Vinothini v. Additional Chief Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.Nos.491,546, 547, 548, 549, 551, 552, 553 and 1464 of 2023 H.C.P.No.491 of 2023 Vinothini .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate, Thiruvarur District, Thiruvarur.
3.The Superintendent of Police, Thiruvarur District, Thiruvarur.
4.The Inspector of Police, Koradacherry Police Station, Thiruvarur District.
5.The Superintendent of Prison, Central Prison, Tiruchirappalli.
.. Respondents 1/51
H.C.P.No.546 of 2023 Arulselvi .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Thiruvarur District.
3.The Superintendent of Police, O/o. Superintendent of Police, Thiruvarur District.
4.The Superintendent of Prison, Trichy Central Prison, Trichy District.
5.The Inspector of Police, Kudavasal Police Station, Thiruvarur District.
.. Respondents H.C.P.No.547 of 2023 Yuvarani .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Thiruvarur District.
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3.The Superintendent of Police, O/o. Superintendent of Police, Thiruvarur District.
4.The Superintendent of Prison, Trichy Central Prison, Trichy District.
5.The Inspector of Police, Kudavasal Police Station, Thiruvarur District.
.. Respondents H.C.P.No.548 of 2023 Kalaiselvi .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Thiruvarur District.
3.The Superintendent of Police, O/o. Superintendent of Police, Thiruvarur District.
4.The Superintendent of Prison, Trichy Central Prison, Trichy District.
5.The Inspector of Police, Kudavasal Police Station, Thiruvarur District.
.. Respondents 3/51
H.C.P.No.549 of 2023 Mohanraj .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Thiruvarur District.
3.The Superintendent of Police, O/o. Superintendent of Police, Thiruvarur District.
4.The Superintendent of Prison, Trichy Central Prison, Trichy District.
5.The Inspector of Police, Kudavasal Police Station, Thiruvarur District.
.. Respondents H.C.P.No.551 of 2023 Radha .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Thiruvarur District.
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3.The Superintendent of Police, O/o. Superintendent of Police, Thiruvarur District.
4.The Superintendent of Prison, Trichy Central Prison, Trichy District.
5.The Inspector of Police, Kudavasal Police Station, Thiruvarur District.
.. Respondents H.C.P.No.552 of 2023 Sunseya .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Thiruvarur District.
3.The Superintendent of Police, O/o. Superintendent of Police, Thiruvarur District.
4.The Superintendent of Prison, Trichy Central Prison, Trichy District.
5.The Inspector of Police, Kudavasal Police Station, Thiruvarur District.
.. Respondents 5/51
H.C.P.No.553 of 2023 Vembu .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Thiruvarur District.
3.The Superintendent of Police, O/o. Superintendent of Police, Thiruvarur District.
4.The Superintendent of Prison, Trichy Central Prison, Trichy District.
5.The Inspector of Police, Kudavasal Police Station, Thiruvarur District.
.. Respondents H.C.P.No.1464 of 2023 G.Baby .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Thiruvarur District.
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3.The Superintendent of Police, O/o. Superintendent of Police, Thiruvarur District.
4.The Superintendent of Prison, Trichy Central Prison, Trichy District.
5.The Inspector of Police, Kudavasal Police Station, Thiruvarur District.
.. Respondents Prayer in HCP No. 491 of 2023: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records in connection with the order of detention passed by the second respondent dated 06.03.2023 in C.O.C.No.19/2023 against the petitioner's husband Sivakalidoss @ Kalidoss, son of Siva, aged about 33 years, who is confined at Central Prison, Tiruchirappalli and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.
Prayer in HCP No.546 of 2023:
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the detention order in C.O.C.No.24/2023 dated 06.03.2023 on the file of the respondent No.2 and quash the same and direct the respondents to produce the body and person of petitioner's son one named Thiru.China Kali @ Kalidoss, S/o.Packirisamy aged about 27 years, now confined at Central Prison, Trichy, before this Court and set him at liberty forthwith.
