Subash v. The Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 29.07.2015

CORAM:

THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.1071 of 2015 Subash S/o.Ranganathan .. Petitioner/Son of the detenue Vs 1.State represented by The Secretary, Government of Tamil Nadu, Home, Prohibition & Excise Department, Fort St.George, Chennai - 600 009.

2.The District Collector, Cuddalore District, Cuddalore - 1.

3.The Inspector of Police, Virudhachalam Circle, Virudhachalam, Cuddalore District - 600 001.

.. Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling for the records of the second respondent in Na.Ka.No.C3/D.O./7/2015 dated 20.03.2015 and quash the same and thereby direct the respondents to produce the mother of the petitioner namely Tmt.Jothi, aged about 62 years (detenue) now detained at Special Prison for Women at Vellore, before this Court and set her liberty. For Petitioner :

Mr.G.Anabayachozhan For Respondents :

Mr.M.Maharaja Additional Public Prosecutor

O R D E R

[Order of the Court was made by S.TAMILVANAN, J.] Challenge is made to the order of detention passed by the

second respondent vide Proceedings in Na.Ka.No.C3/D.O./7/2015 dated 20.03.2015, whereby the detenue, by name, Jothi W/o.Ranganathan, aged about 62 years, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "Drug Offender".

2. Though many grounds have been raised in the petition, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of non-supply of copy of the bail application in the similar case, referred to in the grounds of detention, for arriving at the subjective satisfaction that there is likelihood of the detenue coming out on bail, which has affected the constitutional right of making an effective and purposeful representation to the authorities concerned, thereby vitiating the detention.

3. Per contra, the learned Additional Public Prosecutor would submit that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. However, he submitted that the copy of the bail application in the similar case, referred to in the grounds of detention was not supplied to the detenue.

4. We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and thoroughly scanned through the impugned detention order and the entire materials available on record.

5. It is seen from paragraph 4 of the Grounds of Detention that in similar case, viz., the accused was released on bail by this Court, in Crl.O.P.No.23334 of 2014 in respect of the case in Cr.No.396/2014 for the offences u/s.8(c) r/w 20[b][ii][B] of NDPS Act, 1985 on the file of Vridhachalam Police Station. The said bail application filed in similar case was the document relied upon by the Detaining Authority to come to a subjective satisfaction that the detenue was likely to be released on bail. Admittedly, such document has not been supplied to the detenue, as it did not form part of the Paper Book furnished by the Prosecution. Therefore, non supply of the copy of the bail application and other documents in similar case to the detenue would vitiate the impugned detention order.

6. The Honourable Supreme Court in M.Ahamed Kutty Vs. Union of India and another (1990-2-SCC-1) has observed thus:- "7. Considering the facts in the instant case, the bail applications and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would

be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenue with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenue's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenue illegal and entitling the detenue to be set at liberty in this case." (Emphasis added)."

7. This Court in Jarinabegam Vs. State of Tamil Nadu by Secretary to Government, Prohibition and Exercise Department, Chennai and another (2007-1-MLJ-Crl-18) relying upon the decision of the Honourable Supreme Court cited supra has held that non supply of the copy of the bail applications in similar cases to the detenue has the effect of vitiating the order or detention.

8. As already analysed by us, in the facts and circumstances of the present case, non-supply of the documents, viz., bail applications, in similar cases, to the detenue has the effect of vitiating the impugned detention order. Further, due to non-supply of such a vital documents, the detenue has lost valuable right to make an effective representation to the authorities concerned.

9. In the light of the above said principles laid down by the Honourable Supreme Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed.

10. In the result, this Habeas Corpus Petition is allowed. The impugned detention order is set aside. The detenue is directed to be released forthwith, unless her presence is required in connection with any other case.

Sd/- Asst.Registrar (CS V ) /true copy/ Sub Asst. Registrar gm

To 1.The Secretary, Government of Tamil Nadu, Home, Prohibition & Excise Department, Fort St.George, Chennai - 600 009.

2.The District Collector, Cuddalore District, Cuddalore - 1.

3.The Inspector of Police, Virudhachalam Circle, Virudhachalam, Cuddalore District - 600 001.

4.The Public Prosecutor, High Court, Chennai.

5.The Superintendent Special Prison, for Women, Vellore

6. The Joint Secretary to Government Public Law & Order fort St.George, Chennai-9 +1 cc to Mr.G.Anbayachozhan Advocate sr.38886 H.C.P.No.1071 of 2015 msm(co) aa12/08/2015