Krishnan v. State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 13.07.2015
CORAM:
THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.347/2015 Krishnan .. Petitioner Vs 1.The Secretary, State of Tamil Nadu Prohibition & Excise Department Fort St George, Chennai 600 009.
2.The Commissioner of Police Poonamallee High Road, Vepery Chennai 600007.
.. Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling upon the production of the records relating to the detention order dated 02.12.2014 made in detention order in Memo No.2047/BDFGISSV/2014 passed by the 2nd respondent herein, quash the same and direct the respondents to produce the body or person of the petitioner's son Santhosh @ Gopal, son of Krishnan, aged about 22 years, branded as Goonda, and now confined in Central Prison, Puzhal, Chennai before this Court and set him at liberty forthwith. For Petitioner :
Mr.C.Mohan Raj 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 second respondent vide Proceedings in Memo No.2047/BDFGISSV/2014 dated 02.12.2014, whereby the detenu/the son of the petitioner herein, by name, Santhosh @ Gopal, son of Krishnan, aged about 22 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 "GOONDA". 2.Though many grounds have been raised in the petition, Mr.C.Mohan Raj, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of non-supply of copy of the bail applications in the similar cases, 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 the bail applications in the similar cases, referred to in the grounds of detention were 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 the Booklet furnished that the bail orders in respect of the cases, viz., [a] the accused were released on bail by the learned Principal Sessions Judge, Thiruvallur in Crl.MP.No.712/2012 in respect of the case in Cr.No.464/2012 for the offences u/s.341, 294[b], 336, 427, 392, 397 & 506[ii] IPC on the file of T1 Ambattur Police Station ; [b] the accused was released on bail by the learned XVII Metropolitan Magistrate, Chennai, in Crl.MP.No.593/2009 in respect of the case in Crime No.26/2009 for the offence u/s.
379 IPC on the file of the R1 Mambalam Police Station ; and [c] the accused was released on bail by the learned V Metropolitan Magistrate, Egmore, Chennai in Crl.MP.No.1364/2012 for the offences u/s.457 and 380 IPC in Cr.No.1062/2011 on the file of P3 Vyasarpadi Police Station respectively, were furnished in page Nos.241 to 248. But, the cases referred to as the similar cases in paragraph No.4 are totally different from what has been furnished in the Booklet except the case registered in Cr.No.26/2009 on the file of R1 Mambalam Police Station. The said bail applications filed in similar cases were the documents relied upon by the Detaining Authority to come to a subjective satisfaction that the detenu was likely to be released on bail.
Admittedly, such documents have not been supplied to the detenu, as it did not form part of the Paper Book furnished by the Prosecution. Therefore, non supply of the copy of the bail applications and other documents in similar cases 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.
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 applications in similar cases 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 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 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 AP
To 1.The Secretary, State of Tamil Nadu Prohibition & Excise Department Fort St George, Chennai 600 009.
2.The Commissioner of Police Poonamallee High Road, Vepery Chennai 600007.
3. THE PUBLIC PROSECUTOR, HIGH COURT, CHENNAI.
4.The Superintendent of Central Prison Puzhal, Chennai.
5. The Joint Secretary to Government Public (Law & order) Fort Sti. George, Chennai.
HCP.No.347/2015 SCD(CO) EU 31.07.15