2012 (2) TMI 496 - SC - Customs

Whether failure on the part of the Detaining Authority to consider the representation of the detenu vitiates the entire order? Whether all the incidents mentioned in the grounds of detention clearly substantiate the subjective satisfaction arrived at by the Detaining Authority as to how the acts of the detenu were prejudicial to the maintenance of public order?

Issues Involved:
1. Legitimacy of the preventive detention under T.N. Act 14 of 1982.
2. Distinction between 'law and order' and 'public order'.
3. Non-application of mind by the Detaining Authority.
4. Non-consideration of the representation by the Detaining Authority.
5. Reliance on stale cases by the Detaining Authority.

Issue-wise Detailed Analysis:

1. Legitimacy of the preventive detention under T.N. Act 14 of 1982:
The appellant, father of the detenu, challenged the preventive detention order issued by the Commissioner of Police under Section 3 of the Tamil Nadu Prevention of Dangerous Activities Act, 1982. The Detaining Authority classified the detenu as a 'goonda' based on his involvement in multiple criminal cases from 2008, 2010, and a recent incident in 2011. The appellant argued that the detention was unwarranted and that the detenu's actions constituted a law and order issue rather than a public order disturbance. However, the Court, after reviewing the materials and grounds of detention, upheld the Detaining Authority's decision, emphasizing that the detenu's actions had created panic and insecurity among the public, thus justifying his classification as a 'goonda' and his preventive detention.

2. Distinction between 'law and order' and 'public order':
The appellant contended that the detenu's actions were merely a law and order problem and did not disrupt public order. The Court rejected this argument, citing precedents that define public order as the even tempo of life in a community. The Detaining Authority's findings, which included threats to the public and damage to property, were deemed sufficient to classify the situation as a public order issue. The Court emphasized that the Detaining Authority's subjective satisfaction regarding the need for preventive detention was valid and should not be substituted by the Court's opinion.

3. Non-application of mind by the Detaining Authority:
The appellant argued that the Detaining Authority exhibited non-application of mind by incorrectly stating that the detenu had obtained regular bail instead of anticipatory bail. The Court found this claim factually incorrect, noting that the detenu had indeed obtained anticipatory bail in the cases mentioned. The High Court had also addressed this issue, stating that the detenu's bail status did not prejudice the detention order. The Court concluded that there was no merit in the appellant's argument regarding non-application of mind.

4. Non-consideration of the representation by the Detaining Authority:
The appellant claimed that the Detaining Authority failed to consider the detenu's representation, thus vitiating the detention order. The Court noted that the representation was received on 28.07.2011, and the detention order was approved by the Government on 29.07.2011, making the Detaining Authority functus officio. The Government and the Advisory Board had duly considered and rejected the representation. The Court found no procedural lapse in the consideration of the representation.

5. Reliance on stale cases by the Detaining Authority:
The appellant argued that the cases cited by the Detaining Authority were stale. The Court reviewed the grounds of detention, which included incidents from 2008, 2010, and 2011, and concluded that the detenu was a habitual offender. The High Court had also found that the detenu's involvement in criminal activities was consistent and recent enough to justify the detention. The Court rejected the argument that the cases were stale and upheld the Detaining Authority's conclusion.

Conclusion:
The Supreme Court dismissed the appeal, agreeing with the High Court's judgment and the Detaining Authority's decision. The Court found that the preventive detention was justified, the distinction between law and order and public order was correctly applied, there was no non-application of mind, the representation was duly considered, and the cases cited were not stale.

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