K.Kothandan v. The Secretary To The

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 07.07.2015

CORAM:

THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.51 of 2015 K.Kothandan .. Petitioner Vs

1. The Secretary to Government, Home, Prohibition & Excise Department Secretariat, Chennai 600 009.

2.The Commissioner of Police Chennai City.

.. Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to call for the records in connection with the order of detention passed by the second respondent dated 23.12.2014 in Memo No.2248/B.D.F.G.I.S.S.S.V/ 2014 against the petitioner's brother, Thirunavukarasu, son of Krishnan, aged about 27 years, who is confined in Central Prison, Puzhal-II, Chennai, and set side the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner :

Mr.S.Senthilvel For Respondents :

Mr.M.Maharaja Additional Public Prosecutor

O R D E R

(The 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.2248/B.D.F.G.I.S.S.S.V/ 2014 dated 23.12.2014, whereby the detenu/the brother of the petitioner herein, by name, Thirunavukkarasu, son of Krishnan, aged about 27 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.S.Senthilvel, 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 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 order. 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 similar cases, 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 cases, the accused were released on bail [a] by the Court of Metropolitan Magistrate, Egmore, Chennai, in Crl.M.P.Nos.1259 and 1364/2012 for the offence under sections 457 and 380 IPC in Crime No.1062/2011 on the file of P-3, Vyasarpadi Police Station and (b) by the Court of Principal Sessions Chennai in Crl.M.P.No.10992/2011 for the offence under sections 294(b), 341, 336, 307, 397 and 506[ii] IPC in Cr.No.1640/2011 on the file of V-5 Thirumangalam Police Station. On a perusal of the Paper Book furnished by the Prosecution, it is seen from page Nos. 235 to 243 that only the bail orders of similar cases were furnished and it does not contain the copies of the bail applications in similar cases.

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 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 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 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 copies of the bail applications in similar cases, to the detenu has the effect of vitiating the impugned detention order. Further, due to nonsupply of such a vital document, 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/- Asst.Registrar (CS IV ) /true copy/ Sub Asst. Registrar vsi To

1. The Secretary to Government, Home, Prohibition & Excise Department Secretariat, Chennai 600 009.

2. The Commissioner of Police Chennai City.

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

4. The Joint Secretary to Government, Public (Law & Order), Fort St. George, Chennai - 600 009.

5. The Public Prosecutor, High Court, Chennai.

H.C.P.No.51 of 2015 bvr(co) kra(24/07)