R.Meena v. The Secretary To Govt.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.07.2015 C O R A M THE HONOURABLE DR. JUSTICE S.TAMILVANAN and THE HONOURABLE MR. JUSTICE C.T.SELVAM H.C.P.No.801 of 2015 R.Meena ...

Petitioner/Wife of the Detneue Vs 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9.

2.The Commissioner of Police, Salem 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 in connection with the order of detention passed by the second respondent dated 24.02.2015 in C.M.P.No.22/GOONDA/Salem City/2015 against the petitioner's husband Ramesh @ Vellaiyan, son of Settu, aged about 28 years, who is confined at Central Prison, Puzhal, Salem and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner :

Mr.V.Paarthiban For Respondents :

Mr.M.Maharaja Addl. Public Prosecutor

O R D E R

(Order of the Court was made by S.Tamilvanan,J.) Challenge is made to the order of detention passed by the second respondent vide C.M.P.No.22/Goonda/Salem City/2015, dated 24.02.2015, whereby the detenu/husband of the petitioner herein, by name, Ramesh @ Vellaiyan, Son of Settu, male, aged about 28 years, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law

Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual 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.V.Paarthiban, 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 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.5 of the Grounds of Detention that in similar case, the accused was granted bail by the Principal Sessions Judge, Salem in C.M.P.No.3749/2011 in respect of Crime No.1792/2011 for the offence registered under Section 302 IPC on the file of Salem Town Police Station. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain any of the documents, viz., the bail application, in respect of the similar case. 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, the non-supply of the copy of the bail application and other documents in similar case to the detenu would vitiate the impugned detention order. Any bail applications moved by the detenu in the ground case or in the adverse case, necessarily would have to be considered by the Court concerned solely on merits. 6.The Honourable Supreme Court in M.Ahamed Kutty Vs. Union of India and another (1990-2-SCC-1) has observed thus:- "7.

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 document, viz., bail application in similar case to the detenu has the effect of vitiating the impugned detention order. Further, due to non-supply of such 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

mmi To 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.

2.The Commissioner of Police, Salem City.

3.The Superintendent, Central Prison, Salem.

4.The Joint Secretary to Government Public (Law & Order) Fort St.George,Chennai-9 5.The Public Prosecutor, High Court, Chennai.

H.C.P.No.801 of 2015 vgi(co) pmk.17.8.2015