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CASE NO.: Appeal (crl.)  698 of 2006

PETITIONER: R. Kalavathi                                                     

RESPONDENT: The State of Tamil Nadu and Ors.                         

DATE OF JUDGMENT: 03/07/2006

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising out of S.L.P .(Crl.) No.1711/2006)

ARIJIT PASAYAT, J.                        Leave granted.  

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Madras High Court dismissing the  Habeas Corpus Petition filed by the appellant seeking release  of Rathina Raj @ Rathnavel Pandian (hereinafter referred to as  the ’detenu’), who was detained under Section 3(1) of the   Tamil Nadu Prevention of Dangerous Activities of Bootleggers,  Drug Offenders, Forest Offenders, Goondas, Immoral Traffic  Offenders, Slum Grabbers and Video Pirates Act, 1982 (in  short the ’Act’) as a "Goonda". The accusation against him was  to the effect that he is habitually committing crime and that he  had also acted in a manner prejudicial to the maintenance of  public order and as such he is a "Goonda" as defined under  Section 2(f) of the Act.

       The order of detention was passed in respect of Rathina  Raj, which was approved by the State Government. The  detention order was challenged by filing a Habeas Corpus  petition before the Madras High Court.  

Before the High Court primarily the following grounds  were urged:

(1)     There is discrepancy in the case numbers and  the detaining authority was not supplied with  material documents; (2)     The translated copy supplied to the detenu in  Tamil language was different from what was  supplied in the English language and there  were several defects. That being so, the detenu  was not in a position to make an effective  representation; (3)     Relevant and material documents were not  placed before the detaining authority and were  also not supplied to the detenu and as such he  was prevented from making an effective  representation;  (4)     Sufficient material was not placed before the  detaining authority to pass the order of  detention which was passed mechanically.

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The High Court noticed that there were some differences  between the English version and the Tamil version. But those  were considered to be too trivial to affect the order of  detention. The other grounds were also not accepted.

In support of the appeal, Mr. Jayant Bhushan learned  senior counsel submitted that at least two documents clearly  show that the records were manipulated. Additionally, for  being labelled as a Goonda under the Act, the definition of  ’"Goonda" under Section 2(f) of the Act is relevant. The  grounds of detention referred to only one incident and there is  no material to show that the detenu was habitually  committing crime.  

In support of the order of detention and the order of the  High Court, learned counsel for the State submitted that it is  fairly well settled that it is the impact of an act and not the  number of acts which determine whether the act can be  relatable to public order or not. In the instant case, the  scenario as described in the grounds of detention clearly  shows that the acts committed by the detenu were of such  intensity that even tempo of life was affected and public  tranquility was disturbed. Therefore, according to him, the  detenu has rightly been detained.  

Though reference was made by learned counsel for the  appellant to several documents to contend that the records  were manipulated, we do not consider it necessary to go into  that aspect, because in our considered view the order of  detention is liable to be quashed on the other ground as  submitted by learned counsel for the appellant i.e.   absence of  materials to show that the detenu was habitually committing  offences.  

Section 2(f) of the Act reads as follows:         "xx             xx              xx              xx (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 offence, punishable  under Chapter XVI or Chapter XVII or Chapter  XXII of the Indian Penal Code (Central Act XLV  of 1860)."

                                       (underlined for emphasis)

A bare reading of the provision makes the position clear  that in order to attract action in terms of Section 3(1) of the  Act, the detenu must be one who is a "Goonda" as defined  under Section 2(f) of the Act. Though in other preventive  detention laws, even a single act which has the propensity of  affecting even tempo of life and public tranquility would be  sufficient for detention, being prejudicial to maintenance of  public order. For the purpose of the Act the detenu has to be a  "Goonda" as defined under Section 2(f) of the Act.                    Habitual : The meaning of the words "habit" and  "habitually" as given in the Advanced Law Lexicon (3rd Edn.)  by P. Ramanatha Aiyer is : "Habit \026 settled tendency or   practice, mental constitution.  The word ’habit’ implies a  tendency or capacity resulting from the frequent repetition of  the same acts. The words by ’habit’ and ’habitually’ imply  frequent practice or use. "Habitual \026 Constant; customary;  addicted to a specified habit".  The Court in Vijay Narain Singh

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v. State of Bihar (1984 SCC (Crl.) 361), considered the  question of a habitual criminal and in para 31 the expression  "habitually" was explained as follows: "The expression  ’habitually’ means ’repeatedly’ or ’persistently’.  It implies a  thread of continuity stringing together similar repetitive acts -   repeated, persistent and similar, but no isolated, individual  and dissimilar acts are necessary to justify an inference of  habit".  The expression "habitual" would mean repeatedly or  persistently and implies a thread of continuity stringing  together similar repeated acts. An isolated default of rent  would not mean that the tenant was a habitual defaulter.   (See: Vijay Amba Das Diware and Others v. Balkrishna  Waman Dande and another. (2000 (4) SCC 126).

       The expression "habit" or "habitual" has not been defined  under the Gujarat Prevention of Anti Social Activities Act,  1985. The word ’habitually’ does not refer to the frequency of  the occasions but to the invariability of a practice and the  habit has to be proved by totality of facts. It, therefore, follows  that the complicity of a person in an isolated offence is neither  evidence nor a material of any help to conclude that a  particular person is a "dangerous person" unless there is  material suggesting his complicity in such cases, which lead to  a reasonable conclusion that the person is a habitual criminal.  The word ’habitually’ means ’usually’ and ’generally’. Almost  similar meaning is assigned to the words ’habit’ in Aiyer’s  Judicial Dictionary, 10th Edition, at p.485. It does not refer to  the frequency of the occasions but to the invariability of  practice and the habit has to be proved by totality of facts.  (See Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta,  Commissioner of Police (1995 (3) SCC 237).

       The expression "habitually" is very significant. A person  is said to be a habitual criminal who by force of habit or  inward disposition is accustomed to commit crimes. It implies  commission of such crimes repeatedly or persistently and  prima facie there should be continuity in the commission of  those offences. (See: Ayub alias Pappukhan Nawabkhan  Pathan v. S.N. Sinha (1990 (4) SCC 552).                  From one single transaction though consisting of several  acts, a habit cannot be attributed to a person.          Judged in the background of legal position delineated  above the order of detention cannot be maintained because it  only refers to one act. There is also no material to justify the  conclusion that the accused was habitually committing crime.  There is no reference to any other crime. Therefore, the order  of detention cannot be maintained.  The High Court has not  considered this aspect in the proper perspective. The order of  detention in respect of the detenu which was passed by the  Commissioner of Police, Chennai on 1.8.2005 is quashed.  The  order of the High Court is set aside. Detenu be released from  detention forthwith unless required to be otherwise detained.  

The appeal is allowed.