Arunachalam, J.
1. Petitioner Arumugam has been detained as a 'goonda' under Tamil Nadu Act 14 of 1982, in pursuance of an order of detention dated 9-7-1993 passed by the first respondent. Commissioner of Police, Madras City, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
2. The main ground urged by petitioner's counsel is that the detaining authority had not recorded his satisfaction that the petitioner was a 'goonda' and .... used the said word as a title prefixing it before the word 'Thiru' and on that sole ground the impugned order has to be voided. In support of this contention, petitioner's counsel relied on the judgment of another Division Bench of this Court rendered in H.C.P. No. 34, of 1994 - 'order dated 27-6-1994.
3. The Division Bench stated as follows :-
'The detention order does not indicate any application of mind to the fact whether he was a Goonda, nor does it record any finding of the detaining authority in that behalf. The grounds of detention also suffer from the same defect. The grounds start with the statement that the petitioner is a Goonda and thereafter mentions four previous crimes allegedly committed by him. Then it does on to narrate the incident dated 12-7-1993 and on that basis holds that offences under sections 341, 336, 392 read with 397, and 506(ii) Indian Penal Code, have been registered against the petitioner. Even at this stage, the detaining authority does not apply its mind to consider whether the petitioner is a Goonda within the meaning of the term, but goes on to hold that, 'he has acted in a manner prejudicial to the maintenance of public order'. That is how the impugned order has been passed.
3. The provisions of Act 14 of 1982 have received consideration by the Supreme Court in Veeramani v. State of Tamil Nadu, 1994 SCC (Cri.) 482 wherein the scope of Section 2(f) of the Act read with Section 3(1) of the Act have been explained. It has been specifically clarified that the detaining authority must first be satisfied that the person comes within the meaning of 'Goonda'. The word 'Goonda' as defined in Section 2(f) means a person who habitually commits or attempts to commit or abets the commission of the offence punishable under Chapter XVI or XVII or XXII of Indian Penal Code. The word 'habitually' is used only in relation to Goonda and not in relation to others like Bootlegger, or Drug-Offender or Forest Offender or Immoral Traffic Offender and is therefore important. The satisfaction must, therefore, relate to the fact that the person was a habitual offender and, therefore, a Goonda within the meaning of the term. The word 'habitually' denotes the conclusion to be drawn by the detaining authority on the basis of the material on record. Unfortunately, in this case, such a conclusion is not drawn either in the order of detention or in the grounds of detention and this, in our opinion, introduces a serious illegality in the impugned order'.
4. We have heard Mr. B. Sriramulu, learned Public Prosecutor on this ground of challenge. He submitted that several habeas corpus petitions were disposed of by the same Division Bench on the basis of the verdict rendered by them in H.C.P. No. 34 of 1994.
5. Several other contentions have also been urged by petitioner's counsel, which can be reserved for consideration at a later stage.
6. The Division Bench has relied upon the decision of the Supreme Court in Veeramani v. State of TamilNadu, 1994 SCC (Cri.) 482 in support of it's view. Prima facie we are unable to agree with the view expressed by the other Division Bench in HCP No. 34 of 1994. We are also not in a position to agree that the law laid down by the Supreme Court reflects the view expressed by the Division Bench. It is with reference to the acts of a goonda falling under section 2(a)(iii) the detaining authority can pass an order of detention under section 3, of the Act. Adverse cases contained in the grounds have a bearing upon the status of the detenu as a 'goonda'. They have nothing to do with the formation of the subjective satisfaction that the detenu is engaged in committing acts which will affect the maintenance of public order. In other words, adverse cases have relevance only to the detenu being classified as a 'goonda' under section 2(f) of the Act. The further question will then arise if the ground on which the detenu has been detained constitutes an act which would adversely affect the maintenance of public order.
7. We are further of the opinion that, on the material placed before the detaining authority on application of mind, he forms an opinion if the person to be detained was a goonda, boot-legger, forest offender etc., and then makes a declaration in writing about the person to be detained falling within one or other of those categories. Then the order under section 3 of the Act steps in. The grounds of detention may have to be read as a whole and paragraph 1 of the grounds of detention should be held to be an introduction or preamble, reflecting the opinion of the detaining authority that, on the material scrutinised by him, the person to be detained fell under one or other of the categories contemplated under the Act. The grounds of detention will have to be read as a whole and not in a truncated pattern. Substance of the grounds is more important than the mere form. Since this question is bound to arise almost in every habeas corpus petition, it will be better that this question is decided by a larger Bench of this Court.
8. Registry is directed to place these papers before My Lord, the Hon'ble the Chief Justice, for constituting a Larger Bench to decide this issue.
9. The questions referred to the larger Bench are as follows :-
(1) Will it be necessary to indicate in the order of detention that a person sought to be detained fell under one or other of the categories contemplated under Tamil Nadu Act 14 of 1982
(2) If the detaining authority chooses to mention in the preamble portion in the grounds of detention that the person sought to be detained was a 'goonda, boot-legger, forest-offender etc.' will it amount to pre-judging the issue on which ground alone preventive orders will have to be struck down'?
FULL BENCH DECISION :
Arunachalam, J.
10. Petitioner arumugam who has been detained as a 'goonda' under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982), in pursuance of an order of detention dated 9-7-1993 passed by the first respondent, Commissioner of Police, Madras City, in No. 238, of 1993, has prayed for issue of a writ of habeas corpus directing the respondents to produce him before this Court, to be set at liberty, after quashing the aforestated detention order.
