Sundari v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.No.475 of 2023 Sundari .. Petitioner Vs
1. The State of Tamil Nadu rep. By its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai -9.
2. District Collector and District Magistrate, Thiruvannamalai District, Thiruvannamalai.
3.The Superintendent of Police, Thiruvannamalai District, Thiruvannamalai.
4.The Superintendent of Prison, Central Prison, Vellore - 632 002.
5.Inspector of Police, Pudhupalayam Police Station, Thiruvannamalai District.
.. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire Page Nos.1/8
records leading to the detention of petitioner's husband Kamaraj, son of Subramaniyam, male, aged about 47 years is presently lodged in Central Prison, Vellore - 632 002 and has been detained under Act 14/82 as a Goonda vide detention order dated 05.01.2023 made in D.O.No.5/2023-C2 by the District Collector and District Magistrate of Thiruvannamalai District, Thiruvannamalai and quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from the Central Prison, Vellore at Vellore. For Petitioner :
Mr.M.Rajavelu For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,] When the captioned 'Habeas Corpus Petition' (hereinafter 'HCP' for the sake of convenience and clarity) was listed in the Admission Board on 29.03.2023, this Court made the following order: 'Captioned Habeas Corpus Petition has been filed in this Court on 21.03.2023 inter alia assailing a detention order dated 05.01.2023 bearing reference D.O.No.05/2023-C2 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fifth respondent is the Sponsoring Authority.
Page Nos.2/8
2. Wife of the detenu is the petitioner.
3. Learned counsel for petitioner submits that ground case qua the detenu is for alleged offences under Section 302 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] in Crime No.361 of 2022 on the file of Pudhupalayam Police Station.
4. The aforementioned detention order has been made on the premise that the detenu is a 'Goonda' under Section 2(f) of 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forestoffenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity].
5. The detention order has been assailed inter alia on the ground that there is a delay in passing the detention order.
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
7.
Mr.R.Muniyapparaj, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.'
2. The aforementioned order made in the 29.03.2023 Admission listing shall be read as an integral part and parcel of this order which means that the short forms, short references and abbreviations used in the order in the Admission listing shall be used in the instant order also.
3. There is no adverse case. The ground case which is the sole Page Nos.3/8
substratum of the impugned preventive detention order is Crime No.361 of 2022 on the file of Pudhupalayam Police Station for the alleged offence under Section 302 IPC. Owing to the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.M.Rajavelu, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5. As would be evident from the aforementioned 29.03.2023 order (more particularly paragraph 5 thereat) at the time of admission, learned counsel projected the point that there is delay in passing the detention order, however, in the final hearing today, learned counsel for petitioner posited the argument in his challenge against the impugned preventive detention order on the point that translated copies of the documents relied on by the detaining authority in a language which the detenu is conversant with, have not been furnished to the detenu. Elaborating on the submission, learned Page Nos.4/8
counsel drew our attention to page Nos.89 to 91 of the grounds booklet which are the remand order dated 05.12.2022, remand extension orders dated 19.12.2022 and 02.01.2023 made by learned Judicial Magistrate, Chengam. No Tamil translation of these documents have been furnished to the detenu. We had the benefit of perusing the grounds booklet. We also noticed that the said documents form part of the ground on which the impugned preventive detention order has been made.
6. As this turns on obtaining facts which are before us learned State Additional Public Prosecutor really does not have much of a say.
7. Be that as it may we are informed that the literacy level of the detenu is 10th standard in school and he is a school drop out. We are also informed that the detenu is conversant only with Tamil. We remind ourselves of Powanammal case i.e., Powanammal Vs. State of Tamil Nadu. The question which the Honourable Bench of the Supreme Court addressed to itself in a similar fact situation is captured in paragraph 6 and the manner in which a Honourable Bench of the Supreme Court answered this question is captured in paragraph Page Nos.5/8
16. To be noted, Powanammal case is reported in (1999) 2 SCC 413 and paragraphs 6 and 16 {as in SCC journal} read as follows: '6. The short question that falls for our consideration is whether failure to supply the Tamil version of the order of remand passed in English, a language not known to the detenue, would vitiate her further detention.
16. For the above reasons, in our view, the non-supply of the Tamil version of the English document, on the facts and in the circumstances, renders her continued detention illegal. We, therefore, direct that the detenue be set free forthwith unless she is required to be detained in any other case. The appeal is accordingly allowed. '
8.
In the case on hand, we find that the aforementioned documents which have been relied on as part of the grounds of detention qua impugned preventive detention order are crucial documents and not furnishing the same in Tamil the lone language known to the detenu has impaired his constitutional right to make an effective representation qua the impugned preventive detention order. We therefore have no hesitation in saying that the impugned preventive detention order deserves to be dislodged.
9. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 05.01.2023 bearing reference D.O.No.05/2023-C2 made by the second respondent is set aside and Page Nos.6/8
the detenu Thiru.Kamaraj, aged 47 years, Son of Thiru.Subramaniyan, is directed to be set at liberty forthwith, if not required in connection with any other case / cases. There shall be no order as to costs. (M.S.,J.) (R.S.V.,J.) 31.07.2023 Index : Yes mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Vellore.
To
1. The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai -9.
2. The District Collector and District Magistrate, Thiruvannamalai District, Thiruvannamalai.
3.The Superintendent of Police, Thiruvannamalai District, Thiruvannamalai.
4.The Superintendent of Prison, Central Prison, Vellore - 632 002.
5.The Inspector of Police, Pudhupalayam Police Station, Thiruvannamalai District.
6.The Public Prosecutor, High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and R.SAKTHIVEL, J., mmi H.C.P.No.475 of 2023 31.07.2023 Page Nos.8/8