Tmt.J.Janet v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 22.04.2015

CORAM:

THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.3113 of 2014 J.Janet .. Petitioner/Mother of detenue Vs 1.The Secretary to Government Home, Prohibition & Excise Department Secretariat, Chennai 600 009.

2.The Commissioner of Police, Chennai Police, Office of The Commissioner of Police, (Goondas Section), Egmore, Chennai - 8 .. Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to call for the entire records relating to petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 13.10.2014 on the file of the second respondent herein made in proceedings Memo No.1501/BDFGISSV/2014 and to setaside the same as illegal and consequently to direct the respondents herein to produce the said petitioner's son namely Aswin Christopher @ Aswin, son of Josephraj, aged 25 years before this Court and to set him at liberty from detention, now petitioner's son is detained at Central Prison, Puzhal, Chennai. For Petitioner :

Mr.V.Paarthiban 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 Memo No.1501/BDFGISSV/2014 dated 13.10.2014, whereby the detenu/the son of the petitioner herein, by name, Aswin Christopher @ Aswin, son of Josephraj, aged 25 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 him as a "Goonda".

2.Though many grounds have been raised in the petition, Mr.V.Paarthiban, 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 the 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.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 the similar case, 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 case, the accused was released on bail by the learned Principal Sessions Judge, Chennai in Crl.MP.No.10992/2011 in respect of the case in Crime No.1640/2011 for the offences under sections 294(b), 341, 336, 307, 397 and 506 (ii) IPC on the file of the V-5, Thirumangalam Police Station. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain the bail application in respect of the similar case. The said bail application filed in similar case was the 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 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. This order is made only towards setting aside the order of detention passed against the detenu herein. Any bail application 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, un-influenced by this 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.

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 document, viz., bail application, 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/- Assistant Registrar //True Copy// Sub Assistant Registrar vsi

To

1. The Secretary to Government Home, Prohibition & Excise Department Secretariat, Chennai 600 009.

2.The Commissioner of Police, Chennai Police, Office of the Commissioner of Police, (Goondas Section), Egmore, Chennai - 8

3. The Public Prosecutor, High Court, Chennai. 4.The Superintendent of Central Prison, Puzhal, Chennai.

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

HCP.No.3113 of 2014 BR(CO) Eu 20.05.2015