11. When this Habeas Corpus Petition was heard by two of us, it was felt that the order dated 27-6-1994 of a Division Bench of this Court in H.C.P. No. 34, of 1994 (Velayutham alias Velu v. State of Tamil Nadu on which petitioner's counsel placed reliance, required re-consideration. Accordingly, papers were placed before the Honourable the Chief Justice, who constituted this Full Bench to hear the case.
12. Facts found in the grounds of detention are as follows : Petitioner had come to adverse notice in five prior crimes registered by B-2, Esplanade Police Station, for offences punishable under sections 379, 506, Part III. 341 and 392, IPC, crime period ranging between October, 1992 and June, 1993. The first adverse case, taken on file as C.C. No. 1879 of 1993 by the VII Metropolitan Magistrate, Madras, was pending trial when the impugned order was passed. Similarly, the second adverse crime, which led to cognizance being taken in CC No. 1880 of 1993 on the file of the same Metropolitan Magistrate was also pending trial. The other three adverse crimes were under investigation.
13. The ground on which the preventive order was made is relatable to an occurrence which had taken place at or about 8-30 p.m. on 5-7-1993 on the N.S.C. Bose Road, Madras. Dorai, a resident of No. 51, Kailasa Chetty Street, Korukkupet, a commission agent in exporting of textiles, after meeting his friend at Anderson Street in connection with his trade, was proceeding at or about that time near Hameediya Hotel. Petitioner and another Mathew waylaid him. Mathew asked Dorai as to what the time was. Dorai replied that it was 8-45 p.m. Immediately, Mathew exclaimed '(Matter in vernacular omitted)'. Petitioner immediately caught hold of Dorai's hands and asked his associate Mathew to snatch the watch. Mathew snatched the HMT wrist watch from Dorai's hand. Dorai attempted to escape from the spot. Immediately, petitioner by brandishing a knife terrorised him. Later, petitioner and Mathew dragged him away to a nearby dark area. Petitioner snatched away Dorai's gold ring. Mathew suggested to the petitioner to search the pocket of Dorai. Petitioner did so and knocked off Rs. 140/- kept in his shirt pocket by Dorai. Dorai raised a hue and cry. Two passersby rushed to help the victim, while attempting to apprehend the offenders. Petitioners and his associate terrorised both of them uttering the following words :
'(Vernacular matter omitted)'
Petitioner and his associate were chased while they were attempting to escape. Near the Tower Clock at Flower Bazaar, both the offenders picked up soda water bottles from the hand-cart of Kanniappan and hurled the same against Dorai and others. The soda water bottles fell down on the road side, got broken into pieces and scattered all over the roadside. Arunachalam and Kuppuraj, police constables of B-2 police station who arrived at the spot, tried to apprehend the petitioner and his associate. Both of them, even terrorised the policemen, vowing to kill them. Members of the public present in the locality, out of fear, ran for safer places. Travelling public waiting at the nearby bus stop, in fright, ran helter-skelter. Nearby shop-owners closed down their shutters and suspended their trade. There was traffic dislocation, since those who were travelling in their vehicles, out of fear, did not move further. When the petitioner and his associate attempted to escape through mofussil bus stand, Dorai, with the help of police constables and others, caught hold of them. When one of the police constables attempted to recover the knife, he sustained a bleeding injury on his right fore-arm. Stolen articles were recovered. On the complaint of Dorai, Crime No. 1490 of 1993 under sections 341, 392, 394, 332 read with Section 397, and Section 34, I.P.C. and 506 Part II, I.P.C. was registered. Confession statements of the petitioner and his associate were recorded. Arrested petitioner was produced before the concerned Magistrate and remand obtained. By comitting the aforestated acts in a busy locality, which is a residential-cum-business area, they had created alarm and a feeling of insecurity in the minds of the people of that area and thereby acted in a manner prejudicial to the maintenance of public order. On the above materials, detaining authority, who was aware, that the petitioner was in remand, was satisfied that if he were to come out on bail, he would indulge in further activities which would he prejudicial to the maintenance of public order. In the opinion of the detaining authority, recourse to normal criminal law could not have the desired effect, for effectively preventing the petitioner from indulging in such prejudicial activities and therefore in view of his antecedent activities, which are proximate in point of time, in his opinion, there was compelling necessity to preventively detain him.
14. The main ground urged by petitioner's counsel is that the detaining authority had not recorded his satisfaction that the petitioner was a goonda, but had used the said word as a title prefixing it before the word 'Thiru' and on that sole ground, the impugned order has to be voided. He further submitted that the detaining authority cannot christen a person as 'goonda', without recording his reasons for holding him as such. Further, the detaining authority, in view of the definition of 'goonda' under the Act, must have specifically recorded about the habit of the petitioner in involving himself in crimes of similar nature. All that not having been done, impugned order deserves to be struck down.
