G.Lavanya v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.03.2015
CORAM:
THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MS.JUSTICE K.B.K.VASUKI HCP.No.2566 of 2014 G.Lavanya ...
Petitioner Vs 1.The State of Tamil Nadu rep. by its Secretary to Government Home, Prohibition & Excise Department, Fort St.George Chennai-600 009.
2.The District Collector and District Magistrate, Salem District, Salem.
... Respondents Prayer:- This Habeas Corpus Petition is filed, under Article 226 of the Constitution of India praying to issue a writ of Habeas Corpus calling upon the production of the records relating to the detention order dated 18.8.2014 made in detention order CMP.No.9/Goonda/C2 2014 passed by the 2nd respondent herein quash the same and direct the respondents to produce the body of the detenu Thiru Gokulraj S/o. Manivasagam, aged 29/2014 who has been detained in Central Prison at Salem and set her at liberty. For Petitioner :
Mr.K.C.Karl Marx For Respondents :
Mr.C.Emalias, APP
ORDER
This Habeas Corpus Petition is filed, by the wife of the detenu, namely, Gokulraj, aged 29 years, son of Manivasagam, to issue a Writ of Habeas Corpus, to call for the records, in CMP.No.9/GOONDA/C2/2014 dated 18.8.2014, 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)the Tamil Nadu Act 14 of 1982, branding him as a
"Goonda", in the Central Prison, Salem 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.K.C.Karl Marx, learned counsel for the petitioner has assailed the impugned detention order only on the ground of non-supply of copy of the bail application filed in 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.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 application 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 4 of the Grounds of Detention that the petitioner is in remand in Tharamangalam Police Station Cr.No.397/2014 for offences under section 392 IPC and he filed a bail application before the Judicial Magistrate, Omalur in CMP.No.8028/2014, which was dismissed on 4.8.2014. It is further stated therein that the accused was in similar case, released on bail in Crl.MP.No.6544/2013 by the Judicial Magistrate No.2, Sankari in connection with Magudanchavadi Police Station Cr.No.508/2013 registered for the offences under Sections 392, 294 (b), 427 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 bail application filed in similar case.
The said bail application filed in similar case was a 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 a 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 in 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 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 a copy of the bail application 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 application filed in similar case 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.
Sd/- Asst.Registrar (CO) /true copy/ Sub Asst. Registrar rk
To:
1.The Secretary to Government Home, Prohibition & Excise Department, Fort St.George Chennai-600 009.
2.The District Collector and District Magistrate, Salem District, Salem.
3. The Superintendent Central Prison, Salem (In duplicate for communication to detenu)
4. The Joint Secretary to Government Public (Law and order) Fort Saint George, Chennai 5.The Public Prosecutor, Madras High Court, Madras. 1 cc to M/s.K.C. Karl marx,, Advocate, SR. 17137 HCP.No.2566/2014 SAI (CO) kk 21/4