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CASE NO.: Appeal (crl.)  701 of 1999

PETITIONER: State of T.N. & Anr.  

RESPONDENT: Kethiyan Perumal

DATE OF JUDGMENT: 11/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

[With Crl. A. No.702 of 1999]

ARIJIT PASAYAT, J.

       These two appeals involve identical issues.  The impugned  judgment in Criminal Appeal No. 702 of 1999 has its foundation on the  judgment impugned in Criminal Appeal No. 701 of 1999.   Therefore, the  factual position involved in Criminal Appeal No. 701 of 1999 is  described.

       The State of Tamil Nadu and District Magistrate & Collector,  Vellore District (hereinafter referred to as the ’detaining authority’)  call in question legality of the judgment rendered by a Division Bench  of the Madras High Court quashing the order of detention dated  29.3.1988 passed by the Detaining Authority.                  A Habeas Corpus Petition was filed by the wife of Kethiyan  Perumal (hereinafter described as "the detenu") who was detained under  Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of  Boot leggers, Drug Offenders, Goondas, Immoral Traffic Offenders and  Slum Grabbers Act, 1982 (in short the ’Act’).  The High Court allowed  the Habeas Corpus Petition primarily on the ground that the Detaining  Authority took into consideration extraneous matters while recording  the finding about unlawful activities of the detenu or that it was  highly dangerous to the public order. The High Court distinguished the  decision of this Court in Mrs. U. Vijayalakshmi v. State of Tamil Nadu  and Anr. (AIR 1994 SC 165) which was relied upon by the detaining  authority. Primary stand of the writ petitioner (present respondent)  before the High Court was that though reference was made to Forest  Officer’s report and the same virtually provided the foundation of the  detention, yet there was no mention therein that activities of the  detenu has been highly dangerous to public order. The State resisted  the petition on the stand that in an identical matter reference was  made to the said Forest Officer’s report. This Court in Mrs. U.  Vijayalakshmi’s case (Supra) dealt with the matter in detail and upheld  the detention.  Reliance was placed on Section 5A of the Act to contend  that the grounds are separable and even if one ground indicated in the  order of detention fails, on the residual grounds also a detention can  be maintained.

       The High Court found that though the decision in Mrs. U.  Vijayalakshmi’s case (supra) was with reference to the same report of  the Forest Officer, yet points which were presently urged were not

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taken before the High Court in the earlier case.

       Stand of the appellants is that the High Court accepted the  prayer of the detenu on the ground that the Forest Officer’s report did  not specifically refer to the alleged unlawful activities aspect or  that the impugned acts were highly dangerous to public order. It is  submitted that the conclusion is factually incorrect. It was pointed  out that there was a confession of respondent No. 1 where there was  clear admission about the unlawful activities. In any event the effect  of Section 5A of the Act has not been kept in view by the High Court.

There is no appearance on behalf of the respondent in spite of  service of notice.

The High Court did not take note of the fact that the factual  distinction sought to be brought about by the detenu is not  supportable.  In both Mrs. U. Vijayalakshmi’s case (supra) and the  present case the Forest Officer’s report was common. Effect of the  confessional statement and the background facts have not been taken  note of.

Before we go to the legal aspects involved it would be necessary  to sort out confusion entertained by the High Court. Interference was  done with the order of detention primarily on the ground that the  Forest officer’s report did not anywhere indicate about the effect on  public order aspect. In fact, it clearly mentions that activities of  the detenu prejudicially affected public order. It was specifically  stated as follows:

"The human life is dependent on water, clean  air and healthy agriculture for providing food.  Destruction of sandalwood trees in Vellore District  will seriously affect the availability of these  essential things and cause threat to public life at  large due to destruction of Natural Forest Eco- system.

Hence I feel that we should stop by all means  the indiscriminate felling of trees in Vellore  District in the interest of public because the  ecological system is affected in a manner prejudicial  to the public order."          