15. In support of his contention, he referred to the order of a Division Bench of this Court dated 27-6-1994 made in H.C.P. No. 34 of 1994 (Velayutham alias Velu v. State of Tamil Nadu & another). That was a case where the petitioner therein was labelled as a 'goonda' and directed to be preventively detained by an order dated 4-8-1993. It was urged before the said Division Bench that the detaining authority had not recorded its satisfaction that the petitioner therein was a goonda within the meaning of Section 2(f) of Act 14 of 1982. On perusal of the impugned order, the Division Bench concluded that the order indicated that the authority had assumed that the petitioner was a goonda and had used that word as the title prefixing it before the word 'Thiru'. It was further observed that the order of detention did not indicate any application of mind to the fact that the petitioner therein was a goonda, nor did it record any finding of the detaining authority in that behalf. It was further held that grounds of detention also suffer from the same defect. The said Division Bench went on to add that the grounds started with the statement that the petitioner was a goonda and thereafter mentioned four previous crimes allegedly committed by him before narrating the incident dated 12-7-1993, on which a crime was registered under sections 341, 336, 392 read with Sections 397 and 506 (Part II). I.P.C. The Division Bench then stated that even at that stage, the detaining authority did not apply its mind to consider whether the petitioner was a goonda within the meaning of the term, but went on to hold that he had acted in a manner prejudicial to the maintenance of public order. After referring to the judgment of the Supreme Court in Veeramani v. State of Tamil Nadu, 1994 SCC (Cri) 482 wherein the scope of Section 2(f) of the Act read with Section 3(1) of the same Act stood explained, the Division Bench observed that the Supreme Court has specifically clarified that the detaining authority must be satisfied that the person comes within the meaning of 'goonda', as defined in Section 2(f), meaning a person who habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or XVII or XXII of the Indian Penal Code. It was pointed out that the word 'habitually' was used only in relation to a goonda and not in relation to other categories of offenders. Therefore, in the opinion of the Division Bench, satisfaction must relate to the fact that the person is a habitual offender and, therefore, a goonda within the meaning of the term. The word 'habitually', in the view expressed by the Division Bench, denoted the conclusion to be drawn by the detaining authority on the basis of the material on record. Unfortunately, it was observed by the Division Bench, that in that case such a conclusion had not been drawn either in the order of detention or in the grounds of detention and that, in their opinion, had introduced a serious illegality in the order challenged. The Division Bench also declined to accede to the request of the learned Public Prosecutor to go through the material and satisfy itself as to whether the petitioner was a goonda within the meaning of the Act. Detenu therein was directed to be set at liberty.
16. As we have stated in the commencement of this order, since the other Division Bench, to which two of us were parties, was not in a position to agree with the law laid down in H.C.P. No. 34 of 1994 (Velayutham alias Velu v. State of Tamil Nadu and another), referred two questions, which are extracted below, for a decision being rendered by a larger Bench :'
(1) Will it be necessary to indicate in the order of detention that a person sought to be detained fell under one or other of the categories contemplated under Tamil Nadu Act 14 of 1982
(2) If the detaining authority chooses to mention in the preamble portion in the grounds of detention that the person sought to be detained was a 'goonda, bootlegger, forest-offender etc.', will it amount to pre-judging the issue, on which ground alone prevention orders will have to be struck down
17. Mr. B. Sriramulu, learned Public Prosecutor representing the respondents, submitted that the impugned orders in the present petition as well as in H.C.P. No. 34 of 1994 do contain the satisfaction of the detaining authority, not only about detenus concerned being goondas but also about the need to detain them, to prevent them from acting in any manner prejudicial to the maintenance of public order. He pointed out, that the judgment of the Supreme Court in Veeramani v. State of Tamil Nadu, 1994 SCC (Cri) 482 does not appear to lay down any proposition as sought to be projected by the Division Bench, in H.C.P. No. 34 of 1994.
18. To answer the two questions referred to the Full Bench, it will be necessary to look at the definition of 'Goonda' under Section 2(f) of the Act and read it in conjunction with Section 2(a)(iii) which defines 'acting in any manner prejudicial to the maintenance of public order'. In this backdrop, reference will have to be made to Section 3 of the Act, which relates to conferment of power on the State Government or certain categories of officers, to make preventive orders against certain persons. Section 2(f) of the Act reads as hereunder :
'(f) 'goonda' means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860).'
Section 2(a)(iii) reads as follows :
'2. Definitions. - In this Act, unless the context otherwise requires, -
(a) 'acting in any manner prejudicial to the maintenance of public order', means -
(i) x x x
(ii) x x x
(iii) in the case of a goonda, when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order;'
Section 3(1) reads as hereunder : 'The State Government may, if satisfied with respect to any bootlegger or drug-offender or forest offender or goonda or immoral traffic offender or slumgrabber 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.'
19. A perusal of Section 2(a) under the several sub-divisions clearly projects that irrespective of a persons being a bootlegger or drug-offender or a forest-offender or a goonda or an immoral traffic offender or a slumgrabber, when such person is engaged or is making preparations for engaging in any of his activities as a bootlegger, drug-offender, forest offender, goonda, immoral traffic offender or a slumgrabber, it would mean that such person was acting in a manner prejudicial to the maintenance of public order. So far as Section 2(a) is concerned, there is no distinction sought to be made as far as activity prejudicial to the maintenance of public order is concerned. As to when exactly public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely, the answer is found in the explanation appended to S. 2(a).
20. For a moment, keeping aside from our consideration Section 2(f)2(f) of the Act, which defines 'goonda', under Section 3(1) of the Act powers to make orders of detention are available with respect to all such categories of offenders, if the State Government was satisfied that with a view to prevent such offender from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order directing that the said person be detained.
