Ajith v. The Secretary To The Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.12.2024 CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM AND THE HONOURABLE MR. JUSTICE M.JOTHIRAMAN H.C.P.No.3082 of 2024 Ajith ... Petitioner/Son of the detenu Vs.
1.
The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.
District Magistrate and Collector of Kallakurichi District, Kallakurichi.
3.
The Superintendent of Police, Kallakurichi District, Kallakurichi.
4.
The Superintendent of Prison, Central Prison, Cuddalore-4.
5.
The Inspector of Police, Kachirayapalayam Police Station, Kallakurichi District.
... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the second respondent dated 07.11.2024 in D.O.No.C2/69/2024 against the petitioner's father Ponnudurai, Male, aged 37 years, S/o. Arunachalam, who is confined at Central Prison, Cuddalore and set aside the same and direct the respondents to produce the detenu before the Court and set him at liberty.
For Petitioner : Mr.S.Selvakumar For Respondents : Mr. R.Muniyapparaj Additional Public Prosecutor
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.) The order of detention passed by the second respondent in proceedings D.O.No.C2/69/2024 dated 07.11.2024 is sought to be quashed in the present habeas corpus petition.
2.
Heard the learned counsel for the petitioner, as well as the learned Additional Public Prosecutor appearing for the respondents.
3.
The learned Counsel for the petitioner would submit that the impugned detention order has been passed relying on two adverse cases and a ground case. Both the adverse cases are registered under the provisions of the Tamil Nadu Prohibition Act, 1937.
4.
A plain reading of the adverse cases would reveal that the cases were registered periodically. The way in which the prohibition cases are registered against the detenu raises serious doubt. Presuming that those cases were registered based on certain facts, the same can be dealt with under the ordinary law and by following procedures and the preventive detention in the present case in our considered opinion is unnnecessary and the same is liable to be quashed.
5.
Recently, the Hon'ble Supreme Court of India in the case of 'Arjun Vs. State of Maharashtra & Others' in SLP(Crl.) No.12516 of 2024 dated 11.12.2024 dealt with the criminal cases registered under prohibition law. Arguments have been advanced relating to several issues and the Court found that in as much as, none of the activities which form the
basis of the detention order can be said to be affecting public order. These prohibition cases registered on the basis that the detenu was selling illicit arrack in a hided place, would not constitute a ground to invoke Act 14 of 1982, since the public disorder as considered by the Apex Court is not satisfied. The public order has been defined in the case of 'Ram Manohar Lohia Vs. State of Bihar & another, reported in '1965 SCC Online SC 9'. The relevant observations are extracted hereunder:- ......"54. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of 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.
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 examples 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(1)(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".....
6.
Accordingly, every bit of piece does not lead to public disorder. When a person can be dealt with in exercise of the powers to maintain the law and order, unless the acts of the proposed detenu or the once which have the tendency of disturbing the public order, a resort to preventive detention would not be permissible.
7.
With the above observations, the detention order passed by the second respondent in D.O.No.C2/69/2024 dated 07.11.2024 is quashed and the Habeas Corpus Petition is allowed. The detenu, viz., Ponnudurai, aged 37 years, Son of Arunachalam confined at Central Prison, Cuddalore is directed to be set at liberty forthwith, unless he is required in connection with any other case.
[S.M.S., J.] [M.J.R., J.] 20.12.2024 Index :
Yes/No Speaking Order :
Yes/No :
Yes/No veda
To 1.
The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.
The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai - 9.
3.
District Magistrate and Collector of Kallakurichi District, Kallakurichi.
4.
The Superintendent of Police, Kallakurichi District, Kallakurichi.
5.
The Superintendent of Prison, Central Prison, Cuddalore-4.
6.
The Inspector of Police, Kachirayapalayam Police Station, Kallakurichi District.
7.
The Public Prosecutor, Madras High Court, Chennai - 104.
S.M.SUBRAMANIAM, J.
AND M.JOTHIRAMAN, J.
veda H.C.P.No.3082 of 2024 20.12.2024