REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.  417   OF 2012 (Arising out of S.L.P. (Crl.) No. 9716 of 2011)

Subramanian               .... Appellant(s)

Versus

State of Tamil Nadu & Anr.              .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) This  appeal  is  directed against  the final  judgment  and  

order  dated  09.12.2011  passed  by  the  High  Court  of  

Judicature at Madras in Habeas Corpus Petition No. 937 of  

2011 whereby the High Court dismissed the petition filed by  

the appellant herein.

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3) Brief facts:

a) The appellant is the father of the Detenu.  The Detenu  

has a dispute regarding their land with one Kaliyamoorty for  

which a Civil Suit being O.S. No. 452 of 2008 is pending before  

the Subordinate Judge at Trichy.  The said Kaliyamoorty filed  

a complaint with police on 18.07.2011 complaining that the  

detenu armed with  aruval (sickle)  along with his  associates  

apart from threatening the de facto complainant Kaliyamoorty  

caused damage to the STD booth by damaging the glasses and  

chairs.  Accordingly, an FIR being Crime No. 361 of 2011 was  

registered  by  the  K.K.  Nagar  Police  Station,  Trichy.   The  

complainant – Kaliyamoorthy had already lodged a complaint  

before the City Crime Branch, Trichy, on 07.02.2010, which  

was  registered  by  the  Police  as  Case  Crime  No.  3  of  2010  

which is still pending.   

b) On  21.07.2011,  respondent  No.2  -  Commissioner  of  

Police  passed  a  detention  order  against  the  detenu  under  

Section 3 of the Tamil Nadu Prevention of Dangerous Activities  

of  Bootleggers,  Drug  Offenders,  Forest  Offenders,  Goondas,  

Immoral  Traffic  Offenders,  Sand  Offenders,  Slum  Grabbers  

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and Video Pirates  Act,  1982 (14 of  1982)  while  holding the  

detenu to be a ‘goonda’ noticing his involvement in the case of  

18.07.2011 as well as three past cases of the years 2008 and  

2010.    

c) Against the said order of detention, the appellant sent a  

representation to the Detaining Authority on 25.07.2011 for  

revoking the detention order.  He also made a representation  

to  the  State  Government,  which is  the  approving  authority,  

against the said order.  After receiving the representation of  

the  appellant  on  28.07.2011,  the  Detaining  Authority  

forwarded  the  same  to  the  Government  recommending  

rejection of the same.  On 12.08.2011, the State Government  

after due consideration rejected the said representation.   

d) Aggrieved by the said decision of the State Government,  

the appellant herein filed Habeas Corpus Petition before the  

High Court.  The High Court, by its impugned judgment dated  

09.12.2011, dismissed the said petition.

e) Challenging  the  said  judgment  of  the  High  Court,  the  

appellant has filed this appeal by way of special leave before  

this Court.

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4) Heard  Mr.  A.  Sharan,  learned  senior  counsel  for  the  

appellant  and  Mr.  Guru  Krishnakumar,  learned  Additional  

Advocate General for the respondents.

5) Mr. A. Sharan, learned senior counsel for the appellant  

after taking us through the detention order and the impugned  

order of the High Court confirming the same submitted that  

from the  materials  placed,  the  Detaining  Authority  has  not  

made out a case for preventive detention.  He also submitted  

that even if the stand of the Detaining Authority is acceptable,  

the alleged action of the detenu, at the most, is only a law and  

order problem and not of public order as arrived at by the said  

Authority for invoking the T.N.  Act 14 of  1982.  He further  

submitted that the reference made by the Detaining Authority  

in all  the three places in the grounds of detention that the  

accused obtained regular bail and not anticipatory bail shows  

non-application of mind by the Authority.  He also submitted  

that failure on the part of the Detaining Authority to consider  

the  representation  of  the  detenu  vitiates  the  entire  order.  

Finally, he submitted that the cases relied on by the Detaining  

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Authority  are stale and there is no ground for invoking the  

provisions of T.N. Act 14 of 1982.   

6) On  the  other  hand,  Mr.  Guru  Krishnakumar,  learned  

Additional Advocate General for the State of Tamil Nadu, by  

taking us through the grounds of detention, reasoning of the  

High Court in confirming the same and the materials placed in  

the form of counter affidavit before this Court submitted that  

none of the arguments advanced by the senior counsel for the  

detenu is acceptable and there is no ground for interference by  

this Court.   

