Karuvayan@ Devarajan Aged 33 v. District Magistrate And
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 25.08.2015
CORAM:
THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.724/2015 Karuvayan @ Devarajan .. Petitioner Vs 1.District Magistrate and District Collector, Namakkal.
2.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-9.
.. Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling for the records in Memo CMP No.16/Goonda.2014/M1 dated 16.09.2014 of the respondent District Magistrate and District Collector, Namakkal and to quash the order passed in the abovesaid memo and to set the petitioner viz., Karuvayan @ Devaraj, aged about 33 years son of late Chinnakannau, Malliga Thottam Nagar, Kothukadu Thottam, opposite to C.N.C. College, Erode now detained at Central Prison, Salem at liberty.
For Petitioner :
Mr.BaluSekar Mr.N.Sudharsan (Amicus Curiae) 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 first respondent vide Proceedings in C.M.P.No.16/Goonda/2014/M1 dated 16.09.2014, whereby the detenu, by name, Karuvayan @ Devaraj, son of (Late) Chinnakannu, aged about 33 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.Since, there is no representation on behalf of the petitioner by Mr.Balu Sekar, the learned counsel who filed vakalat on behalf of the petitioner, this Court appoints Mr.N.Sudharsan, learned counsel as Amicus Curiae.
3.Though many grounds have been raised in the petition, the learned Amicus Curiae appearing 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 paragraph No.4 of the Grounds of Detention that in similar case by the learned Principal District Sessions Judge, Namakkal in Crl.MP.No.777/2014 for the offence u/s.392 IPC in Cr.No.16/2014 on the file of Vazhavandhinadu Police Station. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain any of the document, viz., the bail application, in respect of the similar case ; and only the bail orders in respect of the said similar case in English version was furnished in page Nos.97 and 98 of the Booklet. The said bail application filed in 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 document has 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 and other documents in similar case to the detenu would vitiate the impugned detention order. This order is made only towards setting aside the order of detention passed against the detenu herein.
the order of this Court.
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. 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 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 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.
-s/dAssistant Registrar True Copy Sub-Assistant Registrar
To 1.District Magistrate and District Collector, Namakkal.
2.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-9.
3. THE PUBLIC PROSECUTOR, HIGH COURT, CHENNAI.
4.The Superintendent of Central Prison, Salem.
5. The Joint Secretary to Government, Public Law and order Fort St.George, Chennai-9 HCP.No.724/2015 aa22/09/2015