S.Selvi v. State Of Tamil Nadu Rep.By Its
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.No.85 of 2023 Selvi W/o.Sasikumar .. Petitioner Vs.
1.
State of Tamil Nadu Rep. by its Secretary Prohibition & Excise Dept., Fort St.George, Chennai-600 009.
2.
The Commissioner of Police / Detaining Authority Coimbatore City.
3.
Inspector of Police All Women Police Station All Women Police Station West Coimbatore City.
4.
The Superintendent of Police Central Prison, Coimbatore.
..Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records relating to the Page Nos.1/8
impugned order of detention passed by the 2nd respondent in C.No.69/GS/IS/2022 dated 11.11.2022 and quash the same and consequently, direct the respondents to produce the detenu C.Sasikumar, aged 57 years, son of Chinnasamy, now confined at Central Prison, Coimbatore, before this Hon'ble Court and set him at liberty forthwith. For Petitioner :
Mr.S.Parthasarathy For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] When the captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] was listed in the Admission Board on 23.01.2023, this Court made the following order: 'Captioned Habeas Corpus Petition has been filed in this Court on 05.01.2023 inter alia assailing a detention order dated 11.11.2022 bearing reference C.No.69/G/IS/2022 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, third respondent is the Sponsoring Authority.
2. The wife of the detenu is the petitioner.
3. Mr.S.Parthasarathy, learned counsel on record for habeas corpus petitioner is before us.
4. The aforementioned detention order has been made on the premise that the detenu is a 'Sexual Offender' under Section 2(ggg) of 'The Tamil Nadu Prevention of Dangerous Page Nos.2/8
Activities of Bootleggers, Cyber law offenders, Drugoffenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity].
5. The detention order has been assailed inter alia on the ground that there is no cogent material to come to the conclusion that there is compelling necessity to detain him in custody under Act 14 of 1982.
6. Prima facie case made out for issue of notice.
7. Admit. Issue notice returnable in four weeks.
8. Mr.R.Muniyapparaj, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.'
2. The aforementioned order made in the 23.01.2023 Admission listing shall be read as an integral part and parcel of this order which means that the short forms, short references and abbreviations used in the order in the Admission listing shall be used in the instant order also.
3. There is no adverse case. This solitary case which is the sole substratum of the impugned preventive detention order is Crime No.36 of Page Nos.3/8
2022 on the file of Coimbatore City All Women Police Station for alleged offences under Sections 5(k)(m) read with 6 of 'The Protection of Children from Sexual Offences Act, 2012' [hereinafter 'POCSO Act' for the sake of convenience and clarity]. Owing to the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.S.Parthasarathy, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5. Though very many grounds have been raised in the support affidavit, learned counsel for petitioner at the hearing projected his argument qua challenge to the impugned preventive detention order on one point and that point is not providing translated copy of a document (relied on by the detaining authority) in a language which the detenu is conversant with. Elaborating on the submission, learned counsel drew our attention to page No.88 of the booklet which is 'Certificate of Examination for Sexual Offences' given by District Police Surgeon. No Tamil translation of the above document Page Nos.4/8
has been furnished to the detenu. We had the benefit of perusing the booklet. We also noticed that the 'Certificate of Examination for Sexual Offences' forms part of the ground on which the impugned preventive detention order has been made. As this turns on obtaining scenario which comes to light from the booklet which is before us, learned State Additional Public Prosecutor does not have much of a say.
6. Be that as it may, we are informed that the literacy level of the detenu is 3rd Std and he is school drop out. We are also informed that the detenu is conversant only with Tamil. We remind ourselves of Powanammal case i.e., Powanammal Vs. State of Tamil Nadu, wherein Hon'ble Supreme Court addressed itself to this translation point in a similar fact situation. The question which the Hon'ble Supreme Court addressed itself to is captured in paragraph 6 and the manner in which a Hon'ble Bench of the Supreme Court answered this question is captured in paragraph 16. To be noted, Powanammal case is reported in (1999) 2 SCC 413 and paragraphs 6 and 16 {as in SCC journal} read as follows:
'6. The short question that falls for our consideration is whether failure to supply the Tamil version of the order of Page Nos.5/8
remand passed in English, a language not known to the detenue, would vitiate her further detention.
16. For the above reasons, in our view, the non-supply of the Tamil version of the English document, on the facts and in the circumstances, renders her continued detention illegal. We, therefore, direct that the detenue be set free forthwith unless she is required to be detained in any other case. The appeal is accordingly allowed. '
7. We find that the aforementioned Powanammal case applies in all fours to the case on hand as we find that the 'Certificate of Examination for Sexual Offences' which has been relied on as part of the grounds of detention qua impugned preventive detention order is a crucial document and not furnishing the same in Tamil the lone language known to the detenu has impaired his constitutional right to make an effective representation of the impugned preventive detention order. We therefore have no hesitation in saying that the impugned preventive detention order deserves to be dislodged.
8. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. Page Nos.6/8
9. Apropos, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 11.11.2022 bearing reference C.No.69/G/IS/2022 made by the second respondent is set aside and the detenu Thiru.C.Sasikumar, aged 57 years, son of Thiru.Chinnasamy, is directed to be set at liberty forthwith, if not required in connection with any other case / cases. There shall be no order as to costs. (M.S.,J.) (R.S.V.,J.) 03.07.2023 Index : Yes Speaking mk P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Coimbatore.
To 1.
State of Tamil Nadu Rep. by its Secretary Prohibition & Excise Dept., Fort St.George, Chennai-600 009.
2.
The Commissioner of Police / Detaining Authority Coimbatore City.
3.
Inspector of Police All Women Police Station All Women Police Station West Coimbatore City.
4.
The Superintendent of Police Central Prison, Coimbatore.
Page Nos.7/8
6.
The Public Prosecutor High Court, Madras.
M.SUNDAR, J., and R.SAKTHIVEL, J., mk H.C.P.No.85 of 2023 03.07.2023 Page Nos.8/8