21. It is, therefore, apparent that the object sought to be achieved in passing orders of preventive detention, in respect of any category of offenders, is to prevent such persons from acting in any manner prejudicial to the maintenance of public order. In other words, if a person, in the opinion of the detaining authority, belonged to one or other of the categories of offenders mentioned in Tamil Nadu Act 14 of 1982, a preventive order can be validly passed, if the authority concerned was satisfied that with a view to prevent such person from acting in any manner prejudicial to the maintenance of public order, a preventive order under the Act had to be necessarily made.
22. Now, we will refer to Section 2(f) of the Act, which defines a goonda. We have already extracted the said section. Under the Act, a goonda is a person, who, either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code. While defining other categories of offenders, it appears that the concept of habitual commission has not been introduced. This 'habit' appears to have been restricted to a 'goonda' alone.
23. The next question to be considered is the manner in which subjective satisfaction is arrived at leading to passing of preventive orders based on the grounds of detention, which obviously form the foundation. The sponsoring authority forwards to the detaining authority all the materials collected during investigation of a crime, to facilitate application of mind by the detaining authority to decide the need or otherwise of passing a preventive order. Merely because a person is a bootlegger, drug-offender, forest-offender, goonda, immoral traffic offender or a slumgrabber falling within the definition under Act 14 or 1982, it will not be necessary to detain him preventively, unless the detaining authority arrives at his subjective satisfaction on the need as contemplated under section 3(1) of the Act. Wherever, in the opinion of the detaining authority, punitive law would be sufficient to deal with the offender, recourse to preventive law is not resorted to. Therefore, after arriving at an opinion that the person concerned belongs to one or other of the categories of offenders mentioned in the Act, the detaining authority has to further consider the insufficiency of the normal law to prevent such offenders from engaging themselves in activities prejudicial to the maintenance of public order.
24. Once the material collected during investigation is placed before the detaining authority, on perusal of the same carefully, it will be possible for him to arrive at a conclusion, if the offender concerned belonged to one or other of the categories defined under the Act. Once the conclusion stood arrived at, that a person fell under the definition of one or other of the categories of offenders, contemplated under the Act, then only the process contemplated under section 2(a) read with Section 3 of the Act comes into operation.
25. We are now concerned in this Habeas Corpus Petition with a goonda. There cannot be a divergent note that 'habit' in commission of offences punishable under Chapters mentioned in the Section will be an essential ingredient, before holding a person to be a goonda. Let us pose a question whether the law requires that a detailed preliminary enquiry will have to be made before the detaining authority chooses to hold a person to be a goonda, on the material placed before him. In other words, does it require a formal issue framing and recording of a finding, before arriving at a conclusion that a person was a goonda, though enough material was available for formation of such an opinion. Our answer is an emphatic 'No'. The process of arriving at the subjective satisfaction to detain any person under any of the categories under the Act, is a mental process. After the detaining authority is satisfied in such process, based, of course, on material placed before him, that a person is a goonda who needed to be preventively detained, then the declaration is made in the form of an order, which has its foundation on the grounds, which are made ready, on the totality of material, placed for consideration by the detaining authority. All that apparent from the grounds, need no special or separate recording, about habit. If the detaining authority is not able to arrive at a conclusion that a person fell within any of the categories of offenders contemplated under the Act, the second stage does not arise.
26. It will be odd, in our opinion, to hold that in the event of the preamble portion of the grounds of detention indicating that the person sought to be detained was a goonda, or any other category of offender, contemplated under the Act, there was a pre-judging of the issue on the part of the detaining authority. Let us take an example. Most often, after hearing appeals or revisions, as the case may be, Courts commence their orders stating 'we are of the opinion that this appeal or revision is bound to be allowed and here are our reasons therefor' or 'this appeal or revision has no merit, whatever, and deserves to be dismissed for the following reasons'. By usage of such words, can it be said that Courts had pre-judged the ultimate result even without application of mind To reiterate, application of mind is a mental process and the writing of an order is the consequent declaration. The order of detention and the grounds of detention will have to be read together, while scrutinising if the orders of detention, fell within the mandates contemplated under Act 14 of 1982.
27. The Division Bench, while disposing of H.C.P. No. 34 of 1994 has placed absolute reliance on the law laid down by the Supreme Court in Veeramani v. State of Tamil Nadu. 1994 SCC (Cri) 482. We have already noticed the submission of the learned Public Prosecutor that the Supreme Court does not appear to have laid down any principle in Veeramani's case 1994 SCC (Cri) 482 as sought to be projected by the Division Bench. It will, therefore, be necessary to carefully look into the law laid down in Veeramani's case 1994 SCC (Cri) 482. That was also a case of a goonda. As has been extracted by the Supreme Court, after referring to the subject, it was mentioned in the detention order thus :
'Thiru Veeramani, male, aged 35, S/o Kalappan, No. 28/1, Ayodhiyakuppam, Madras-5 is a Goonda. He has come to adverse notice in the following cases'.