7) Before considering the rival submissions, it is relevant to  

refer the definition of ‘Goonda’ as described in T.N. Act 14 of  

1982 which reads thus:

2(f) “goonda” means a person, who either by himself or as a  member  of  or  leader  of  a  gang,  habitually  commits,  or  attempts  to  commit  or  abets  the  commission  of  offences,  punishable  under  section  153  or  section  153-A  under  Chapter  VIII  or  under  Chapter  XVI  or  Chapter  XVII  or  Chapter  XXII  of  the Indian Penal  Code,  1860 (Central  Act  XLV of 1860) or punishable under section 3 or section 4 or  section 5 of the Tamil Nadu Property (Prevention of Damage  and Loss) Act, 1992 (Tamil Nadu Act 59 of 1992).

The said Act was enacted by the State in the year 1982 and  

subsequently amended expanding the scope of the Act in order  

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to prevent certain persons from dangerous activities which are  

prejudicial to the maintenance of public order.  Since there is  

no dispute as to the power and execution, there is no need to  

refer other provisions.    

8) We have carefully perused all the relevant materials and  

considered the rival submissions.

9) With regard to the first submission that no case is made  

out for preventive detention by invoking the provisions of T.N.  

Act 14 of 1982, though the ground case incident arose out of a  

land  dispute  between  the  detenu  and  the  de  facto  

complainant, however, the argument that it is only a law and  

order  problem  and  that  public  order  was  not  disturbed  is  

contrary to the facts and equally untenable.  As rightly pointed  

out by Mr. Guru Krishnakumar, the Detaining Authority, on  

consideration of materials placed has found that the accused  

caused  damage  to  both  public  and  private  properties,  

threatened the public  and also  created a situation of  panic  

among the  public.   In  this  regard,  it  is  useful  to  refer  the  

materials narrated in the grounds of detention which are as  

follows:

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“On 18.07.2011, at about 10:00 hours, while Kaliyamoorthy  was  available  in  the  STD  booth,  Kajamalai  Kadaiveethi,  Kajamalai, Tiruchirapalli city, the accused Kajamalai Viji @  Vijay  armed  with  aruval,  his  associates  Manikandan,  Uthayan, Sathiya, Sivakumar armed with Kattas came there.  The accused Kajamalai Viji @ Vijay abused Kaliyamoorthy in  a filthy language, threatened to murder him with aruval by  saying  “Have  you  become  such  a  big  person  to  give  complaints against me.  You bastard, try giving a complaint, I   will chop you down right here.”

His associates threatened him with their respective kattas.

Thereafter,  the  accused  Kajamalai  Viji  @  Vijay  caused  damage to the glasses, chair and stool available in the shop.  While  Kaliyamoorthy  questioned  them,  the  accused  Kajamalai  Viji  @  Vijay  slapped  him  on  the  face.  Kaliyamoorthy raised alarm for rescue.  The general public  came  there  and  they  were  threatened  by  the  accused  Kajamalai  Viji  @  Vijay  and  his  associates  by  saying  “if   anyone turns up as witness,  I  will  kill  them.”  The nearby  shop-keepers closed their  shops out  of  fear.   Auto drivers  took  their  autos  from  the  stand  and  left  the  place.  The  situation created panic among the public.  On the complaint  of  Kaliyamoorthy,  a  case  in  K.K.  Nagar  P.S.  Cr.  No.  361/2011 u/s 147, 148, 447, 448, 427, 294(b), 323, 506(ii)  IPC and 3 P.P.D. Act was registered.”

10) From the above materials, the Detaining Authority was  

satisfied that the detenu is habitually committing crimes and  

also  acting  in  a  manner  prejudicial  to  the  maintenance  of  

public  order  and as such he  is  a  ‘goonda’  as contemplated  

under  Section  2(f)  of  the  T.N.  Act  14  of  1982.   The  order  

further shows that the Detaining Authority found that there is  

a compelling necessity to detain him in order to prevent him  

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from  indulging  in  such  activities  in  future  which  are  

prejudicial to the maintenance of public order.  After narrating  

the details of the ground case and after adverting to earlier  

instances  commencing  from  the  years  2008  and  2010,  the  

Detaining Authority has concluded as under:-

“Hence,  I  am satisfied  that  the  accused  Kajamalai  Viji  @  Vijay is habitually committing crimes and also acting in a  manner prejudicial to the maintenance of Public order and  as such he is a Goonda as contemplated under Section 2(f)  of the Tamil Nadu Act No. 14 of 1982.  By committing the  above described grave crime in a busy locality cum business  area, he has created a feeling of insecurity in the minds of  the people of the area in which the occurrence took place  and  thereby  acted  in  a  manner  prejudicial  to  the  maintenance of public order.”

