Kamesh v. State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.01.2015

CORAM:

THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN H.C.P.No.2126 of 2014 Kamesh ..

Petitioner Vs 1.State of Tamil Nadu, Rep. By its Secretary to Government, Home, Prohibition & Excise Department, Fort St.George Chennai 600009 2.The Commissioner of Police, Chennai Police, Chennai - 600 008.

..Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to call for the records pertaining to the order of detention passed by the 2nd respondent made in detention Order BDFGISSV No.754/2014 dated 03.07.2014 and quash the same and direct the respondents 1 and 2 to produce the body and person of the detenu, Nanda @ Nandagopal, S/o Nagalingam, who is now aged about 32 years now confined in Central Prison, Puzhal, Chennai and set him at liberty.

For Petitioner :

Mr.C.C.Chellappan For Respondents :

Mr.C.Emalias, Additional Public Prosecutor .

ORDER

This Habeas Corpus Petition is filed, by the nephew of the detenu, namely, Nanda @ Nandagopal, S/o Nagalingam, aged 32 years, to issue a Writ of Habeas Corpus, to call for the records, in BDFGISSV No.754/2014 dated 03.07.2014, passed by the 2nd 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 14/1982), branding him as a "Goonda", in the Central Prison, Puzhal Chennai, 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, Mr.C.C.Chellappan,the learned counsel appearing 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.

3. Per contra, Mr.C.Emalias, 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 by the Court of Principal Sessions Judge, in Crl.M.P.No.9600/2011 in respect of Crime No.973/2011 on the file of P-1, Pulianthope Police Station for the offence under sections 341, 294(b), 323, 385 and 506(ii) IPC and by this Court, in Crl.O.P.No.13843/2009 in respect of Crime No.301/2009 on the file of R-7, K.K.Nagar Police Station for the offence under sections 147, 148, 341 and 302 IPC and by the Principal Sessions Judge at Thiruvallur in Crl.M.P.No.2392/2012 in respect of Cr.No.1960/2012 for the offence under sections 341, 294(b), 336, 427, 392, 397 and 506(ii) IPC. 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 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, those documents have not been supplied to the detenu, as it did not form part of the Paper Book furnished by the Prosecution.

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 copy 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/- Assistant Registrar //True Copy// Sub Assistant Registrar vsi To

1. Secretary to Government, Home, Prohibition & Excise Department, Fort St.George ,Chennai 600009

2. The Commissioner of Police, Chennai Police, Chennai - 600 008.

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

5. The Public Prosecutor, High Court, Chennai.

HCP.No.2126 of 2014 rsk(co) pmk.18.2.2015