Kanniga v. The Secretary To The

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 28.07.2015

CORAM:

THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.714/2015 Kanniga ..

Petitioner Vs 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The Commissioner of Police, Chennai City.

.. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Habeas Corpus to call for the records pertaining to the detention order passed in Memo No.128/BCDFGISSSV/2015 dated 10.02.2015 on the file of the second respondent herein and to set aside the same and to direct the respondents herein to produce the detenu Vicky @ Vignesh, son of Arul, aged about 23 years, who is confined in Central Prison, Puzhal II, Chennai, before this Court and to set him at liberty. For Petitioner :

Mr.S.Senthil Vel For Respondents :

Mr.M.Maharaja Additional Public Prosecutor

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.128/BCDFGISSSV/ 2015 dated 10.02.2015, whereby the detenu/son of the petitioner herein, by name, Vicky @ Vignesh, son of Arul, aged about 23 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.Senthil Vel, the learned counsel for the 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.

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 the similar case, 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 the similar case, the accused was released on bail by the learned Principal Sessions Judge, Chennai in Crl.MP.No.1863/2013 for the offence under Sections 341, 336, 307, 427 and 506(ii) IPC in Cr.No.95/2013 on the file of N4 Fishing Harbour Police Station. 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 in similar case and only the respective bail order was furnished to the detenu in page Nos.150 to 153 [in English version and in Vernacular version] in the Booklet placed before us. The said bail application filed in the similar case was the document 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 application in the similar case 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 the 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 copy of the bail application in the similar case, 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.

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 II ) /true copy/ Sub Asst. Registrar vga

To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The Commissioner of Police, Chennai City.

3.The Public Prosecutor, High Court, Chennai. 4.The Superintendent of Central Prison, Puzhal II, Chennai.

5.The Joint Secretary to Government, Public (Law & Order) Fort St.George Chennai-9 HCP.No.714/2015 ak(co) aa12/08/2015