Sabari Giri Natahan v. The District Collector And

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 06.07.2015

CORAM:

THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.118/2015 Sabari Girinathan

...Petitioner

Vs

1. The District Collector & District Magistrate Tiruvarur District, Tiruvarur.

2. The Secretary to Government, Government of Tamil Nadu [Home], Prohibition & Excise Department Fort St George, Chennai 600 009.

...Respondents

Prayer:- This Petition is filed under Article 226 of the Constitution of India to issue a writ of Habeas corpus calling for the records of the 1st respondent herein concerned in C.O.C.No.28/2014 dated 30.12.2014 and set aside the order of detention passed therein against the detenue by name Tmt. Savithiri, wife of Kumar, Hindu, aged about 48 years, who is the mother of the petitioner herein, quashing the same, and setting her at liberty now detained in Central Prison for Women, Tiruchirappalli.

For Petitioner :

Mr.G.Vinodh Kumar For Respondents :

Mr.M.Maharaja, APP

ORDER

[Order of the Court was made by S.TAMILVANAN, J.,] Challenge is made to the order of detention passed by the first respondent vide Proceedings in C.O.C.No.28/2014 dated 30.12.2014, whereby the detenue/the mother of the petitioner herein, by name, Tmt. Savithiri, wife of Kumar, aged about 48 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 her as a "Bootlegger". 2.Though many grounds have been raised in the petition, Mr.G.Vinodh Kumar, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of nonsupply of copy of the bail application and the bail order in 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, 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 the bail application in 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 No.5 of the Grounds of Detention that in similar case, the accused Veerasekaran, was released on bail by this Court in Crl.OP.No.25862/2010 on 03.11.2010 in respect of the case in Cr.No.599/2010 for the offence u/s.4[1][i], 4[i][aaa] r/w 4[1-A] of TNP Act on the file of Thiruthuraipoondi Prohibition Enforcement Wing.

On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain the copy of the said bail application and bail order in similar case ; but only the bail order in respect of the said similar case [both in English and vernacular version] has been furnished in page Nos.75 to 79 of the Booklet. The said bail application and the bail order filed in similar case were the documents relied upon by the Detaining Authority to come to a subjective satisfaction that the detenue was likely to be released on bail. Admittedly, such documents have 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 bail order 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 application 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 application in similar case 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 copy of the bail application and the bail order in similar case, to the detenue has the effect of vitiating the impugned detention order. Further, due to nonsupply of such 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/- Assistant Registrar(CS-III) //True Copy// Sub Assistant Registrar

AP To

1. The District Collector & District Magistrate Tiruvarur District, Tiruvarur.

2. The Secretary to Government, Government of Tamil Nadu [Home], Prohibition & Excise Department Fort St George, Chennai 600 009.

3. THE PUBLIC PROSECUTOR, HIGH COURT, CHENNAI.

4. The Superintendent Central Prison for Women, Tiruchirappalli.

5. The Joint Secretary to Government, Public (Law & Order) Fort St. George, Chennai - 9.

1 CC to Mr.G.Vinodh Kumar, Advocate SR.No. 34089 HCP.No.118/2015 VSN (CO) PSI (22.07.2015)