R. Kalavathi
Vs. The State of Tamil Nadu & Ors [2006] Insc 356 (3 July 2006)
Arijit
Pasayat & C.K. Thakker
(Arising
out of S.L.P .(Crl.) No.1711/2006) ARIJIT PASAYAT, J.
Leave
granted.
Challenge
in this appeal is to the judgment rendered by a Division Bench of the Madras
High Court dismissing the Habeas Corpus Petition filed by the appellant seeking
release of Rathina Raj @ Rathnavel Pandian (hereinafter referred to as the 'detenu'),
who was detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous
Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (in short the
'Act') as a "Goonda". The accusation against him was to the effect
that he is habitually committing crime and that he had also acted in a manner
prejudicial to the maintenance of public order and as such he is a "Goonda"
as defined under Section 2(f) of the Act.
The
order of detention was passed in respect of Rathina Raj, which was approved by
the State Government. The detention order was challenged by filing a Habeas
Corpus petition before the Madras High Court.
Before
the High Court primarily the following grounds were urged:
-
There is
discrepancy in the case numbers and the detaining authority was not supplied
with material documents;
-
The translated
copy supplied to the detenu in Tamil language was different from what was
supplied in the English language and there were several defects. That being so,
the detenu was not in a position to make an effective representation;
-
Relevant and
material documents were not placed before the detaining authority and were also
not supplied to the detenu and as such he was prevented from making an
effective representation;
-
Sufficient
material was not placed before the detaining authority to pass the order of
detention which was passed mechanically.
The
High Court noticed that there were some differences between the English version
and the Tamil version. But those were considered to be too trivial to affect
the order of detention. The other grounds were also not accepted.
In
support of the appeal, Mr. Jayant Bhushan learned senior counsel submitted that
at least two documents clearly show that the records were manipulated. Additionally,
for being labelled as a Goonda under the Act, the definition of '"Goonda"
under Section 2(f) of the Act is relevant. The grounds of detention referred to
only one incident and there is no material to show that the detenu was
habitually committing crime.
In
support of the order of detention and the order of the High Court, learned
counsel for the State submitted that it is fairly well settled that it is the
impact of an act and not the number of acts which determine whether the act can
be relatable to public order or not. In the instant case, the scenario as
described in the grounds of detention clearly shows that the acts committed by
the detenu were of such intensity that even tempo of life was affected and
public tranquility was disturbed. Therefore, according to him, the detenu has
rightly been detained.
Though
reference was made by learned counsel for the appellant to several documents to
contend that the records were manipulated, we do not consider it necessary to
go into that aspect, because in our considered view the order of detention is
liable to be quashed on the other ground as submitted by learned counsel for
the appellant i.e. absence of materials to show that the detenu was habitually
committing offences.
Section
2(f) of the Act reads as follows:
"xx
xx xx xx (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 offence, punishable under Chapter XVI or Chapter XVII
or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860)." (underlined
for emphasis) A bare reading of the provision makes the position clear that in
order to attract action in terms of Section 3(1) of the Act, the detenu must be
one who is a "Goonda" as defined under Section 2(f) of the Act. Though
in other preventive detention laws, even a single act which has the propensity
of affecting even tempo of life and public tranquility would be sufficient for
detention, being prejudicial to maintenance of public order. For the purpose of
the Act the detenu has to be a "Goonda" as defined under Section 2(f)
of the Act.
Habitual
:
The
meaning of the words "habit" and "habitually" as given in
the Advanced Law Lexicon (3rd Edn.) by P. Ramanatha Aiyer is : "Habit settled
tendency or practice, mental constitution. The word 'habit' implies a tendency
or capacity resulting from the frequent repetition of the same acts. The words
by 'habit' and 'habitually' imply frequent practice or use. "Habitual Constant;
customary; addicted to a specified habit". The Court in Vijay Narain Singh
v. State of Bihar (1984 SCC (Crl.) 361), considered
the question of a habitual criminal and in para 31 the expression
"habitually" was explained as follows: "The expression
'habitually' means 'repeatedly' or 'persistently'. It implies a thread of
continuity stringing together similar repetitive acts - repeated, persistent
and similar, but no isolated, individual and dissimilar acts are necessary to
justify an inference of habit". The expression "habitual" would
mean repeatedly or persistently and implies a thread of continuity stringing
together similar repeated acts. An isolated default of rent would not mean that
the tenant was a habitual defaulter.
(See:
Vijay Amba Das Diware and Others v. Balkrishna Waman Dande and another. (2000
(4) SCC 126).
The
expression "habit" or "habitual" has not been defined under
the Gujarat Prevention of Anti Social Activities Act, 1985. The word
'habitually' does not refer to the frequency of the occasions but to the
invariability of a practice and the habit has to be proved by totality of
facts. It, therefore, follows that the complicity of a person in an isolated
offence is neither evidence nor a material of any help to conclude that a
particular person is a "dangerous person" unless there is material
suggesting his complicity in such cases, which lead to a reasonable conclusion
that the person is a habitual criminal.
The
word 'habitually' means 'usually' and 'generally'. Almost similar meaning is
assigned to the words 'habit' in Aiyer's Judicial Dictionary, 10th Edition, at
p.485. It does not refer to the frequency of the occasions but to the
invariability of practice and the habit has to be proved by totality of facts.
(See Mustakmiya
Jabbarmiya Shaikh v. M.M. Mehta, Commissioner of Police (1995 (3) SCC 237).
The
expression "habitually" is very significant. A person is said to be a
habitual criminal who by force of habit or inward disposition is accustomed to
commit crimes. It implies commission of such crimes repeatedly or persistently
and prima facie there should be continuity in the commission of those offences.
(See: Ayub alias Pappukhan Nawabkhan Pathan v. S.N. Sinha (1990 (4) SCC 552).
From
one single transaction though consisting of several acts, a habit cannot be
attributed to a person.
Judged
in the background of legal position delineated above the order of detention
cannot be maintained because it only refers to one act. There is also no
material to justify the conclusion that the accused was habitually committing
crime.
There
is no reference to any other crime. Therefore, the order of detention cannot be
maintained. The High Court has not considered this aspect in the proper
perspective. The order of detention in respect of the detenu which was passed
by the Commissioner of Police, Chennai on 1.8.2005 is quashed. The order of the
High Court is set aside. Detenu be released from detention forthwith unless
required to be otherwise detained.
The
appeal is allowed.
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