Jayachandran v. The Commissioner Of Police

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.09.2015

CORAM

THE HONOURABLE DR.JUSTICE S.TAMILVANAN and THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.1451 of 2015 Jayachandran S/o.Seenuswamy .....Petitioner/Father of the detenue vs.

1.The Commissioner of Police, Office of the Commissioner of Police, (Goondas Section) Vepery, Chennai - 600 007.

2.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Madras - 600 009.

.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus to call for the records pertaining to detention order passed by first respondent in BCDFGISSSV No.403 of 2015 dated 15.05.2015 against the detenu Rajesh, S/o.Jayachandran, aged 23, quash the same and consequently, direct the respondents to produce the detenu, who is confined at Central Prison, Puzhal, Chennai, before this Court and set him at liberty. For Petitioner :

Mr.B.Maheswaran For Respondents :

Mr.M.Maharaja Additional Public Prosecutor *****

O R D E R

[Order of the Court was made by S.TAMILVANAN, J.] Petitioner is the father of the detenu, who has been branded as a "Goonda" under the Tamil Nadu Act 14 of 1982 and detained under orders

of first respondent passed in BCDFGISSSV No.403 of 2015 dated 15.05.2015. Such order is under challenge herein.

2. The detenu came to adverse notice in the following cases: Sl No.

Name of the Police station and Crime No.

Section of law 1.

R-10 MGR Nagar Police Station, Crime No.87 of 2015 341, 294(b), 324, 506(ii) IPC 2.

R-10 MGR Nagar Police Station, Crime No.818 of 2015 294(b), 323, 452, 506(i) IPC 3.

R-10 MGR Nagar Police Station, Crime No.1568 of 2015 341, 294(b), 307, 506(ii) IPC The ground case has been registered against the detenu in Crime No.1575 of 2015 on the file of R-10 MGR Nagar Police Station for offences under Sections 341, 294(b), 336, 427, 397 and 506(ii) IPC.

3. Though many grounds have been raised in the petition, learned counsel for 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.

4. Per contra, 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 detenu.

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

6. It is seen from paragraph 4 of the Grounds of Detention that in similar case, viz., the accused was released on bail by learned Principal Sessions Judge, Chennai, in Crl.M.P.No.10992 of 2011 in respect of the case in Cr.No.1640 of 2011 for offences u/s.294(b), 341, 336, 307, 397 and 506(ii) IPC on the file of V-5 Thirumangalam Police Station. On a perusal of the Booklet furnished by the Prosecution, it is seen that it does not contain the copy of the said bail application in similar case; but the bail order of the said similar case [both in

English version and in vernacular version] has been furnished in page Nos.387 to 391 of the Booklet. The said bail application filed in similar case was the document relied upon by the Detaining Authority to come to the 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 Booklet furnished by the Prosecution. Therefore, non supply of the copy of the bail application and other documents in similar case to the detenu would vitiate the impugned detention order.

7. 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)."

8. 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 detenu has the effect of vitiating the order of detention.

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

10. 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.

The detention order passed by first respondent, detaining the detenu Rajesh, S/o.Jayachandran, aged about 23 years, made in BCDFGISSSV No.403 of 2015 dated 15.05.2015, is quashed and the Habeas Corpus Petition is allowed. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.

-sd/- ASSISTANT REGISTRAR / TRUE COPY / SUB-ASSISTANT REGISTRAR gm To 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Madras - 600 009.

2.The Commissioner of Police, Office of the Commissioner of Police, (Goondas Section) Vepery, Chennai - 600 007.

3.The Superintendent of Central Prison, Puzhal, Chennai.

4 The Joint Secretary to Government, Public (law & order), Fort St.George, Chennai 600 009.

5.The Public Prosecutor, High Court, Madras.

+1 CC to MR. G.Arunkumar ADVOCATE. SR.NO. 51928 H.C.P.No.1451 of 2015 CO-GR JD 09/10/2015