Valli v. The Government Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 20.04.2015

CORAM:

THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.3049/2014 Valli ..

Petitioner Vs 1.The Secretary to the Government Government of Tamil Nadu Prohibition & Excise Department Fort St George, Chennai 600 009.

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

..

Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to call for the records relating to the detention order passed by the 2nd respondent in BDFGISSV No.87/2014 dated 18.10.2014 and quash the same and consequently to produce the detenue Kalayarasi, wife of Ganesan, aged about 38 years before this Court now she is detained at the Special Prison for Women, Vellore and to release and set her at liberty forthwith. For Petitioner :

Mr.M.R.Senthilkumar 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 BDFGISSV No.87/2014 dated 18.10.2014, whereby the detenue/the daughter-in-law of the petitioner herein, by name, Kalayarasi, wife of Ganesan, aged 38 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 "Bootlegger".

2.Though many grounds have been raised in the petition, Mr.M.R.Senthilkumar, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of nonsupply of copy of the bail applications in the 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.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 applications in the similar cases, referred to in the grounds of detention 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 No.5 of the Grounds of Detention that in similar cases, viz., [a]the accused was released on bail by the learned District and Sessions Judge-II, Kancheepuram, in Crl.MP.No.307/2013 in respect of the case in Crime No.132/2013 for the offences u/s.4[1][a], 4[1-A] TNP Act r/w 6 & 11 of RS Rules, 2000 on the file of the PEW, Kancheepuram; and [b] the accused was released on bail by the learned District and Sessions Judge-II, Kancheepuram, in Crl.MP.No.181/2014 in respect of the case in Crime No.24/2014 for the offences u/s.

4[1][aaa] & 4 [1-A] TNP Act r/w 6 & 11 of RS Rules, 2000 on the file of the PEW, Kancheepuram, respectively. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain any of the documents, viz., the bail applications, in respect of the 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, 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 copy of the bail applications and other documents in similar cases to the detenu would vitiate the impugned detention order.

This order is made only towards setting aside the order of detention passed against the detenu herein. Any bail applications moved by the detenu in the ground case or in the adverse cases, necessarily would have to be considered by the Court concerned solely on merits.

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 applications 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 applications in similar cases 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 documents, viz., bail applications, in similar cases, 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 detenue is directed to be released forthwith, unless her presence is required in connection with any other case.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar AP

To 1.The Secretary to the Government Government of Tamil Nadu Prohibition & Excise Department Fort St George, Chennai 600 009.

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

3. The Superintendent Special Prison, for Women, Velore.

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

HCP.No.3049/2014 SKV(CO) Eu 05.05.15