State of T.N. & Anr Vs.
Kethiyan Perumal  Insc 628 (11 October 2004)
Arijit Pasayat & C.K.
Thakker [With Crl. A. No.702 Of 1999] Arijit Pasayat, J.
These two appeals involve identical issues. The impugned judgment in
Criminal Appeal No. 702 of 1999 has its foundation on the judgment impugned in
Criminal Appeal No. 701 of 1999. Therefore, the factual position involved in
Criminal Appeal No. 701 of 1999 is described.
The State of Tamil Nadu and District Magistrate & Collector, Vellore
District (hereinafter referred to as the 'detaining authority') call in
question legality of the judgment rendered by a Division Bench of the Madras
High Court quashing the order of detention dated 29.3.1988 passed by the
A Habeas Corpus Petition was filed by the wife of Kethiyan Perumal
(hereinafter described as "the detenu") who was detained under
Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Boot
leggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act,
1982 (in short the 'Act'). The High Court allowed the Habeas Corpus Petition
primarily on the ground that the Detaining Authority took into consideration
extraneous matters while recording the finding about unlawful activities of the
detenu or that it was highly dangerous to the public order. The High Court
distinguished the decision of this Court in Mrs. U. Vijayalakshmi v. State of Tamil
Nadu and Anr. (AIR 1994 SC 165) which was relied upon by the detaining
authority. Primary stand of the writ petitioner (present respondent) before the
High Court was that though reference was made to Forest Officer's report and
the same virtually provided the foundation of the detention, yet there was no
mention therein that activities of the detenu has been highly dangerous to
public order. The State resisted the petition on the stand that in an identical
matter reference was made to the said Forest Officer's report. This Court in
Vijayalakshmi's case (Supra) dealt with the matter in detail and upheld the
detention. Reliance was placed on Section 5A of the Act to contend that the
grounds are separable and even if one ground indicated in the order of
detention fails, on the residual grounds also a detention can be maintained.
The High Court found that though the decision in Mrs. U.
Vijayalakshmi's case (supra) was with reference to the same report of the
Forest Officer, yet points which were presently urged were not taken before the
High Court in the earlier case.
Stand of the appellants is that the High Court accepted the prayer of the
detenu on the ground that the Forest Officer's report did not specifically
refer to the alleged unlawful activities aspect or that the impugned acts were
highly dangerous to public order. It is submitted that the conclusion is factually
incorrect. It was pointed out that there was a confession of respondent No. 1
where there was clear admission about the unlawful activities. In any event the
effect of Section 5A of the Act has not been kept in view by the High Court.
There is no appearance on behalf of the respondent in spite of service of
The High Court did not take note of the fact that the factual distinction
sought to be brought about by the detenu is not supportable. In both Mrs. U.
Vijayalakshmi's case (supra) and the present case the Forest Officer's report
was common. Effect of the confessional statement and the background facts have
not been taken note of.
Before we go to the legal aspects involved it would be necessary to sort out
confusion entertained by the High Court. Interference was done with the order
of detention primarily on the ground that the Forest officer's report did not
anywhere indicate about the effect on public order aspect. In fact, it clearly
mentions that activities of the detenu prejudicially affected public order. It
was specifically stated as follows:
"The human life is dependent on water, clean air and healthy
agriculture for providing food.
Destruction of sandalwood trees in Vellore District will seriously affect
the availability of these essential things and cause threat to public life at
large due to destruction of Natural Forest Eco- system.
Hence I feel that we should stop by all means the indiscriminate felling of
trees in Vellore District in the interest of public because the ecological
system is affected in a manner prejudicial to the public order." The
factual mistake, committed by the High Court by observing that there was no
mention regarding activities being highly dangerous to public order, is not
sustainable, in view of the details indicated and clear mention. It was
categorically stated that the destruction of ecological system would be highly
dangerous to public order. In any event the effect of Section 5A of the Act
cannot be lost sight of. The High Court was clearly in error in holding that
decision in Mrs. U.
Vijayalakshmi's case (supra) was distinguishable. The decision in Mrs.
U. Vijayalakshmi's case (supra) clearly applies to the facts of the case. It
is to be noted that in D. Vijayalakshmi case (supra) this court categorically
held that in view of Section 5A of the Act an extraneous and irrelevant ground
does not affect validity of the detention order as Section 5A was introduced
precisely to take care of such a situation. This Court, inter alia, held as
"The second contention is based on the facts stated in paragraph 4 of
the grounds of detention. It is manifest from the facts stated in paragraph 4
of the grounds of detention that the emphasis is twofold: (1) that to profit
from the high price fetched by sandal wood in the open market, illicit felling
of sandal wood trees is on the increase, thereby causing widespread danger to
the ecological system and loss of revenue to Government and (2) that the huge
money falling into the hands of tribals makes them susceptible to drinking and
gambling, thereby converting the poor and innocent tribals into anti-socials.
So far as the first aspect is concerned we find from the grounds of
detention that the detenu was involved in two similar cases in the past and the
impugned order of detention was passed after he was found to have indulged in
similar activity on 1st May, 1992. As is clear from the explanation to Section
2(a)extracted earlier, widespread danger to the ecological system must be
deemed to affect public order adversely within the meaning of that expression
in Section 2(a) of the Act. Counsel submitted that although it is asserted in
paragraph 4 of the grounds of detention that the illicit cutting and removal of
sandal wood trees from the reserved forest area causes widespread danger to the
ecological system and disturbs the delicate equilibrium thereof, there is
nothing on record to show that this assertion is well founded. We are afraid we
cannot accept this submission made by the learned counsel for the detenu. It is
manifest from paragraph 4 of the grounds of detention that this view was
founded on the opinion of the District Forest Officer, Vellore. Once it is
found that the ground of detention is one recognized by sub-section (1) of
Section 3 of the Act, it is not for this Court to probe into the correctness of
the alleged facts since this Court has a limited role in the matter of
examining the validity of the detention order.
Counsel for the detenu next contended that the second aspect of paragraph 4
shows that extraneous considerations weighed with the detaining authority in
passing the impugned detention order. He submitted that it is too remote to
think that tribals resort to drinking, gambling and turn anti-socials merely
because some extra money falls into their hands. Assuming without deciding that
this contention is well founded, we are of the opinion that Section 5A of the
Act takes care of it. Even if we were to hold that this ground is extraneous or
irrelevant, that would not affect the validity of the detention order as
Section 5A was introduced precisely to take care of such a situation. We,
therefore, do not see any merit in the second contention also." The order
of the High Court is accordingly set aside.
The impugned judgment in Criminal Appeal No. 702 of 1999 involves identical
On both aspects factual as well as legal, in both the appeals, the High
Court's judgments are not sustainable and are, therefore, set aside.
The residual question is whether it would be appropriate to direct the
respondent in each case to surrender for serving remaining period of detention
in view of passage of time. As was noticed in Sunil Fulchand Shah v. Union of
India and Ors. (2000 (3) SCC 409), it is for the appropriate State to consider
whether the impact of the acts, which led to the order of detention still
survives and whether it would be desirable to send back the detenu for serving
remainder period of detention. Necessary order in this regard shall be passed
within two months by the appellant State. Passage of time in all cases cannot
be a ground not to send the detenu to serve remainder of the period of
detention. It all depends on the facts of the act and the continuance or
otherwise of the effect of the objectionable acts.
The State shall consider whether there still exists a proximate temporal
nexus between the period of detention indicated in the order by which the
detenu was required to be detained and the date when the detenu is required to
be detained pursuant to the appellate order.
Appeals are allowed.