Tmt.M.Dhanalakshmi v. The Secretary To The

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.06.2015

CORAM:

THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.3662 of 2014 M.Dhanalakshmi ..Petitioner/Mother of the Detenue Vs 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The Commissioner of Police, Chennai Police, Office of the Commissioner of Police, (Goondas Section), Egmore, Chennai-600 008 ..

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 Memo No.1896/BCDFGISSSV/2014, dated 19.11.2014 on the file of the second respondent herein and quash the same and direct the respondents herein to produce the body of the detenu viz., Baskar @ Padappai Baskar, S/o Mani @ Padappai Mani, aged 33 years, now confined in Central Prison, Puzhal, Chennai, before this Court and set him at liberty.

For Petitioner :

Mr.V.Paarthiban For Respondents :

Mr.M.Maharaja, Additional Public Prosecutor

ORDER

(Order of the Court is made by S.TAMILVANAN,J) Challenge is made to the order of detention passed by the second respondent vide Memo No.1896/BCDFGISSSV/2014, dated 19.11.2014, whereby the detenu/the son of the petitioner herein, by name, Baskar @ Padappai Baskar, S/o Mani @ Padappai Mani, aged 33 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 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.4 of the Grounds of Detention that in similar cases the accused were granted bail (a) by this Court in Crl.O.P.No.15963/2011, in respect of the case in Cr.No.272/2011 for the offence under Sections 341, 384 and 506 (ii) IPC on the file of H-1, Washermenpet Police Station and (2) by the Court of Principal Sessions, Chennai in Crl.M.P.No.10264/2012 in respect of Cr.No.1547/2012 on the file of D-3, Ice House Police station for the offences under sections 341, 384, 323, 307 and 506(ii) IPC. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it did 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, those 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 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 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 nonsupply 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 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

To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The Commissioner of Police, Chennai Police, Office of the Commissioner of Police, (Goondas Section), Egmore, Chennai-600 008

3. The Superintendent of Prison, Central Prison, Puzhal, Chennai.

4.The Public Prosecutor, High Court, Chennai.

5.The Joint Secretary to Government Public (L&O) Fort st.George, Chennai.

Pvr(co) krd 29/6 H.C.P.No.3662 of 2014