Manikandan v. Government Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 13.04.2015

CORAM:

THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.3010/2014 Manikandan

...Petitioner

Vs

1. The Principal Secretary to Government Government of Tamil Nadu Home, Prohibition & Excise [XVI] Department Fort St George, Chennai 600 009.

2. The District Magistrate & District Collector Namakkal District, Namakkal.

...Respondents

Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling for the records in CMP.No.20/Goonda/2014/M1 dated 05.10.2014 on the file of the 2nd respondent herein and quash the same and direct the respondents herein to produce the body of the petitioner's mother Tmt Sornavalli, wife of Venkatesan, aged 45 years now confined in Central Prison for Women, Vellore, before this Court and set her at liberty.

For Petitioner :

Mr.M.Govindaraju For Respondents :

Mr.M.Maharaja Additional Public Prosecutor

ORDER

Challenge is made to the order of detention passed by the second respondent vide Proceedings in CMP.No.20/Goonda/2014/M1 dated 05.10.2014, whereby the detenue/the mother of the petitioner herein, by name, Sornavalli, wife of Venkatesan, aged about 45 years, was ordered to be detained under the provisions 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 her as a "GOONDA". 2.Though many grounds have been raised in the petition, Mr.M.Govindaraju, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of nonsupply of copy of the bail application in similar case, referred to in the grounds of detention, for arriving at the subjective satisfaction that there is likelihood of the detenue 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 the bail application in similar case, referred to in the grounds of detention was not supplied to the detenue.

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 case, the accused was released on bail by the learned Judicial Magistrate No.1, Namakkal, in CMP No.3177/2008 in respect of the case in Cr.No.1731/2007 for the offence u/s.379 IPC, on the file of Namakkal Police Station. 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 application in similar case.

The said bail application filed in similar case were the documents relied upon by the Detaining Authority to come to a subjective satisfaction that the detenue was likely to be released on bail. Admittedly, such documents have not been supplied to the detenue, 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 detenue 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 detenue 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 detenue'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 detenue illegal and entitling the detenue 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 detenue 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 in similar case, to the detenue has the effect of vitiating the impugned detention order. Further, due to non-supply of such a vital document, the detenue 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 detenue is directed to be released forthwith, unless her presence is required in connection with any other case.

Sd/- Assistant Registrar(J) //True Copy// Sub Assistant Registrar

AP To

1. The Principal Secretary to Government Government of Tamil Nadu Home, Prohibition & Excise [XVI] Department Fort St George, Chennai 600 009.

2. The District Magistrate & District Collector Namakkal District, Namakkal.

3. THE PUBLIC PROSECUTOR, HIGH COURT, CHENNAI.

4. The Superintendent of Central Prison, Central Prison for Women, Vellore.

5. The Joint Secretary to Government, Public (Law & Order) Fort Saint George, Chennai - 9.

1 CC to Mr.M.Govindaraju, Advocate SR.No. 20322 HCP.No.3010/2014 AK (CO) PSI (28.04.2015)