THE HONOURABLE MR.JUSTICE M.SUNDAR

and

THE HONOURABLE  MR.JUSTICE R.SAKTHIVEL

H.C.P.Nos.683, 689 and 691 of 2023

H.C.P.No.683 of 2023

Chengalvarayan

S/o.Rajagopalan  ..  Petitioner/Father of Detenu

Vs. 1.The Secretary to the Government,

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 07.08.2023

CORAM

THE HONOURABLE MR.JUSTICE M.SUNDAR

and

THE HONOURABLE  MR.JUSTICE R.SAKTHIVEL

H.C.P.Nos.683, 689 and 691 of 2023

H.C.P.No.683 of 2023

Chengalvarayan

S/o.Rajagopalan  ..  Petitioner/Father of Detenu

Vs. 1.The Secretary to the Government,

Home, Prohibition and Excise Department,

Secretariat,

Chennai – 600 009.

2.The District Magistrate and District Collector,

Thiruvallur,

Thiruvallur District.

3.The Superintendent of Police,

Thiruvallur,

Thiruvallur District.

4.The Superintendent of Prison,    Central Prison-II,    Puzhal, Chennai.

5.The Inspector of Police (L & O),

Arambakkam Police Station,

Thiruvallur District.              .. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records in connection with the order of Detention bearing order No.BCDFGISSSV No.05/2023 passed by the second respondent dated 15.02.2023 against the petitioner’s son C.Surendran, male aged 26 years, S/o.Chengalvarayan, who is confined at Central Prison, Puzhal-II, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner : Mr.V.R.Kamalanathan for Mr.K.S.Arumugam

For Respondents                           :   Mr.E.Raj Thilak

Additional Public Prosecutor

H.C.P.No.689 of 2023

Sulochana

W/o.Venkatesan  ..  Petitioner/Mother of Detenu

Vs. 1.The Secretary to the Government,

Home, Prohibition and Excise Department,

Secretariat,

Chennai – 600 009.

2.The District Magistrate and District Collector,

Thiruvallur,

Thiruvallur District.

3.The Superintendent of Police,

Thiruvallur,

Thiruvallur District.

4.The Superintendent of Prison,    Central Prison-II,    Puzhal, Chennai.

5.The Inspector of Police (L & O),

Arambakkam Police Station,

Thiruvallur District.             .. Respondents

Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records in connection with the order of Detention bearing order No.BCDFGISSSV No.07/2023 passed by the second respondent dated 15.02.2023 against the petitioner’s son V.Santosh, male aged 27 years, S/o.Venkatesan, who is confined at Central Prison, Puzhal-II, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner : Mr.V.R.Kamalanathan for Mr.K.S.Arumugam

For Respondents                           :   Mr.E.Raj Thilak

Additional Public Prosecutor

H.C.P.No.691 of 2023

Vijaya

W/o.Loganathan  ..  Petitioner/Mother of Detenu

Vs. 1.The Secretary to the Government,

Home, Prohibition and Excise Department,

Secretariat,

Chennai – 600 009.

2.The District Magistrate and District Collector,

Thiruvallur,

Thiruvallur District.

3.The Superintendent of Police,

Thiruvallur,

Thiruvallur District.

4.The Superintendent of Prison,    Central Prison-II,    Puzhal, Chennai.

5.The Inspector of Police (L & O),

Arambakkam Police Station,

Thiruvallur District.             .. Respondents

Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records in connection with the order of Detention bearing order No.BCDFGISSSV No.06/2023 passed by the second respondent dated 15.02.2023 against the petitioner’s son L.Naveen, male aged 24 years, S/o.Loganathan, who is confined at Central Prison, Puzhal-II, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner : Mr.V.R.Kamalanathan for Mr.K.S.Arumugam

For Respondents                           :   Mr.E.Raj Thilak

Additional Public Prosecutor

COMMON ORDER

[Order of the Court was made by M.SUNDAR, J.]

This common order will now dispose of the captioned three ‘Habeas Corpus Petitions’ [hereinafter ‘HCPs’ in plural and ‘HCP’ in singular for the sake of convenience and clarity].