Six adverse crimes stood listed thereafter. After such listing, all that stood referred in the grounds, extracted by the Supreme Court, reads as follows :
'In paragraph 3, reference is made to the occurrence on February 10, 1993. It is stated that on February 10, 1993 a special police party headed by the Inspector of Police, Law and Order, along with a police party consisting of a number of constables was constituted for the purpose of apprehending the petitioner and his associates connected with Crime No. 288 of 1993 of K.K. Nagar Police Station under sections 148, 341, 302 and 506(ii) IPC and also in connection with Crime No. 237 of 1993. On February 11, 1993 at about 3 p.m. the aforesaid special police party proceeded to Ayodhiyakuppam, Madras, to apprehend the petitioner and others. While they were so proceeding, the petitioner and his associates shouted at them and when the police party surrounded the petitioner and his associates to apprehend them, the members of the police party were challenged and were attacked and the petitioner aimed a cut on the head of the Inspector with a patta knife but which fell on his left forearm causing a bleeding injury and similarly some of the associates of the petitioner inflicted injuries on the constables and stones were pelted against them which caused injuries. However, they were apprehended but the petitioner threatened the general public and thereby instilled a sense of fear and panic in their minds. Some more details of the crime were mentioned and finally it was concluded that from this material, the authority was satisfied that the petitioner and his associates acted in a manner prejudicial to the maintenance of public order.'
Then paragraph 4 of the grounds therein read thus :
'I am aware that Thiru Veeramani is now in remand, he is likely to file a bail application and come out on bail. I am also aware that bail is usually granted by the courts in such cases and hence there is imminent possibility that he will come out on bail. If he comes out on bail, he is likely to indulge in such further illegal activities in future which will be prejudicial to the maintenance of public order ....'.
28. While considering the submissions made by petitioner's counsel therein, after extracting Section 2(f)) and Section 3 of Act 14 of 1982, the Supreme Court stated thus :
'It can therefore be seen that at first the authority must be satisfied that the person comes within the meaning of 'goonda'. The relevant part of the grounds which is noted above would show that the petitioner Veeramani has come to adverse notice in the six cases mentioned. Then thereafter as required under section 3(1) of the Act, the detaining authority must satisfy himself that it is necessary to detain such a person. The detaining authority in paragraph 3 has mentioned that the two incidents and the attack on police party by the petitioner and his associates on February 11, 1993 certainly affected the maintenance of public order. Therefore it cannot be said that the activities mentioned in the grounds are not prejudicial to the maintenance of public order.'
29. Again, the Supreme Court, in paragraph 9 of the judgment in Veeramani's case 1994 SCC (Cri) 482 stated as hereunder :
'The grounds further disclose that the serious incidents of February 10, 1993 and February 11, 1993 alone formed the grounds of detention. The earlier incidents were only referred to for showing that the detenu has been indulging habitually in committing offences and to that extent all the FIRs have been referred to and the copies of the same have been supplied to the detenu and the copies of statement under section 161 and the connected materials which were simply placed before the detaining authority and which were looked into to verify whether the contents of the FIR were substantial, cannot be held to be the real material forming the basis of the grounds as mentioned above. Under the Act, the authority must be satisfied that the detenu comes within the meaning of 'goonda'. No doubt even as against that the detenu has to make his representation stating how he does not come within the meaning of 'goonda'. To that extent he has been put on sufficient notice by referring to the FIRs in six consecutive cases which could show that he has been habitually indulging in offences and which by themselves form sufficient material to show that he comes within the meaning of 'goonda'. Even otherwise the non-supply of the statement under Section 161 etc., which are only in support of the contents of FIRs did not cause any prejudice to the detenu and as a matter of fact while making the representation the detenu did not ask for any such document.'
These observations of the Supreme Court, in our opinion, clearly indicate, that the adverse cases mentioned, in the grounds, portray the habit, and they stood referred to, for under the Act the authority must have to be satisfied, that the detenu came within the meaning of 'goonda'. It was in that context, the Supreme Court stated that the authority must first be satisfied that the person sought to be detained comes within the meaning of one of those categories, namely, bootlegger, goonda and immoral traffic offender, and thereafter, as required under section 3(1) of the Act, the detaining authority must have to satisfy himself that it was necessary to detain such a person. Nowhere, the Supreme Court has stated that, if in the preamble portion of the grounds the person sought to be detained stood christened as a goonda or otherwise, that would amount to pre-judging the issue.
30. We deem it necessary, to extract in the form of a tabular statement, the grounds of detention in Veeramani's case (1994 SCC (Cri) 482), in H.C.P. No. 34 of 1984 and in the instant Habeas Corpus Petition :
------------------------------------------------------------------------ Veeramani's case H.C.P. No. 34 of 1994 Instant H.C.P. (HCP No. 48 of 1994) ------------------------------------------------------------------------ After referring to After referring to After referring to the subject, it was the subject, the the subject, the mentioned thus : order reads : grounds read as follows : Thiru Veeramani, Thiru Velayutham Thiru Arumugam, male, male, aged 35, alias Velu alias aged 43, S/o Subbaraya s/o Kalappan, Ravi alias Kumar aged Chetti No. 34, No. 28/1, 27, S/o Kothandaraman Mariammakoil St., Ayodhiyakuppam, alias Ravichandran, Vikravandi, Villupuram Madras-5, is a Goonda. No. 2 Pillaiyarkoil Taluk, South Arcot He has come to adverse Street, Perambur, District, wanderer in notice in the Madras, is a goonda. Madras City, is a following cases. He has come to Goonda. He has come adverse notice in the to adverse notice in List of six adverse following cases. the following cases. cases given. Four adverse crimes Five adverse cases have been listed. have been listed. ------------------------------------------------------------------------ In paragraph 2 of the grounds, it is just mentioned, in all these cases, that the detention orders had been made against the detenus concerned, under section 3(1) of Tamil Nadu Act 14 of 1982. Then, in all the three cases, details of the ground crimes are stated. Following paragraphs are as follows : ------------------------------------------------------------------------ Veeramani's case H.C.P. No. 34 of 1994 Instant H.C.P. (HCP No. 48 of 1994) ------------------------------------------------------------------------ In paragraph 4, the Paragraph 4 reads Paragraph 4 of the following statement as follows : grounds reads as was made by thefollows : detaining authority : 'I amaware that 'I am aware that 'I am aware that Thiru Veeramani is Tr. Velayutham @ Velu Thiru Arumugam is in now in remand, he @ Ravi @ Kumar is in remand and there is is likely to file remand and there is imminent possibility a bail application imminent possibility that he may come out and come out on that he may come out on bail for the bail. I am also on bail for the offences under aware that bail is offences under Sections 341, 332, usually granted by Sections 341, 392 392, 394, 397 and the courts in such r/w 397, 336 and 506(ii) 506(ii) IPC by filing cases and hence IPC by filing bail application in there is imminent bail application in the Court. If he comes possibility that the Court. If he out on bail, he will he will come out comes out on bail, indulge in further on bail. If he he will indulge in activities which will comes out on bail, further activities be prejudicial to the he is likely to which will be maintenance of public indulge in such prejudicial to the order .........' further illegal maintenance of public activities in order ..........' future which will be prejudicial to the maintenance of public order .......'
We further find that in the instant Habeas Corpus petition as well as in H.C.P. No. 34 of 1994, the detaining authority, who is the same, has further stated as follows :
'Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities which are prejudicial to the maintenance of public order. However, I am satisfied that in view of his antecedent activities which are proximate in point of time, there is a compelling necessity to detain him in order to prevent him from indulging in acts which are prejudicial to the maintenance of public order, under Tamil Nadu Act 14 of 1982.'
It is apparent that the Supreme Court had not found any fault with the grounds of detention in Veeramani's case 1994 SCC (Cri) 482 which is in pari materia with the grounds of detention in H.C.P. No. 34 of 1994 and the instant Habeas Corpus Petition, as is evident from the extracts we have made above. That the subjective satisfaction, on the basis of Sections 2(f), 2(a)(iii) and 3(1) is complete, is also evident from the grounds of detention. It is clear that 'habit' contemplated under section 2(f) of the Act, can easily be discerned from the adverse cases which led to the detaining authority labelling the detenu herein as a goonda.
31. In Subbiah v. The Commissioner of Police, Madras City 1993 Mad LW (Cri) 113, a Division Bench which considered the object of the Act in conjunction with the definition of 'goonda' under Section 2(f) of the Act stated as follows :
'The definition of 'goondas' refers to the habitual commission or attempt to commit or abetment of the commission of offences specified in the section. When a person is found to be a goonda it goes without saying that he is a person who habitually commits or attempts to commit or abets commission of offences. Hence it is not necessary further for the authority to wait for his committing another act which is likely to cause prejudice to the maintenance of public order. If the facts and circumstances placed before the authority are sufficient to enable him to arrive at the conclusion that he is a goonda then those facts and circumstances are sufficient to consider the second question also as to whether such acts will cause prejudice to the maintenance of public order. The object of the Act is to prevent the person concerned to act in a manner prejudicial to the maintenance of public order. It would be futile to contend that the authority should wait till he acts in such a manner. In that case it will not be preventive detention but a case of detention after the commission of the offence. Hence a reading of Section 3(1) together with Section 2(a) and (f) of the Goondas Act makes it clear that if the commission of offences is sufficient to brand a person as a goonda within the meaning of Section 2(f) they can themselves be taken into account for considering the question whether he is acting in a manner prejudicial to the maintenance of public order.'
The Division Bench went on to add as follows :
'As stated already in this case facts disclose that there were relevant materials before the authority concerned for him to arrive at a subjective satisfaction. The detention order not only refers to the two incidents earlier mentioned but also to the statement of confession made by the petitioner before the Inspector of Police. A perusal of the statement of confession shows that he admitted having committed the offences in question besides having committed some other offences. Learned counsel for the petitioner contends that the admission relating to the other offences would also show that he is a bootlegger but there was no proof that he is a goonda. It is not necessary for us to consider the same as no reliance is placed by the detention order on the statement relating to other offence. It is seen that the petitioner has admitted the two offences mentioned in the detention order. That would show that the officer had materials to decide that he was a goonda .......................... The next limb of the argument is that there is no registered case with regard to the other offences as gainst the petitioner. Though it is not necessary for the purpose of this case to consider the said objection, we hold that there is no substance in this objection. What is relevant for the purpose of goonda is only commission of offences and not registration of cases. If the materials before the authority prove that the person concerned had habitually committed offences or attempted to commit the same or abetted commission of the same that would be sufficient to show that he is a goonda and the fact that cases were not actually registered against him would not in any way be material.'
32. In Lakshmi v. The Commissioner of Police, Egmore, Madras, 1985 Mad LW (Cri) 165 1986 Cri LJ 401 , another Division Bench of this Court, while construing Section 2(a)(iii) and Section 3 of the Act in the case of a goonda, stated as follows (at p. 404 of Cri LJ) :
'In other words, the detaining authority has to first find out whether a person is a goonda or a bootlegger, or a drug-offender or a slum grabber in the first instance and if he wants to detain any of them, he has to find out whether that person has acted in any manner prejudicial to the maintenance of public order. The detaining authority has therefore to enumerate certain cases or instances to show that the person who is to be detained as a goonda under the Act is a person who by himself or as a member or a leader of a gang, has habitually committed offences or has attempted to commit or has abetted the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.
