Ammu v. The Secretary To The

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 15.04.2015

CORAM:

THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.3327/2014 Ammu ..Petitioner/Daughter of the Vs 1.The Secretary to the Government Home, Prohibition & Excise Department Secretariat, Chennai 600 009.

2.The District Collector & District Magistrate, Vellore District, Vellore-9.

.. Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to call for the records in connection with the order of detention passed by the 2nd respondent dated 05.11.2014 in C3.D.O.No.92/2014 against the petitioner mother Thamarai, female, aged 43 years, wife of [Late] Subramani, who is confined at Special Prison for women, Vellore and set aside the same and direct the respondents to produce the detenue before this Court and set him at liberty.

For Petitioner :

Mr.D.Balaji 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 C3.D.O.No.92/2014 dated 05.11.2014, whereby the detenue/the mother of the petitioner herein, by name, Thamarai, wife of [Late] Subramani, aged 43 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.D.Balaji, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of non-supply 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 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 and the bail order in the similar case, referred to in the grounds of detention were 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.5 of the Grounds of Detention that in similar case, the accused Ellappan was released on bail by the learned Principal Sessions Judge, Vellore in Crl.MP.No.5481/2013 in respect of the case in Cr.No.1260/2013 for the offences u/s.4[1][i], 4[1][aaa], 4[1-A][ii] TNP Act, on the file of Arcot Town Police Station. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain the document, viz., 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 detenue was likely to be released on bail. Admittedly, such document has 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 and other documents in similar case to the detenue would vitiate the impugned detention order. This order is made only towards setting aside the order of detention passed against the detenue herein. Any bail application moved by the detenue 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 application and the bail order were vital materials for consideration.

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 documents, viz., bail application and bail order etc., 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 //True Copy// Sub Assistant Registrar AP To 1.The Secretary to the Government Home, Prohibition & Excise Department Secretariat, Chennai 600 009.

2.The District Collector & District Magistrate, Vellore District, Vellore-9.

3.The Public Prosecutor, High Court, Madras.

4. The Joint Secretary to Government, Public(Law & order) Fort St. George Chennai-9 5.The Superintendent of Central Prison, Special Prison for Women, Vellore.

HCP.No.3327/2014 VGI(CO) EU 06.05.2015