P KANDASWAMY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Petitioner's son by name Subburu alias Subramani alias Subramaniyan, aged about 22 years, has been detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982). It is said that the petitioner's son assaulted one Nagarajan, resulting in his death on 13-11-1992, along with some other persons, in which case, a charge-sheet has been filed on 15-2-1993 and the case has been committed for Sessions trial. On 22-4-1993, it is said, he (petitioner's son) and three others, kidnapped, wrongfully confined and assaulted Bhaskar, Sampath and Kumar and attempted to murder Bhaskar. A police case is registered for the said offences against him and others. On 28-7-1993 he gets involved himself in yet another occurrence, which has been described as the ground case for detention by the respondents. At about 7 a.m. on that day, one Mohan and his brother Suresh were standing before their house and talking to one Shahul Hameed. At that time, the petitioner's son came with a pen knife and threatened them in filthy language saying in Tamil as follows : Vernacular Matter - Omitted. However, Mohan, Suresh and Shahul Hameed went inside the house due to fear. Petitioner's son chased them

(2.) A bail petition, it is said, had been moved on behalf of the petitioner's son, which has, however, been dismissed by the Sessions Judge. In the order, the detaining authority has however said : "As a detaining authority, I am aware that Thiru Subburu alias Subramani alias Subramaniyam is now lodged in Special Sub-Jail, Salem, as a demand prisoner and he would be proceeded under the normal law. However, I am satisfied that his activities warrant his detention under the Tamil Nadu Act 14/1982. The bail application dated 3-8-1993 by this Subburu alias Subramani alias Subramaniyam was dismissed by the Principal Sessions Judge, Salem on 5-8-93. There is imminent possibility that he may come out on bail by filing bail application in the higher court. If he comes out on bail he will indulge in further activities which will be prejudicial to the maintenance of public order. Further the recourse to normal criminal 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 there is a compelling necessity to prevent him from indulging in similar offences. It is, therefore, necessary to detain him in custody under Tamil Nadu Act 14/82, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

(3.) Learned counsel for the petitioner has drawn our attention to a decision of the Supreme Court in T. Devaki v. State of Tamil Nadu, 1990 Crl LJ 1140 : (AIR 1990 SC 1086), in which case, a person, who was charged of a solitary assault on one individual, was considered for detention under Section 3(1) of Act 14 of 1982 and the judgments of this Court in Rajendran alias Giri v. State of Tamil Nadu, 1991 LW (Crl) 582; S. Suresh babu v. State of Tamil nadu, 1991 LW (Crl) 463; Paul Pandi alias Erunakandan v. State of Tamil Nadu, 1992 LW (Crl) 339: (1992 Cri LJ 1394) and an unreported judgment in Kannan alias Kannapan alias Great Kannappan v. State of Tamil Nadu W.P. 16381 of 1990 judgment dated 27-2-1991 on the subject, to suggest and contend that 'public order' for the purpose of preventive detention law, must not always be quoted with every disturbance caused to the public at large, that there is some element of disturbance, as has been indicated in the pronouncements of the Court, caused to the public order by every violation of law even if such violation is directed against one or more individual but unless the violence is such that it would have created alarm of a kind, which affects the even-flow of life, it will not attract the 'public order' clause of the Act of a goonda for his detention under Tamil Nadu Act 14 of 1982. Learned Additional Public Prosecutor has, however, drawn our attention to the two judgments of the Supreme Court, one in the case of Victoria Fernandez v. Laimal Swama, AIR 1992 SC 687 : (1992 Cri LJ 702) and the other in the case of Harpreet Kaur v. State of Maharashtra, AIR 1992 SC 979 : (1992 Cri LJ 769) to suggest and contend that there may not be any departure from the distinction between the areas of 'public order' and 'law and order' in the various judgments of the Courts, including the Supreme Court, but it has to be applied on the facts of each case to examine whether the Court will find any fault with the subjective satisfaction of the detaining authority on its own estimation of the potentiality of the act of violence of the detenu to justify his detention of the reason that his activities would be prejudicial to the maintenance of public order. If we borrow the words from the judgment of the Supreme Court in the case of Victoria Fernandez, AIR 1992 SC 687 : (1992 Cri LJ 702), the distinction between 'law and order' and 'public order' has to be understood as follows: