S.Parthiban v. The Commissioner Of Police
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.07.2015 C O R A M THE HONOURABLE DR. JUSTICE S.TAMILVANAN and THE HONOURABLE MR. JUSTICE C.T.SELVAM H.C.P.No.1166 of 2015 S.Parthiban ...
Petitioner Vs 1.The Commissioner of Police, Chennai Police, Vepery, Chennai - 7.
2.State of Tamil Nadu rep. by Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.
...
Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Habeas Corpus to call for the records of the first respondent herein pertaining to the detention order made in Order No.170 of 2015 dated 21.02.2015 and to set aside the order of detention as contemplated under Section 3 (1) of the Tamil Nadu Act 14 of 1982 and direct the first respondent to produce the detenu/petitioner S.Parthiban, male, aged 27 years, son of Sankar, now detained at Central Prison, Puzhal before this Court and set him at liberty and freedom. For Petitioner :
Mr.O.A.Dinesh Kumar For Respondents:
Mr.M.Maharaja Addl. 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 first respondent vide BCDFGISSV No.170/2015, dated 21.02.2015, whereby the detenu/petitioner herein, by name, Parthiban, Son of Sankar, male, aged about 27 years, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA".
2.Though many grounds have been raised in the petition, Mr.O.A.Dinesh Kumar, 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 detenu 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, Mr.M.Maharaja, 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 bail application in the similar case, referred to in the grounds of detention was not supplied to the detenu.
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 No.4 of the Grounds of Detention that in similar case, the accused was granted bail by the V Metropolitan Magistrate Court, Egmore, Chennai in Crl.M.P.Nos.1259 and 1364 of 2012 in respect of Crime No.1062/2011 for the offence registered under Sections 457 and 380 IPC on the file of P-3 Vysarpadi Police Station. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain any of the documents, viz., the bail application, in respect of the similar case. 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 detenu was likely to be released on bail. Admittedly, such document has not been supplied to the detenu, as it did not form part of the Paper Book furnished by the Prosecution. Therefore, the non-supply of the copy of the bail application and other documents in similar case to the detenu 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 detenu 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 detenu'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 detenu illegal and entitling the detenu 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 application in similar case to the detenu 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 document, viz., bail application in similar case to the detenu has the effect of vitiating the impugned detention order. Further, due to non-supply of such vital documents, the detenu 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 detenu is directed to be released forthwith, unless his presence is required in connection with any other case.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar mmi
To 1.The Commissioner of Police, Chennai Police, Vepery, Chennai - 7.
2.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.
3.The Superintendent, Central Prison, Puzhal, Chennai.
4.The Public Prosecutor, High Court, Chennai.
5. The Joint Secretary to Government Public (Law & order), Fort St. George, Chennai 600 009.
H.C.P.No.1166 of 2015 KM(CO) Eu 12.08.15