Janarthanam, J.: One Ponnusamy (petitioner) is the father of the detenu, Kumar. The detenu, it is said, is a goonda. Apart from the ground case, as set out in the grounds of detention he had come to adverse notice in four other cases. The District Magistrate and District Collector, Salem (Second respondent) in exercise of the powers conferred by Sub-sec. (1) of Sec. 3 of the 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) clamped upon the detenu the impugned order of detention in his proceedings in CMP No. 24.Goondas/94 (C2), dated 12.4.1994 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
2. Mr. M.S Ramesh, learned counsel appearing for the petitioner, would press into service the following points for consideration.
(1) The representation dated 28.4.1994 had not been properly considered and disposed of without any avoidable delay and consequently, his right of representation in hearing in him under Art. 22 (5) of the Constitution of India has been greatly affected.
(2) The family members of the detenu had not been informed as respects the place of detention of the detenu within a reasonable time from the date of detention.
(3) The incidents or occurrence relatable to adverse cases covered by serial Nos. 1 to 4 in paragraph 1 of the grounds of detention were pending investigation on 12.4.1994, the date on which the impugned order of detention had been passed and such adverse cases cannot at all be relied upon to brand him as a ‘goonda’ unless and until those cases result in conviction and sentence from competent criminal court.
3. Mr. R. Raghupathi, learned Additional Public Prosecutor would, however, repel such submissions and produce the relevant file perusal and consideration of this Court.
4. From a perusal of the file, we are able to find that the representation dated 28.4.1994 had been received by the first respondent. Government on 2.5.1994 and remarks had been called for on the same day. Remarks so called for had been received on 10.5.1994 The file had been submitted to the concerned section and thereafter, the file had been circulated to the Under Secretary and Joint Secretary on 11.5.1994 After processing the file the same had been submitted to the Minister for Law on 12.5.1994 The Minister for Law, in turn, on consideration of the relevant materials available in the file, however, passed an order rejecting the representation on 12.5.1994 Thus, the representation dated 28.4.1994 had been disposed of within a period of ten days from the date of its receipt which even happened on 2.5.1994, without any avoidable delay at any stage.
5. There is no pale of controversy that the impugned order of detention had been passed on 12.4.1994 One Chinnathayee, the mother of the detenu had been served with the limitation dated 12.4.1994 informing her as to her son being detained in Central Prison, Salem, pursuant to the impugned order of detention and the said intimation had been served by Grade-1 Constable bearing No. 1408 in the presence of two witnesses, viz. Jayakumar and Mani on 13.4.1994 This, we are able to find from the file produced for our perusal and consideration. The files had also been shown to learned counsel for the petitioner and he had also presumed the same. Thus, it is crystal clear that the intimation relatable to the place of detention of the detenu had been made to the blood relation of the detenu a day next to the day of passing of the impugned order of detention without any delay at all.
6. No doubt true, it is, the adverse cases covered by Serial No. 3 in paragraph 1 of grounds of detention was pending investigation and other three cases are either pending trial or committed to Sessions Court for trial as on 12.4.1994, the date on which the impugned order of detention has been passed. As adverted to earlier, learned counsel for the petitioner would submit that the pendency of the investigation or trial of the adverse cases is not sufficient to brand the detenu as ‘goonda’ and what is further required is that, on the date when the impugned order of detention had been passed, the adverse cases could have resulted in conviction and sentence by competent criminal court and until then, such cases cannot at all be relied upon to brand him as a ‘goonda’.
7. In support of such submission, learned counsel for the petitioner relied on the decision in Kumari v. The state of Tamil Nadu, 1998 L.W (Crl.) 117. The Division Bench consisting of S.A Kader and Bellie, JJ considered the judgment of Full Bench of this Court in Rakkamma v. State of Tamil Nadu and others, W.P No. 814 of 1986 order dated 2.5.1986 and expressed,
“. . . we do not say that to brand a person ‘goonda’ proof of convictions are absolutely necessary but we do say that without proof of convictions it will be very difficult to hold a person ‘a goonda’.