2. ‘H.C.P.No.683 of 2023’ shall be referred to as ‘I HCP’, ‘H.C.P.No.689 of 2023’ shall be referred to as ‘II HCP’ and ‘H.C.P.No.691 of 2023’ shall be referred to as ‘III HCP’ for the sake of convenience and clarity.
3. When the captioned HCPs were listed for admission on 26.04.2023, the following orders were made by this Court in the admission Board:

 

4. Order dated I HCP:
5. Order dated II HCP:
6. Order dated III HCP:

 

7. The aforementioned admission Board orders capture all the essentials that are imperative for appreciating this common order and therefore we are not setting out the same again in this common order. Be that as it may, paragraph 5 in the three admission Board orders will bring to light that at the time of admission, learned counsel posited his legal challenge to the impugned preventive detention orders on the point that representations dated 27.10.2023 given by the detenus have not been considered, however in the final hearing Board today, Mr.V.R.Kamalanathan, learned counsel appearing on behalf of Mr.K.S.Arumugam, learned counsel on record for petitioners predicated his campaign against the three impugned preventive detention orders on two points and they are as follows:
   • The impugned preventive detention orders are based on one solitary case, namely, Crime No.17 of 2023 on the file of Padhirivedu Police Station in Thiruvallur District for alleged offences under Section 363 of ‘The Indian Penal Code (45 of 1860)’ [hereinafter ‘IPC’ for the sake of convenience and clarity] @ 147, 148, 294(b), 363, 397, 307, 447, 506(ii) of IPC read with 27(3) of Indian Arms Act, 1959. A careful perusal of the grounds of impugned preventive detention orders itself will make it clear that the alleged motive is a civil dispute touching upon land litigation and therefore it can at best be a case of law and order and public order does not come into play;
   • The subjective satisfaction arrived at by the Detaining Authority qua imminent possibility of detenus being enlarged on bail is clearly impaired as in paragraph 8 of the grounds of impugned preventive detention orders, the detaining authority has merely noticed the fact that detenus have not filed bail applications. There is no further discussion on this aspect of the matter and there is no material to support subjective satisfaction that has been arrived at as regards imminent possibility of detenus being enlarged on bail.
8. In response to the aforementioned two points learned Additional Public Prosecutor submitted to the contrary and the submissions of the learned Additional Public Prosecutor are as follows:
   • There is an alteration report qua ground case and the alteration report shows that one of the parties belongs to a political party and is an Electee in the local body election.

Therefore, public order element has come in;

• Though detenus have not moved bail petitions, bail has been granted for similar offences and therefore, there is every possibility of detenus getting bail in the ground case.

9. We carefully considered the rival submissions. We take up the second point first. The second point turns on subjective satisfaction of the detaining authority qua imminent possibility of detenus being enlarged on bail. As rightly pointed out by Mr.V.R.Kamalanathan, learned counsel appearing for counsel on record for petitioner, except paragraph 8 of the grounds of impugned preventive detention orders, there is no mention about bail qua detenus anywhere in the impugned preventive detention orders. To be noted, paragraph 8 of the three impugned preventive detention orders are ad-verbatim the same it reads as follows:

‘8) The accused Surendran has not filed any bail application in the Ground case in Padhirivedu Police Station Cr.No.17/2023 u/s 363 IPC @ 147, 148, 294(b), 363, 397, 307, 447, 506(ii) IPC r/w

27(3) Indian Arms Act before any court.’

10. The submission that after noticing that the detenus have not moved bail application and not saying anything more in the impugned preventive detention orders leave the three impugned preventive detention orders hit by the vice of non application of mind and also utter lack of subjective satisfaction qua imminent possibility of detenus being enlarged on bail. Therefore the argument of the learned Public Prosecutor post impugned preventive detention orders in the final hearing of the HCPs does not save the day for the impugned preventive detention orders. The reason is, it is for the detaining authority to arrive at subjective satisfaction qua imminent possibility of detenus being enlarged on bail. There is no whisper on this aspect of the matter in the grounds of impugned preventive detention orders and therefore we have no hesitation in sustaining the argument made by learned counsel for petitioners.
11. Though it has been repeatedly held that when impugned preventive detention orders are vitiated on one point, it may not be necessary to even advert to other point, as another point has been raised, we deem it appropriate to deal with the same also.
12. As regards public order point, the lead case is the celebrated Ram Manohar Lohia case, i.e., Ram Manohar Lohia vs. State of Bihar and others reported in AIR 1966 SC 740 and the relevant paragraphs are 54 and 55 which reads as follows:

