S.Sudha v. State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.1.2015 Coram:

THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN H.C.P.No.2102 of 2014 S.Sudha .. petitioner vs.

1. State of Tamil Nadu represented by its Secretary Prohibition and Excise Department Fort St. George Chennai - 600 009

2. The District Collector and District Magistrate Cuddalore, Cuddalore District

3. The Inspector of Police Annamalai Nagar Police station Chidambaram Cuddalore District .. Respondents Prayer: This Habeas Corpus Petition has been filed under Article 226 of the Constitution of India for the relief as stated therein. Writ of Habeas Corpus calling for the records of the detention on 7.8.2014 in detention order No.C3/D.O./19/2014 on the file of the Second Respondent herein, and quash the same and direct the respondents herein to produce the body of the detenu Surender, S/o.Muthusamy, Hindu, aged about 30 years who is now confined in Central Prison, Cuddalore before the Hon'ble Court and set him at liberty.

For petitioner : Mr.M.K.Raja For Respondents: Mr.C.Emalias Additional Public Prosecutor

O R D E R

This Habeas Corpus Petition is filed by the wife of the detenu, namely, Surendar, aged 30 years, son of Muthusamy, to issue a Writ of Habeas Corpus to call for the records in C3/D.O/19/2014, dated 7.8.2014, passed by the second respondent detaining the detenu, under Section 3(1) 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", in the Central Prison, Cuddalore, and to quash the same and to direct the respondents to produce the body of the detenu and set him at liberty forthwith.

2. Though several grounds have been raised in this Habeas Corpus Petition, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of non-supply of copies of the bail applications filed in the same 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, 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 copies of the bail applications 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 5 of the Grounds of Detention that in the same cases registered in Annamalai Nagar Police Station, in Crime No.125 of 2014, under Sections 3, 4 of Explosive Substances Act, 1908 and Section 25(1)(B)(a) of Arms Act, 1959, and Section 3 of NTP (PDL) Act, 1992 as well as under Section 120(B), 427, 307 IPC, bail was granted to the co-accused Arulprasath by this Court in Crl.O.P.No.14971 of 2014, dated 3.7.2014 and bail was also granted to another co-accused Santhosh @ Shanthoshkumar by the learned Judicial Magistrate No.I, Chidambaram in Crl.M.P.No.3716 of 2014, on 6.8.2014. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain the copies of the said bail applications filed in the said cases. The said bail applications

filed in the said 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 copies of the bail applications 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 specificially 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 EXCISE 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 a copy of the bail application to the detenu has the effect of vitiating the order of 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 filed in the same 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 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 To:

1. The Secretary State of Tamil Nadu Prohibition and Excise Department Fort St. George Chennai - 600 009

2. The District Collector and District Magistrate Cuddalore, Cuddalore District.

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

5. The Inspector of Police Annamalai Nagar Police station Chidambaram Cuddalore District 6.The Public Prosecutor, High Court, Madras.

H.C.P.No.2102 of 2014 kk(co) pmk.26.2.2015