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Vijayalaxmi v. The State of Tamil Nadu, rep.by its - HCP (MD) No.174 of 2007  RD-TN 2145 (2 July 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE D.MURUGESAN
THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM
HCP (MD) No.174 of 2007
W/o.M.S.Bhaskaran ... Petitioner
1.The State of Tamil Nadu, rep.by its
Secretary to Government,
Prohibition & Excise Department,
Fort St.George, Chennai-9.
2.The District Collector and
Virudhunagar. ... Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus by calling for the records relating to the detention order Cr.M.P.No.15/2007 Goonda dated 04.04.2007 passed by the 2nd respondent and quash the same and set the petitioner's husband M.S.Bhaskaran, now detained in Central Prison, Madurai, at liberty. For Petitioner ... Mr.S.Manoharan
For Respondents ... Mr.N.Senthur Pandian,
(Order of the Court was made by D.MURUGESAN,J) The petitioner is the wife of the detenu by name M.S.Bhaskaran, who has been detained under the Tamilnadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum grabbers and Video Pirates Act 1982 (Tamilnadu Act 14 of 1982), branding him as a "GOONDA". The said order of detention, dated 04.04.2007, passed by the second respondent is challenged in this habeas corpus petition.
2.The order of detention has been made on the basis of two adverse cases, one in Crime No.603/2005 for the offences under Sections 147, 148, 341, 506(ii) IPC and another in Crime No.187/2006 for the offences under Section 393 IPC, both on the file of Thiruthangal Police Station and the ground case in Crime No.278/2007 for the offence under Sections 147, 148, 342, 365, 387 and 506(ii) IPC on the file of Sivakasi East Police Station.
3.The learned counsel for the petitioner challenges the order of detention mainly on the following two grounds.
(a)The order of detention was passed on 04.04.2007, but the first respondent, the Government, did not approve the same within a period of 12 days from the date of detention order and in the absence of compliance of the above mandatory condition under sub-section 3 of Section 3 of the Tamil Nadu Act 14/1982, the detention order is liable to be set aside. (b)The non-mentioning of the period of detention in the order of detention as per sub-section (2) of Section 3 of the Act vitiates the order of detention.
4.We have heard the learned Additional Public Prosecutor on the above aspects.
5.In order to appreciate both the contentions raised by the learned counsel for the petitioner, Section 3 of the Tamil Nadu Act 14/1982 needs extraction, which reads as follows:
"3.Power to make orders detaining certain persons.--(1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or forest-offender or goonda or immoral traffic offender or slum-grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2)If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government are satisfied that it is necessary so to do, they may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section. Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (3)When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."
6.Insofar as the first ground is concerned, it is true that the State government shall approve the detention order within a period of 12 days from the date of order of detention and the same is mandatory as per sub-section (3) of Section 3 of the Act. The learned Additional Public Prosecutor, by drawing our attention to the counter affidavit, submitted that the detention order dated 04.04.2007 was approved by the Government in G.O.No.964, Home, Prohibition and Excise Department, dated 15.04.2007 itself, i.e. within a period of 12 days. In view of the above, we do not find any merit in the contention of the learned counsel for the petitioner as the first respondent had complied with the mandatory provision while granting approval to the order of detention within the period of 12 days.
7.Insofar as the second ground of attack that in terms of sub- section (2) of Section 3, the period of detention is not mentioned in the order of detention and consequently the same is vitiated is concerned, sub-section (1) of Section 3 of the Act relates to the power of the State Government to direct a person be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. To the given facts and circumstances of the case, the said provision is not applicable, as admittedly, the detention order was issued under sub-section (2) of Section 3 of the Act. By that sub-section (1) of Section (3), the State Government, if satisfied with respect to any bootlegger or drug-offender or forest-offender or goonda or immoral traffic offender or slum-grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
8.However, sub-section (2) of Section 3 enables the State Government to empower the District Magistrate or the Commissioner of Police, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of the concerned District Magistrate or the Commissioner of Police, to exercise the power conferred on the State Government under sub-section (1) of Section 3 of the Act. A limitation is cast upon the State Government while exercising such power in the proviso to sub-section (2) of Section 3, which contemplates that while conferring such power on the District Magistrate or on the Commissioner of Police, the State Government should restrict such an order only for a period of three months initially, subject to extension by three months on each time.
9.A combined reading of sub-section (1) of Section 3 as well as the proviso to sub-section (2) to Section 3 of the Act would go to show that when the State Government empowers the District Magistrate or the Commissioner of Police to exercise the power conferred by the statute on the State Government under Section 3(1), the period is restricted initially for three months within which period the District Magistrate or the Commissioner of Police would require to pass orders of detention. The restriction of period has relevance in the context of sub-section (2) of Section 3, namely the District Magistrate or the Commissioner of Police can exercise
the power under sub-section (1) of Section 3 only having regard to the circumstances prevailing or likely to prevail in the area under their jurisdiction and it cannot be an unlimited power for being vested on such authorities by the State Government, since the power to pass detention order vests only with the State Government. By virtue of sub-section (2) of Section 3, the power is conferred on the State Government to delegate the same to the authorities. This restriction of period is only for the authorities to pass orders under sub-section (1) of Section 3 and such period does not, in any way, has relevance to the period of detention. In fact, Section 13 of the Act is very clear. As per the said section, the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 12 shall be twelve months from the date of detention. Sub- section (1) of Section 3 does not
restrict the period of detention initially for three months and in the absence of any restriction, it must be construed that as per sub-section (1) of Section 3 read with Section 13 of the Act, the period of detention is 12 months and there cannot be any restriction on the said period. In the circumstances, we are not inclined to accept the contention of the petitioner that the order of detention is vitiated since the detaining authority has not mentioned the period of detention in restricting their operation only for a period of three months.
10.In view of our above conclusion, we do not find any merit in the petition and accordingly it stands dismissed. To:
1.The Secretary to Government,
Home, Prohibition & Excise Department,
Fort St.George, Chennai-9.
2.The District Magistrate and
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
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