prescribed in the aforesaid provisions is not adhered, the detention order is liable to be struck down and the detenu is entitled to freedom. Once the order of detention is confirmed by the State Government, maximum period for which a detenu shall be detained can not exceed 12 months from the date of detention. The Act nowhere requires the detaining authority to specify the period for which the detenu is required to be detained. The expression the State Government are satisfied that it is necessary so to do, they may, by order in writing direct that during such period as may be specified in the order occurring in Sub-section (2) of Section 3 relates to the period for which the order of deleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is an initial period of detention which can extend upto three months and that can be extended for periods of three months at a time. It was open to the detaining authority to detain the detenu even for a period of lesser duration than three months. That necessitated the period of detention to be specified and unless that was indicated in the order, the order would also be vitiated. In scores of decisions this Court has been emphasising the necessity of strict compliance with the requirements of the preventive detention law; yet authorities on whom the power is conferred have not been complying with the requirements and even if there be merit to support the order of detention, the procedural defects lead to quashing thereof as a result of which the purpose of the Act if frustrated and the suffering in the community does not abate. With great respect we do not agree with the view expressed by the learned Judges. 12. Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act, 1981 is identical in terms to Section 3 of the Tamil Nadu Act. Section 3 of Maharashtra Act does not require the State Government, District Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hojraj Chelani v. State of Maharashtra, 1983 CriLJ 342 while considering the validity of the detention order made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 this Court rejected similar submission made on behalf of the detenu that order of detention was vitiated as the Government had failed to mention the period of detention while confirming the order of detention. The Court held that the COFEPOSA Act did not require the detaining authority to mention the period of detention in the order of detention. When no period is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act. 14. In A.K. Roy v. Union of India and Ors. 1982 CriLJ 340 a Constitution Bench of this Court considered the validity of the National Security Act (65 of 1980), Chandrachud, CJ (as he then was) speaking for the Bench rejected the arguments made on behalf of the petitioner that the absence of provision requiring the detaining authority to provide for maximum period of detention was illegal. The learned CJ, observed: There is no substance in this grievance because, any law of preventive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all circumstances extended to the maximum period of 12 months as laid down in Section 13 of the Act. 15. It is thus clear that the view taken in Gurbux Biryani's case on the interpretation of Section 3 of the Maharashtra Act is incorrect. This Court has while considering the question of the validity of the detention order made under different Acts, consistently taken the view that it is not necessary for the detaining authority or the State Government to specify the period of detention in the order. In the absence of any period being specified in the order the detenu is required to be under detention for the maximum period prescribed under the Act, but it is always open to the State Government to modify or revoke the order even before the completion of the maximum period of detention. We are, therefore, of the opinion that the impugned order of detention is not rendered illegal on account of the detaining authority's failure to specify period of detention in the order. 16. Mr. R.K. Garg then urged that the sole ground on which the detention order is founded does not relate to maintenance of public order, and it exhibits non-application of mind by the detaining aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.30 p.m. while the proceedings of the Seminar were on, suddenly there was a commotion in front of the dias. Thiru Murali, Sub-Inspector of Police, Vembakottai alongwith posse of men who were on bandobust duty there, rushed up Thiru R. Thamaraikani inducing his henchmen saying Finish Durai Murgan's chapter today . The same time he (Thamarai-kani) also threw a dagger aimed at Hon'ble Minister Thin. Durai Murugan shouting Finish Durai Murgans Chapter today . But the dagger missed the target and fell down on the stage. At once Thiru R. Thamaraikani took out a bottle containing petrol and a match box out of a hand bag which he carried in his hand. Instantly Thiru Murali, Sub-Inspector of Police, Vembakottai and the P.C. 168 Murugesan punched and caught hold of Thiru R. Thamaraikani. The former seized the bottle and the match box. At the instigation of Thiru R. Thamaraikani, his henchmen viz. Thiru Valargal Kenna, son of Thangaraj Nader of Kammapatti, Nareeswaran, son of Smaraj Nadar of Kammapatti, Kali-pandian, son of Krishna son thevar of Mall and Nagarajan, on of Permissive Thevar of Mange Seri who accompanied him also attempted to attack the Hon'ble Minister for P.W.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd dangerous activities on 29.7.89 are prejudicial to the maintenance of public order and have affected the even tempo of life of the community. (5) I am aware that Thiru R. Thamaraikani is now on bail with condition to stay at Madurai since 3.8.89. I am satisfied that his unlawful activities warrant his detention under the Tamil Nadu Act No. 14 of 1982. (6) I am satisfied that on the materials mentioned above, if Thiru R. Thamaraikani is left to remain at large, he will indulge in further activities prejudicial to the maintenance of public order and further recourse to normal law would not have the desired effect of effectively preventing him from indulging in activities prejudicial to the maintenance of public order and therefore I consider that it is necessary to detain him in custody with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. 17. In substance the ground of detention states that while a Seminar was going on the detenu incited his men saying Finish Durai Murgan's Chapter today and after saying that he threw a dagger aiming at Thiru Durai Murgan, Minister but the dagger missed the target and fell dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these cases it was emphasised that an act disturbing public order is directed against individuals which does not disturb the society to the extent of causing a general disturbance of public peace and tranquillity. It is the degree of disturbance and its effect upon the life of the community in the locality which determines the nature and character of breach of public order. In Arun Ghosh v. State of West Bengal 1970 CriLJ 1136 the Court held that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society. This view was reiterated in Nagendra Nath Mondal v. State of West Bengal, 1972 CriLJ 482; Sudhir Kumar Sana v. Commissioner of Police, Calcutta, 1970 CriLJ 843; S.K. Kedar v. State of West Bengal, [1973] 1 SCR 488; Kanu Biswas v. State of West Bengal, [1972] G 3 SCC 831; Kishori Mohan v. State of West Bengal AIR 1972 SC 1749 and Amiya Kumar Karmakar v. State of West Bengal AIR 1972 SC 2259. 19. In the instant case the detenu was placed under detention on the sole incident which took place on 29.7.89 and in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peace and tranquillity. In the absence of such material it is not possible to hold that the incident at the seminar was prejudicial to the maintenance of public order. In Manu Bhusan Roy Prodhan v. State of West Bengal and Ors., 1974 CriLJ 401 this Court held that a solitary assault on one individual, which may well be equated with an ordinary murder which is not an uncommon occurrence, can hardly be said to disturb public peace and its impact on the society as a whole cannot be considered to be so extensive, widespread and forceful as to disturb the normal life of the community, thereby shaking the balanced tempo of the orderly life of the general public. The Court held that the detention order which had been made for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order, was not sustainable in law. On a careful consideration of the matter in all its aspects and having regard to the circumstances in which the alleged incident took place on 29.7.89, we are of the opinion that the solitary incident as alleged in the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