11) It is well settled that the court does not interfere with the  

subjective  satisfaction  reached  by  the  Detaining  Authority  

except  in  exceptional  and  extremely  limited  grounds.   The  

court  cannot  substitute  its  own  opinion  for  that  of  the  

Detaining  Authority  when  the  grounds  of  detention  are  

precise, pertinent, proximate and relevant, that sufficiency of  

grounds is not for the Court but for the Detaining Authority  

for the formation of subjective satisfaction that the detention  

of a person with a view to preventing him from acting in any  

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manner prejudicial to public order is required and that such  

satisfaction is subjective and not objective.  The object of the  

law of preventive detention is not punitive but only preventive  

and  further  that  the  action  of  the  executive  in  detaining  a  

person  being  only  precautionary,  normally,  the  matter  has  

necessarily  to  be  left  to  the  discretion  of  the  executive  

authority.  It is not practicable to lay down objective rules of  

conduct  in  an  exhaustive  manner.   The  satisfaction  of  the  

Detaining Authority, therefore, is considered to be of primary  

importance  with  certain  latitude  in  the  exercise  of  its  

discretion.   

12) The next contention on behalf of the detenu, assailing the  

detention order on the plea that there is a difference between  

‘law and order’  and ‘public  order’  cannot  also  be sustained  

since this Court in a series of decisions recognized that public  

order is the even tempo of life of the community taking the  

country as a whole or even a specified locality.         [Vide  

Pushpa Devi M. Jatia vs. M.L. Wadhawan & Ors., 1987 (3)  

SCC 367 paras 11 & 14;  Ram Manohar Lohia vs.  State of  

Bihar (1966) 1 SCR 709; Union of India vs. Arvind Shergill  

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& Anr. 2000 (7) SCC 601 paras 4 & 6; Sunil Fulchand Shah  

vs.  Union  of  India  &  Ors. 2000  (3)  SCC  409  para  28  

(Constitution Bench);  Commissioner of Police & Ors. vs.  C.  

Anita (Smt), 2004 (7) SCC 467 paras 5, 7 & 13].

13) We have already extracted the discussion, analysis and  

the ultimate decision of the Detaining Authority with reference  

to  the  ground case  dated  18.07.2011.   It  is  clear  that  the  

detenu, armed with ‘aruval’, along with his associates, armed  

with ‘katta’ came to the place of the complainant.  The detenu  

abused the complainant in filthy language and threatened to  

murder him.  His associates also threatened him.  The detenu  

not only threatened the complainant with weapon like ‘aruval’  

but also damaged the properties available in the shop.  When  

the complainant questioned the detenu and his associates, the  

detenu slapped him on his face.  When the complainant raised  

an alarm for rescue, on the arrival of general public in and  

around,  they  were  also  threatened  by  the  detenu  and  his  

associates that they will  kill  them.  It is also seen from the  

grounds of detention that because of the threat by the detenu  

and  his  associates  by  showing  weapons,  the  nearby  shop  

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keepers closed their shops out of fear and auto drivers took  

their autos from their stand and left the place.  According to  

the  Detaining  Authority,  the  above  scene  created  a  panic  

among the public.  In such circumstances, the scene created  

by the detenu and his associates cannot be termed as only law  

and order problem but it is public order as assessed by the  

Detaining Authority who is supposed to safeguard and protect  

the interest of public.  Accordingly, we reject the contention  

raised by learned senior counsel for the appellant.   

14) The next contention relates to non-application of mind by  

the Detaining Authority in respect of the bail obtained by the  

detenu.  Learned AAG, by drawing our attention to the factual  

details narrated in the grounds of detention and in the counter  

affidavit submitted that such argument is factually incorrect.  

A contention has been raised that the accused had obtained  

regular  bail  in  all  the  criminal  cases  referred  to  in  the  

detention order and not anticipatory bail as noted therein, and  

therefore, there is non-application of the mind to the relevant  

material by the Detaining Authority.  As rightly pointed out by  

learned  counsel  for  the  State,  the  said  claim  is  factually  

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incorrect.   It  is  also  brought  to  our  notice  that  the  said  

submission  was  made  only  now  before  this  Court  as  an  

afterthought.   A perusal  of  the impugned order of  the High  

Court clearly shows that the only contention before the High  

Court was that the detenu got regular bail in Crime No. 727 of  

2010 but the Detaining Authority has wrongly mentioned the  

same as anticipatory bail.   Further,  no specific  ground has  

been raised in the SLP.  The only ground is that the copy of  

the anticipatory bail order in Crime No. 727 of 2010 was not  

given to the detenu which is also contrary to the record since  

it is specifically stated so in the detention order and averred in  

the counter affidavit that all the materials were duly furnished  

to  the  detenu.   There  is  no  denial  of  the  same  by  filing  

rejoinder.   Further,  it  is  pointed  out  that  the  detenu  had  

obtained  anticipatory  bail  in  the  cases  referred  to  in  the  

detention  order  including  in  Crime  No.  727  of  2010,  

accordingly, the said contention is also liable to be rejected.   