The factual mistake, committed by the High Court by observing  that there was no mention regarding activities being highly dangerous  to public order, is not sustainable, in view of the details indicated  and clear mention. It was categorically stated that the destruction of  ecological system would be highly dangerous to public order.  In any  event the effect of Section 5A of the Act cannot be lost sight of. The  High Court was clearly in error in holding that decision in Mrs. U.  Vijayalakshmi’s case (supra) was distinguishable. The decision in Mrs.  U. Vijayalakshmi’s case (supra) clearly applies to the facts of the  case. It is to be noted that in D. Vijayalakshmi case (supra) this  court categorically held that in view of Section 5A of the Act an  extraneous and irrelevant ground does not affect validity of the  detention order as Section 5A was introduced precisely to take care of  such a situation. This Court, inter alia, held as follows:

"The second contention is based on the facts stated  in paragraph 4 of the grounds of detention. It is manifest  from the facts stated in paragraph 4 of the grounds of  detention that the emphasis is twofold: (1) that to profit  from the high price fetched by sandal wood in the open

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market, illicit felling of sandal wood trees is on the  increase, thereby causing widespread danger to the  ecological system and loss of revenue to Government and (2)  that the huge money falling into the hands of tribals makes  them susceptible to drinking and gambling, thereby  converting the poor and innocent tribals into anti-socials.   So far as the first aspect is concerned we find from the  grounds of detention that the detenu was involved in two  similar cases in the past and the impugned order of  detention was passed after he was found to have indulged in  similar activity on 1st May, 1992.  As is clear from the  explanation to Section 2(a)extracted earlier, widespread  danger to the ecological system must be deemed to affect  public order adversely within the meaning of that  expression in Section 2(a) of the Act.  Counsel submitted  that although it is asserted in paragraph 4 of the grounds  of detention that the illicit cutting and removal of sandal  wood trees from the reserved forest area causes widespread  danger to the ecological system and disturbs the delicate  equilibrium thereof, there is nothing on record to show  that this assertion is well founded.  We are afraid we  cannot accept this submission made by the learned counsel  for the detenu.  It is manifest from paragraph 4 of the  grounds of detention that this view was founded on the  opinion of the District Forest Officer, Vellore.  Once it  is found that the ground of detention is one recognized by  sub-section (1) of Section 3 of the Act, it is not for this  Court to probe into the correctness of the alleged facts  since this Court has a limited role in the matter of  examining the validity of the detention order.   

Counsel for the detenu next contended that the second  aspect of paragraph 4 shows that extraneous considerations  weighed with the detaining authority in passing the  impugned detention order.  He submitted that it is too  remote to think that tribals resort to drinking, gambling  and turn anti-socials merely because some extra money falls  into their hands.  Assuming without deciding that this  contention is well founded, we are of the opinion that  Section 5A of the Act takes care of it.  Even if we were to  hold that this ground is extraneous or irrelevant, that  would not affect the validity of the detention order as  Section 5A was introduced precisely to take care of such a  situation.  We, therefore, do not see any merit in the  second contention also."  

The order of the High Court is accordingly set aside.

The impugned judgment in Criminal Appeal No. 702 of 1999 involves  identical issues.   

On both aspects factual as well as legal, in both the appeals,  the High Court’s judgments are not sustainable and are, therefore, set  aside.

The residual question is whether it would be appropriate to  direct the respondent in each case to surrender for serving remaining  period of detention in view of passage of time.  As was noticed in  Sunil Fulchand Shah v. Union of India and Ors. (2000 (3) SCC 409), it  is for the appropriate State to consider whether the impact of the  acts, which led to the order of detention still survives and whether it  would be desirable to send back the detenu for serving remainder   period of detention. Necessary order in this regard shall be passed

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within two months by the appellant \026 State.  Passage of time in all  cases cannot be a ground not to send the detenu to serve remainder of  the period of detention.  It all depends on the facts of the act and  the continuance or otherwise of the effect of the objectionable acts.  The State shall consider whether there still exists a proximate  temporal nexus between the period of detention indicated in the order  by which the detenu was required  to  be  detained  and  the date when  the detenu is  

required to be detained pursuant to the appellate order.

Appeals are allowed.