Bearing this in mind, if we refer to the instances or the cases that have come to the adverse notice of the detaining authority, it will be found that the petitioner's husband was convicted of offences under sections 457, and 380, I.P.C. on 31st July, 1984 under Section 380 I.P.C. read with Section 75, I.P.C. on 31st December, 1976 and was also involved in a case of the year 1978 under Section 392 read with Section 34, I.P.C. and in another case under section 392, I.P.C. of the year 1979. He was also involved in a case under section 457 and 380, I.P.C. of the year 1979 and also in a case under sections 457 and 380, I.P.C. of the year 1980 and was convicted on 31st July, 1981 under section 394 and 397, I.P.C. and sentenced to rigorous imprisonment for seven years. As it has to be shown that the petitioner's husband was a habitual offender committing offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, the detaining authority has to necessarily enumerate a number of cases for a long period, as a single act cannot be characterised as habitual act. Moreover, the cases that come to adverse notice of the detaining authority cannot be solitary or isolated acts, but must be part of a course of conduct of such or similar activities. It is from these instances the detaining authority has to arrive at the satisfaction that the detenu is a habitual offender and therefore a goonda. These cases are only cases of breach of law and order and do not disturb public order. These cases are enumerated only to show that the detenu is a goonda. The ground on which the detention has been made shows that the goonda was engaged in an activity which has affected adversely the maintenance of public order.'
33. In the matter of detenu Thalapathi, Deniel v. State of Tamil Nadu, 1985 Mad LW (Cri) 281, another Division Bench of this Court, while considering the requirements under section 2 and 'acting in any manner prejudicial to the maintenance of public order', stated that the status of a person being a goonda has nothing to do with the formation of the subjective satisfaction of the detaining authority that the detenu was engaged in acts which would affect maintenance of public order. Expatiating the same, the Division Bench stated :
'Thus, it may be seen that Section 2 of the Act deals with two distinct aspects of the matter.
Instances 1 and 2 contained in the detention order have a bearing upon the status of the detenu as a goonda. They have nothing to do with the formation of the subjective satisfaction of the second respondent that the detenu is engaged in committing acts which will affect the maintenance of public order. Instances 1 and 2 have relevance only to the detenu being classified as a goonda under section 2(f) of the Act. Having once reached that conclusion, the further question which would fall for consideration is whether the ground on which the detenu has been detained constitutes an act which would adversely affect the maintenance of public order. In other words, the position will be whether a habitual offender has committed or is about to commit an offence which will have an adverse impact on the public order.'
It is therefore clear that adverse cases mentioned in the grounds denote 'habit' which had passed through the process of subjective satisfaction of the detaining authority, before the declaration was made in writing, that the person concerned was a goonda.
34. In Dhananjoy Das v. Dist Magistrate : 1982CriLJ1779 while considering a detention order, under section 3, National Security Act, 1980, the Supreme Court had occasion to consider the effect of paragraph 1 of grounds of detention, which was by way of introduction or a preamble. In that context, an observation was made, that the grounds of detention may have to be read as a whole and not in a truncated pattern.
35. Again in District Magistrate, Now Gong v. Sarat Mudoi : 1983CriLJ1728 while considering a detention under National Security Act, 1980 in which there was no specification as to whether supply or services stood affected by detenu's activities, the Supreme Court observed as hereunder (at p. 1729 of Cri LJ) :
'It is manifest from the statutory scheme that his right to represent is after the grounds are served on the detenu ........... The detenu would be in a position to effectively represent only when specific particulars are provided to him and the grounds are intended to provide that material to him. Mr. Tarkunde who appeared amicus curiae fairly agreed that it is not necessary that the specification should be in the order of detention and it would he adequate to enable the detenu to make an effective representation if the particulars are provided in the grounds of detention. We are inclined to take the view that a full disclosure made in the grounds in no way prejudices the right guaranteed to the detenu to make an effective representation challenging his detention. Therefore, non-specification of the required particulars in the order of detention would not vitiate the order as long as the particulars are provided in the grounds in support of the order of detention which in quick succession of the detention order are served on the detenu.'
In the instant case since we are concerned with different categories of offenders, which do not stand contemplated under that Act, it may be necessary to mention in the order of detention, as to the category under which the person sought to be detained would fall. Of course, the grounds would contain the factual constituent, which led to the arrival of subjective satisfaction. There cannot be a second opinion, that the order of detention and the grounds of detention will have to be read as a whole, for the ultimate object is to facilitate the detenu, in making an effective and purposeful representation, challenging the impugned order. In this context, it will be apt to refer to the observations of the Supreme Court in Dhananjoy Das v. Dist. Magistrate, : 1982CriLJ1779 :
'If the basic facts have been given in a particular case constituting the grounds of detention which enable the detenu to make an effective representation, merely because meticulous details of facts are not given will not vitiate the order of detention. We have meticulously examined paragraphs 2 and 3 of the grounds of detention and we are satisfied that basic facts have been given to enable the appellant to make an effective representation. Of course, it should have been better if other minute details had also been given.'
