Sumathi v. The Commissioner Of Police

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.3680 of 2014 Sumathi ..

Petitioner Vs 1.The Commissioner of Police, Chennai City Police, Poonamallee High Road, Vepery, Chennai.

2.Government of Tamilnadu, Rep. By its Secretary, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

3. The Superintendent, Central Prison, Vellore.

` ..

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.1957/BCDFGISSSV/2014, dated 25.11.2014 on the file of the 1st respondent herein and quash the same and direct the respondents herein to produce the body of the detenu viz., Vijay @ Viji, Son of Thavasi, aged 24 years, now confined in Central Prison, Vellore, before this Court and set him at liberty.

For Petitioner :

Ms. S.P.Arthi 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.1957/BCDFGISSSV/2014, dated 25.11.2014, whereby the detenu/the husband of the petitioner

herein, by name, Vijay @ Viji, Son of Thavasi, aged 24 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, Ms.S.P.Arthi, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of non-supply 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 viz., (a) by the Court of V Metropolitan Magistrate Court, Egmore, Chennai in Crl.M.P.Nos. 1258 and 1365/2012 in respect of Crime No.1041/2011 for the offence under sections 457 and 380 IPC on the file of P-3, Vyasarpadi Police Station and (b) by the learned Principal Sessions Judge, Thiruvallur in Crl.M.P.No.712/2012, in respect of the case in Cr.No.464/2012 for the offence under Sections 341, 294(b), 336, 427, 392, 397 and 506(ii) IPC on the file of T-1, Ambattur Police Station. 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. 6.The Honourable Supreme Court in M.Ahamed Kutty Vs. Union of India and another (1990-2-SCC-1) has observed thus:- "7.

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/- Asst.Registrar (CS IV ) /true copy/ Sub Asst. Registrar vsi

To 1.The Commissioner of Police, Chennai City Police, Poonamallee High Road, Vepery, Chennai.

2.The Secretary, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

3. The Superintendent, Central Prison, Vellore.

4. The Joint Secretary to Government Public (law and order) Fort Saint George, Chennai-9 5.The Public Prosecutor, High Court, Chennai.

H.C.P.No.3680 of 2014 KM (CO) kk 26/6