15) It is also relevant to refer the finding of the High Court  

that the detenu being granted bail or anticipatory bail does not  

matter as far as the fact remains that he was not on remand  

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in those cases and there was no prejudice to the detenu by  

reason of the reference made in the detention order.  The High  

Court has rightly observed that the bail petition in respect of  

the  ground  case  was  pending  before  the  Sessions  Judge,  

Tiruchirapalli and he was very likely to be released on bail and  

if he comes out on bail, he would indulge in future activities  

which will be prejudicial to the maintenance of public order.

16) Learned  senior  counsel  for  the  detenu  next  submitted  

that there was non-consideration of the representation of the  

detenu by  the  Detaining Authority  which vitiates  the  entire  

detention  order.   The  representation  was  received  only  on  

28.07.2011 by the Detaining Authority.  It is pointed out that  

within a day, i.e., on 29.07.2011 itself, the detention order was  

approved  by  the  Government.   In  such  circumstances,  the  

Detaining  Authority  could  not  consider  the  representation.  

Further once the Government affirms the detention order, the  

Detaining  Authority  had  become  functus  officio. [Vide  Sri  

Anand  Hanumathsa  Katare vs.  Additional  District  

Magistrate & Ors. 2006 (10) SCC 725 paras 9 & 13].  Even  

otherwise, as rightly pointed out by the learned counsel for the  

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State,  this  argument  is  solely  baseless  since  the  detenu  

simultaneously made a representation to the Government and  

the Government had fully considered his representation and  

rejected the same on 12.08.2011.  Further, the Advisory Board  

has also  rejected the  representation of  the  detenu by order  

dated 23.08.2011 thereby confirming the detention.  This is  

also  clear  from  the  information  furnished  in  the  counter  

affidavit  filed  on  behalf  of  the  respondent-State  before  this  

Court.   

17) Finally,  learned  senior  counsel  for  the  appellant  

submitted that the cases relied on by the Detaining Authority  

are stale.  In order to answer this contention, we once again  

perused  the  entire  grounds  of  detention.   The  ground case  

relates to the occurrence dated 18.07.2011 and prior to that,  

the detenu was involved in two cases in the year 2010 and one  

case in the year 2008. The above details clearly show that the  

detenu was a habitual offender and as such instances shown  

are not stale as argued by the learned senior counsel for the  

appellant.  These aspects have been taken note of by the High  

Court, in fact, the High Court has found that the detenu had  

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indulged in one case in the year 2008 and two cases in the  

year 2010 and the ground case in 2011.  The particulars also  

show that in the year 2010, the detenu had indulged in two  

cases within a span of 6 months and again had indulged in  

the ground case in the year 2011, therefore, incident nos. 2  

and 3 cannot be said to be stale and, in such circumstance,  

the conclusion of the Detaining Authority that the detenu was  

a habitual offender cannot be considered to be based on stale  

instances.   

18) The incidents have been highlighted  in the  grounds of  

detention coupled with the definite indication as to the impact  

thereof  which have  been precisely  stated  in  the  grounds  of  

detention mentioned above.  All the incidents mentioned in the  

grounds  of  detention  clearly  substantiate  the  subjective  

satisfaction arrived at by the Detaining Authority as to how  

the acts of the detenu were prejudicial to the maintenance of  

public order.  All these aspects have been considered by the  

High Court which rightly affirmed the detention order.

19) In view of the above conclusion, while there is no quarrel  

as to the proposition of law in the decisions relied on by the  

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learned senior counsel for the detenu, namely, Commissioner  

of  Police  (supra),  Union  of  India vs.  Paul  Manickam &  

Anr., (2003) 8 SCC 342, M. Ahamedkutty vs. Union of India  

and Another, (1990) 2 SCC 1, the same are inapplicable as  

being distinguished, more particularly, in view of the factual  

details  stated  in  the  impugned detention  order,  we  are  not  

referring to those decisions in detail.   

20) In the light  of  the above discussion,  we are  unable  to  

accept  any  of  the  submissions  made  on  behalf  of  the  

appellant, on the other hand, we are in entire agreement with  

the conclusion arrived at by the High Court, consequently, the  

appeal fails and the same is dismissed.      

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (J. CHELAMESWAR)                                   

NEW DELHI; FEBRUARY 21, 2012.

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