Even on the law laid down in Veeramani's case 1994 SCC (Cri) 482 it is clear that adverse cases are those which have relevance only to the detenu being classified as a goonda under Sec. 2(f) of the Act. Once the detenu stood classified as a goonda, it pre-supposes that habit had gone into the arrival of subjective satisfaction, for the adverse cases as well any other relevant material almost always stand furnished to the detenu. If in a given case, the detenu concerned desires to challenge that there was lack of material labelling him as a goonda, it will always be open to him to make an effective representation, on the basis of the materials supplied to him, before the authority concerned or the Courts. In the event of non-supply of documents, which are the basic requisites to arrive at the subjective satisfaction, that the person concerned is a goonda, of course, the order of detention would stand vitiated on the ground of non-supply of such material. That question is not within the purview of the reference made to the Full Bench.
36. We agree with the observations of the referring Bench that the grounds of detention will have to be read as a whole and not in a truncated pattern, for substance is more important than the mere form. Our answers to questions referred, are as follows :
Question No. 1 : In view of contemplation of different categories of offenders who could be preventively detained under Tamil Nadu Act 14 of 1982, it will be necessary to indicate in the order of detention that the person sought to be detained fell under one or other of the categories contemplated under the Act.
Question No. 2 : If the detaining authority had chosen to mention in the preamble portion of the grounds of detention that a person sought to be detained was a goonda, bootlegger, forest offender etc., it will not amount to pre-judging the issue and on that ground, preventive orders cannot be struck down.
37. In the result, we hold that the ruling in H.C.P. No. 34 of 1994 (Velayutham alias Velu v. State of Tamil Nadu & another) (order dated 27-6-1994), is not good law. The same is overruled.
38. Now this Habeas Corpus Petition will go before the Division Bench for disposal in accordance with law, since other contentions also appear to have been raised.
Final order by Division Bench
Arunachalam, J.
39. This Habeas Corpus Petition was heard on 4-7-1994 in detail and on one of the grounds raised, we felt that the decision of a Full Bench would be required, since we were not in agreement with the view taken by another Division Bench in H.C.P. No. 34 of 1994 (order dated 27-6-1994). The question was whether a preventive order had to be necessarily struck down if, in the preamble portion of the grounds of detention, a person sought to be detained was christened as a goonda, bootlegger, forest offender etc., on the ground that it would amount to pre-judging the issue. The Full Bench was also required to offer its decision whether in the order of detention indication will have to be made that the person sought to be detained fell under one or other of the categories contemplated under Tamil Nadu Act 14 of 1982. In answer to these two questions, the Full Bench expressed its opinion on 7-7-1994 in the following manner :
'Question No. 1 : In view of contemplation of different categories of offenders who could be preventively detained under Tamil Nadu Act 14 of 1982, it will be necessary to indicate in the order of detention that the person sought to be detained fell under one or other of the categories contemplated under the Act.
Question No. 2 : If the detaining authority had chosen to mention in the preamble portion of the grounds of detention that a person sought to be detained was a gooda, bootlegger, forest offender etc., it will not amount to pre-judging the issue and on that ground, preventive orders cannot be struck down.'
40. After offering its opinion on the two questions placed for its consideration, the Full Bench directed this Habeas Corpus Petition to go before us, the original Division Bench, for disposal in accordance with law, since some other contentions also appeared to have been raised.
41. In pursuance thereof, when this Habeas Corpus Petition was listed before us on 12-7-1994, there was no representation on behalf of the petitioner. Not wanting an opportunity to be denied to the petitioner, to put forth his submissions, we had it listed on the next day. It did not reach for hearing and today, when this matter was taken up, petitioner's counsel has chosen to absent himself. The reason is not far to seek, for the impugned order has worked itself out by efflux of time. To recapitulate, this preventive order was passed on 9-7-1993 and its life ended on 8-7-1993. In spite of such expiry, in fairness, petitioner's counsel who had raised certain grounds before us on 4-7-1994 ought to have been present before us after verdicting by the Full Bench for proper and effective disposal of this Hebeas Corpus Petition. Though he has not done so, for completion, we intend stating the grounds urged by petitioner's counsel on 4-7-1994 and answering them.
42. We see no need to state the facts in detail which led to the passing of the impugned order, for the Full Bench has narrated the same in extenso.
43. The first ground was that approval of the impugned order was not made within the statutory period and further the meeting of the Advisory Board was also not within the time-schedule fixed by the Act. Learned Additional Public Prosecutor brought to our notice that the impugned order was approved on 17-7-1993 and the Advisory Board had its deliberations on 21-8-1993, both of them within the time-schedule fixed under the Act. Apparently, this ground has no strength.
44. The next submission was that material papers supplied to the detenu were not indexed. It appears to be so. Merely because the paperbook was not indexed, we cannot infer prejudice to the case of the detenu, unless the detenu is able to explain the manner in which he had been prejudiced and its nature and extent. That had not even been attempted.
45. It was urged that pages, 5, 9, 29, 52 and 60 to 70 were illegible. We have perused those pages and we are not able to agree that they are illegible. They are clear and readable.
46. The next ground was that the family members of the detenu were not informed about the impugned order and the jail in which the detenu stood confined. We find that soon after detention, a representation was sent on behalf of the detenu within a short period and therefore this ground cannot enure in favour of the petitioner.
47. It was then submitted by petitioner's counsel that the detenu was involved only in five prior crimes before he got himself involved in the ground crime and that would not suffice to hold him as a goonda. On the material placed before him, the detaining authority had correctly arrived at the subjective satisfaction that the detenu was a goonda. This question has also been noticed by the Full Bench.
48. All these grounds are rejected. No other ground was raised. This Habeas Corpus Petition, which has no merit, shall stand dismissed.
49. Petition dismissed.