State of Tamil Nadu and Anr. v. Kethiyan Perumal

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 701 of 1999. From the Judgment and Order dated 9.10.98 of the Madras High Court in H.C.P. No. 641 of 1998. WITH Crl. A. No. 702 of 1999. Abhay Kumar, Gopal Krishan and Subramonium Prasad for the Appellants. The Judgment of the Court was delivered ARIJIT PASA Y AT, 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. 701of1999 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 Detaining Authority.

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 STATEOFTAMILNADUv. KETHIYANPERUMAL[PASAYAT, J.) 325 primarily on the ground that the Detaining Authority took into consideration A 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 I6S which was relied upon by the detaining authority. Primary stand of the writ petitioner (present respondent)

B 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 Mrs. U. Vijayalakshmi 's case (Supra) dealt with the matter in C detail and upheld the detention. Reliance was placed on Section SA 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 de.cision in Mrs. U D 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 E 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. I where there was clear admission about the unlawful activities. In any event the effect of Section SA of the Act has not been kept in view by the High p Court. There is no appearance on behalf of the respondent in spite of service of notice. The High Court did not take note of the fact that the factual distinction G 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 H ' 32~ i • . ; •'-'. 'r•.,','"c'!• _!,. ~,~f,!lpl\1);': ~OUiq' R;(i::ftQRrn,[~P.04]iSUeP: :S S.C.R. A R%£Pfillf:~ie~ B1~~i;tf!!f!e~. ;~Yr~~~\ ~ig~;~~\l\1:.J~~t~fl'!IY.~~1~as done· with. the ·H~d,t:J;Hf 14~!.e~.!i.<?H.;R~i~~~i/Y, <;~ 1µ,}~ 1·gr9.~n~rf'iil:h~l!~ J3ore.st officer;' s. report did R~h ~~Yi'Yhern)nd~.~i1!~(}9!Wt.·; rh.~.1,y~f~~t~on, rpublic .order ,,a~pe~t. , In Jact, rit cfe~x!y,,w,e.Ht\W.1~ *fit 1.~r-~iyj~i~~1 r(,)f t~~ detenu P!ejuqjcially,affepted, pu_blic ~Sd~r:rJ! ~li~_,~J?~<:;if!F~\ly1 ~tated_. as follcws:.; . d ._ 1 .h. / , ,. : 1 . .1 . .? B i_)r!~trnvF·;;,~ftr1rhuril~ri ·life; i~ 1 <l~jj~~<le 1nt · b'n '~~t~~; ci~~~-i;~i·r "'i~<l' he~lthy u ~r1~· .. l~! ... J L•'//'.1"" i ,,t 1 ... h_,rn ,~Jd< ·;;~r .... 1· !"• ... : ··~, .• ,q;~; (.:f ~1. ,.., iJC(J .~!'·~:~I '1d1 J;•H. ~ agnculture for prov.1dmg food .. Destruction of sandalwood trees m i;· / ·" • ve1i6te.

6ist~ic1 ~ff1 ~eriO~~I), 'art'~cr tHe·:i~aiiab'i1ity 11 0'r 1'h1~s~r ~5dJ~Hai ,/_11. ~ r:"' ... Jrt l,_."' ;.··•·_:;f .t.; ;s.: .!: ,i,~ (.I',:\~ ..... ;"lf'.f•iL;fH;. I• · .. I/ .. •~)•:i .. thirigs·and cause thre'at to' public life at large <l4~ to destruction, of : .,,ii• N'at'Urrif'F~~e'st':Eai-sy~t~cl: :·" ;,•,,;( =•·' .": ·L\••:. ,•;r, • r J' ll'; HJ 1 ,0 q J t l'". ji ~u > :, .... :.: ·.·~ -i t_): ~!· -~··1 .·t;··· ·_,_;:r.tl"".:~·-. .. ·., .... r ;1;. 1 ·,jiJ ... .1i Ob q ' ·,r;,~.:· ,Hence· Heel that we should stop:by a!Hriearis tlie' indiSctimirrate "··; r , felling bf frees in1VellowDistricUn the,lhtere'st of public ·bec·ause·the ".; . .;if..ecblogical.1system is affected' itr a :ma11ner,prejudiciaP-tO'·the·puolic • ; I : - , • t l'' .~. i 1 The factual mistake, committed by the High Court by observing that there ,was no mention. regarding, activities being •highly(dangerous to 'public order; ,is ,notisustainable,' in view ·of.the details indicated and· clear· mention:

