Dhanalakshmi v. The State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.2.2015 Coram:

THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HON'BLE MS.JUSTICE K.B.K.VASUKI H.C.P.No.2447 of 2014 Dhanalakshmi .. petitioner/Mother of the detenu vs.

1. The State of Tamil Nadu rep by its Secretary Home Prohibition and Excise Dept., Fort St. George, , Chennai - 600 009

2. The Commissioner of Police/ detaining authority Chennai Police, Egmore Chennai .. Respondents Prayer: This Habeas Corpus Petition has been filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the records of the second respondent in No.124/2014 dated 20.5.2014 and quash the same thereby direct the detenu Mr.Suresh @ Pannai Suresh s/o.Balakrishnan aged about 28 years, lodged in Vellore Central Prison to be produced before this Court and set the detenu at liberty.

For petitioner : Mr.V.Jeevagiridharan For Respondents: Mr.C.Emalias Additional Public Prosecutor

O R D E R

This Habeas Corpus Petition is filed by the mother of the detenu, namely, Suresh @ Pannai Suresh, aged 28 years, son of Balakrishnan, to issue a Writ of Habeas Corpus to call for the records in BDFGISSV No.724/2014 dated 20.5.2014, 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), read with orders issued by the Government in G.O.(D) No.75, Home, Prohibition and Excise (XVI) Department, dated 18.4.2014, under Sub Section (2) of Section 3 of the said Act, branding him as a "Goonda", in the Central Prison, Vellore, 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 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, 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 4 of the Grounds of Detention that in a similar case registered at B-2, Esplanade Police Station in Crime No.981/2013, under Sections 341, 336, 427, 392 r/w 397 and 506 (ii) IPC, bail was granted by the Principal Sessions Court, Chennai, to the accused Velu @ Chinnavelu, in Crl.M.P.No.4371 of 2013 and also in a similar case registered at H-1, Washermenpet Police Station in Crime No.651 of 2013, under Sections 341, 384 and 506(ii) IPC, bail was granted by the XV Metropolitan Magistrate Court, George Town, Chennai, to the co-accused in Crl.M.P.Nos.749 of 2013 and 750 of 2013. 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 similar cases. The said bail applications filed in similar cases were 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 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 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 copies of the bail applications 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 similar cases 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 The State of Tamil Nadu Home Prohibition and Excise Dept., Fort St. George, , Chennai - 600 009

2. The Commissioner of Police/ detaining authority Chennai Police, Egmore Chennai

3. The Superintendent Central Prison, Vellore.

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

H.C.P.No.2447 of 2014 VGI(CO) Eu 21.03.15