’54. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorder or only some ? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder, They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other example can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(l)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

55. It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.’
56. To be noted, Ram Manohar Lohia principle is good law and it continues to govern the field as it has been followed very recently in

Mallada K.Sri Ram vs. State of Telangana reported in 2022 SCC OnLine

SC 424. A careful perusal of paragraphs 54 and 55 of Ram Manohar Lohia’s case law makes it clear that the three concentric circle doctrine has been put in place and for a matter to move from larger concentric circle of law and order to next smaller concentric circle of public order, the illustration set out in Ram Manohar Lohia’s case has to be satisfied. In the case on hand, merely because one of the parties belong to a political party and is an Electee qua a local body, absent any other material, it cannot be gain-said that public order comes into play. In this regard, this Habeas Corpus Court reminds itself that the question which a HCP Court would set to itself in a habeas legal drill is whether the normal law and order machinery is good enough qua the case or is it imperative to resort to preventive detention orders to contain the situation. In the case on hand, as rightly pointed out by learned counsel for petitioners, it is clear that it is a civil dispute and the alleged motive is also pertaining to an immovable property transaction. Therefore we have no difficulty in accepting the argument of learned counsel for petitioners that the case on hand, i.e., solitary case (which is the sole substratum of impugned preventive detention orders) does not move nay it does not even gravitate from the first larger concentric circle of law and order to the next smaller concentric circle of public order if three concentric circle doctrine propounded by Hon’ble Supreme Court in Ram Manohar Lohia’s case is applied. Therefore, the second point also enures to the benefit of the petitioners in sustaining the petitioners’ campaign against impugned preventive detention orders.

14. As both the points canvassed before us by learned counsel for petitioners are sustained, the sequitur is, all three impugned preventive detention orders made by the Detaining Authority deserve to be dislodged.
15. (i) Ergo, the sequitur is, H.C.P.No.683 of 2023 is allowed.

Impugned detention order dated 15.02.2023 bearing reference BCDFGISSSV No.05/2023  made by the second respondent is set aside and the detenu Thiru.Surendran, aged 26 years, son of Thiru.Sengalvarayan is directed to be set at liberty forthwith, if not required in connection with any other case / cases.  There shall be no order as to costs.

• Apropos, the sequitur is, H.C.P.No.689 of 2023 is allowed.

Impugned detention order dated 15.02.2023 bearing reference BCDFGISSSV No.07/2023  made by the second respondent is set aside and the detenu Thiru.Santosh, aged 27 years, son of Thiru.Venkatesan is directed to be set at liberty forthwith, if not required in connection with any other case / cases.  There shall be no order as to costs.

• In the result, H.C.P.No.691 of 2023 is allowed. Impugned detention order dated 15.02.2023 bearing reference BCDFGISSSV No.06/2023  made by the second respondent is set aside and the detenu Thiru.Naveen, aged 24 years, son of Thiru.Loganathan is directed to be set at liberty forthwith, if not required in connection with any other case / cases.

There shall be no order as to costs.

 

(M.S.,J.)               (R.S.V.,J.)

07.08.2023

Index : Yes

Speaking order Neutral Citation : Yes rsi

P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison-II, Puzhal, Chennai.

To

1.The Secretary to the Government,

Home, Prohibition and Excise Department,

Secretariat,

Chennai – 600 009.

2.The District Magistrate and District Collector,     Thiruvallur,     Thiruvallur District.

3.The Superintendent of Police,

Thiruvallur,     Thiruvallur District.

4.The Superintendent of Prison,    Central Prison-II,    Puzhal, Chennai.

5.The Inspector of Police (L & O),    Arambakkam Police Station,    Thiruvallur District.

6.The Public Prosecutor,

Madras High Court, Chennai.

M.SUNDAR, J. and

 R.SAKTHIVEL  , J.

rsi

H.C.P.Nos.683, 689 and 691 of 2023

07.08.2023