It·was :categorical Ly. stated;~haMhe. destruction .of ecological :system 'would ·be' highly dangerous to public order. In any event.the:effect 6f Section :SA-of the: Act cannot be lost sight of The High Court was clearly in error in holding tfi~t <iecisioif in: 1Md:'. U 1"-J!ijaydldkS'llnii ;s 1case' 1 ('siip~a) w'as 11HistirigUishable. .. rlie-iaet.isiokinlMr.f. ·u_, Vijayalakshirli ;s 1cas'e 'csupra) 1 ciearly~appiies· to' tile' rabis1iof·->the''case; His' to.'tie ·n3teci'-thatlii1D: ·ViJ~ytilaksh'mtc71se '(supra)· r!lis' cduft:l<:at~g'orically'neld that iii rview~ 6f :secti6n• SA 'dfthe'·Ab 'ai{extraheoliJ an'd;irre1~\7atit gtouhd'Ooes~riot'affecrvalidiiy'oftile'obiention order as'Secticin 5.A:.:Was:fntro'clucea"preeiseif to-take 1 'clire"cff su~WarJituatidrl. 'This Couri; infer' F1 a/i£1,ilierl:l aslfollows: ·cA ",)\' :;q ~·< );/', '":; 't 1' 7 """-''': ~.i'

"The second contention is based on the facts stated in paragraph >;o:·:···u,:41bf:Jthe-- grourtds'of.aeterition: 'It ·E/nianifesf· fronFthe· facts1 st~ted in paragraph 4 of the grounds of detention that the emphasis is ·tWofdld:·' (I) that to profit frorr. the high price fetched by sandal wood !n the . Q-; nGiJ~i."iif~gni 1IB1"rket',niliit1t 'reihn~'. M ~~n~aiA.wdria tfJe;1'i5' 6nrlthe1 i~c~ease, ·, i . '"~ th@fe~yibaa~(ing 1Widis~'re 1ad dalfge'r tbithe! e!(ol6gi~al systel~ a~cf 1'~~~' rioq·-n br'~t~vJhtfi:q0G6fJril'rl16Jf -~t'na·~c2) 1 t1iahli~ 1huge '~on-~y··r~l1iilg Into' d~• 11 Ytrn"PiaAd~<hff'i1it?a1s rriilZeil:werii's'usc~pfiti1e 1<./drin-~iri~ ~n<l gcilnbi'irlg,!/ thereby converting the poor and innocenttfibals into anti~sdcl~ls. so" Iji hri~ 0/N,:i~~i~·~sLnrBtW~P,~ct is conc~r~~?- w~ 1find from th~ grou11ds of STATE"OFTAMILNADUv.KETHIYANPERUMAL[PASAYAT.

J.] s27 · ··".' ,i·"deteHtion thattlie &ienJ was iii.volve'd in two slmilkr casd;iri'ttie past 1A arid the impugned order' of detention was pa~~ed after he 'was found - "'~"' ''io' have indtilgdi'in 'sYmifar activity or( fst 'rviay; 1992. As~is"clear I ,;from'' the ex1pfanat'i0n 'to'Sectio'n' 2(a)'extracted 'earli~r,'\vid'espread 1 ' 1' l(:fanggito' the' 'ecological' system" must be deerried fo 'affect public '· . ' order adv'ersely witI1in the'm'eanirig of that expression in Section 2(a) ;13 ' ''of the Act:Counsel submitt~d that'althotigtt'ii: is asserte'cl in paragraph "' '4\:lf the' grounds of detention that the 'illicit cutting and ·removal of .l sahdal'w'ooci tree§' from 'the reserved forest' area causes widespread ::J: ''''·danger to ihe e;cologic~I system and disturbs the deficqte equilibrium ·'·' :_,' 'thereof,'ih'ere is riothing'on' record1tci sliow thatthis assertion·is'well "'' ' 1 · • t'oUnded. We'are' afraid\.Ve cannot accept this s'ubfuissio~ made:by ihe C '.

1 'fl t • · ' nc learned counsel for the detehu. Itis'manifest from paragraph 4 of the grounds of detention that this view was founded oinlfo 6pinio1f:of the District Forest Officer, Vellore. Once it is found that the ground of r L 1 r 1 detention is one recognized by sub-section (I) ·of Section. j of the tre ",.; 1 "Act, :i~ is,not for this Court to probe into the correctness of the alleged D 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 t!"le impugned detention order. He E 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 con: ~ntion is well founded, we are of the opinion that Section SA of the Act takes care ofit.

Even if we were to hold that this ground is extraneous or irrelevant, that would not. affect the validity of the detention order F as Section SA 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 G identical issues. 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 H A 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 B 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 contin!lance or otherwise of the effect of the objectionable acts. The State shall consider whether there still exists a proxim~te temporal nexus between the period of C 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. N.J. Appeals allowed.