8. The aforesaid decision of the said Division Bench came up for consideration in the case of Subbaiah v. The Commissioner of Police, Madras City 1993 M.L.J (Crl.) 480: 1993 L.W (Crl.) 113. In the said decision, one of us (Tangamani, J) was a party. The said Division Bench happened to consider whether the Full Bench decision in Rakkamma's case, W.P No. 814 of 1986 dated 2.5.1986 had been correctly interpreted in Kumari's case by the former Division Bench and in so doing the decision of the Supreme Court in Vijay Narain Singh v. State of Bihar, A.I.R 1988 S.C 1334 had been considered and ultimately expressed in paragraphs 23 and 24 thus:
“Further in that Kumari's case, 1988 L.W (Crl.) 117, it was held that to brand a person as a goonda it is not enough to state that the detenu has committed offences but there should be something more than that. The relevant passage on which reliance is placed reads thus:
“. . . As stated above, we do not say that to brand a person ‘a goonda’ proof of conviction is absolutely necessary but we do say that without proof of conviction it will be very difficult to held a person ‘a goonda’.
9. We are of the view that the proposition has been too widely stated and it runs counter to the judgment of the Full Bench cited before learned Judges in that case. The judgment of the Full Bunch in Rakkamma v. State of Tamil Nadu and others, W.P No. 816 of 1986, dated 2.5.1986 had been brushed aside by the Division Bench with an observation that the question referred to the Full Bench was vague. We are of the view that a judgement of a Full Bench cannot be ignored by a Division Bench. What exactly was decided by the Full Bench should be considered and whatever is the decision it is binding on the Division Bench of this Court.
10. The judgment of the Full Bench has been reported later in Mrs. Rakkamma v. State of Tamil Nadu, 1991 L.W (Crl.) 307. It is categorically held that there was no warrant to hold that a conviction was necessary for classifying a person as goonda under the Goondas Act. The Full Bench overruled an earlier judgement of the Division Bench in W.P No. 8462 of 1985. It was also pointed out that the judgement of the Supreme Court in Vijay Narain Singh's case A.I.R 1984, S.C 1334 did not lay down a proposition that in order to infer habitualness, previous convictions were necessary. The relevant passage in the judgement reads as follows
“Learned Public Prosecutor is correct in her submission that the Tamilnadu Legislature was not unaware of what is meant by ‘a habitual offender’. The Legislature must be attributed every wisdom that is due to it. If with the Act VI of 1948 before it under Sec. 2 (1) of the Tamil Nadu Act 14 of 1982, if it does not insist upon previous conviction for a ‘goonda’ the omission must be held to be deliberate and not unintentional, to import the notions of criminal jurisdiction. In the guise of interpretation the court cannot add on to the legislation, which it has chosen to positively, leave out.”
In view of what has been stated above, the Division Bench decision of this court in Kumari's case, 1988 L.W (Crl.) 117, cannot be stated to have correctly laid down the law on the subject.
11. As usual reference can also be made at this juncture to a Division Bench of this Court in the case of Phoola v. State, 1985 L.W (Crl.) 363. The relevant portion, which is necessary for our present purpose occuring in paragraph 3 at page 365 may be referred to and it reads thus:
“It may be seen from this definition that in order to consider a person as ‘goonda’ it was not necessary for a conviction in one or more of the cases. We have already held in a series of cases that, if a person is charged for an offence and that is pending in a court or pending investigation, that could be taken into account for considering whether a person is a ‘goonda’ or not for the purpose of the Act. Since there is an earlier instance in Crime No. 779/83 in which the petitioner had come for an adverse notice, the detaining authority was well within his jurisdiction on invoking the provisions of Sec. 3 in order to detain him”
12. Thus, it is clear that to brand a person as ‘goonda’ it is not necessary for him to have a conviction in one or more of the cases and it is sufficient if such a person is charged for an offence of such a nature and the same is pending in court or pending investigation and that could be taken into account for branding his as ‘goonda’.
13. For the reasons as above, the habeas corpus petition deserves to be dismissed and the same is accordingly dismissed.