Prayer in HCP No. 547 of 2023:Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the detention order in C.O.C.No.18/2023 dated 06.03.2023 on the file of the respondent no.2 and quash the same and direct the respondents to produce the body and person of petitioner's husband one named Thiru.Periya 7/51
Thambi @ Rajasekar, S/o.Ravi Devar, aged about 30 years, now confined at Central Prison, Trichy, before this Court and set him at liberty forthwith.
Prayer in HCP No.548 of 2023:
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the detention order in C.O.C.No.22/2023 dated 06.03.2023 on the file of the respondent no.2 and quash the same and direct the respondents to produce the body and person of petitioner's husband one named Thiru.Sorappu Ganesan @ Ganesan, S/o.Arumugam, aged about 24 years, now confined at Central Prison, Trichy, before this Court and set him at liberty forthwith.
Prayer in HCP No.549 of 2023: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the detention order in C.O.C.No.24/2023 dated 06.03.2023 on the file of the respondent no.2 and quash the same and direct the respondents to produce the body and person of petitioner's son one named Thiru.Periyappu @ Sujith, S/o.Mohanraj, aged about 25 years, now confined at Central Prison, Trichy, before this Court and set him at liberty forthwith. Prayer in HCP No.551 of 2023 : Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the detention order in C.O.C.No.25/2023 dated 06.03.2023 on the file of the respondent no.2 and quash the same and direct the respondents to produce the body and person of petitioner's son one named Thiru.Santhosh, S/o.Thiyagarajan, aged about 22 years, now confined at Central Prison, Trichy, before this Court and set him at liberty forthwith.
Prayer in HCP No.552 of 2023:
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the detention order in C.O.C.No.23/2023 dated 06.03.2023 on the file of 8/51
the respondent no.2 and quash the same and direct the respondents to produce the body and person of petitioner's husband one named Thiru.Sabarinathan, S/o.Kalaimani, aged about 24 years, now confined at Central Prison, Trichy, before this Court and set him at liberty forthwith.
Prayer in HCP No.553 of 2023 : Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the detention order in C.O.C.No.21/2023 dated 06.03.2023 on the file of the respondent no.2 and quash the same and direct the respondents to produce the body and person of petitioner's son one named Thiru.Santhoshkumar, S/o.Thangaiyan, aged about 20 years, now confined at Central Prison, Trichy, before this Court and set him at liberty forthwith.
Prayer in HCP No.1464 of 2023 :
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the detention order in C.O.C.No.20/2023 dated 06.03.2023 on the file of the respondent no.2 and quash the same and direct the respondents to produce the body and person of petitioner's son one named Thiru.Muruga @ Vasanthakumar, S/o.Gopi, aged about 23 years, now confined at Central Prison, Trichy, before this Court and set him at liberty forthwith.
For Petitioner :
Mr.V.Paarthiban for Mr.A.Ilayaperumal in HCP No.491 of 2023 Mr.P.Muthamizh Selvakumar in HCP Nos. 546 to 549, 551 to 553 & 1464 of 2023 For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor for all the respondents in all HCPs 9/51
COMMON ORDER [Order of the Court was made by M.SUNDAR, J.,] This common order will now dispose of the captioned nine 'Habeas Corpus Petitions' ('HCPs' in plural and 'HCP' in singular for the sake of convenience and clarity).
2. When the captioned HCPs were listed for Admission, the following orders were made:
HCP No.491 of 2023 10/51
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HCP No.546 of 2023 12/51
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HCP No.547 of 2023 14/51
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HCP No.548 of 2023 16/51
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HCP No.549 of 2023 18/51
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HCP No.551 of 2023 20/51
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HCP No.552 of 2023 22/51
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HCP No.553 of 2023 24/51
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HCP No.1464 of 2023 26/51
3. The aforementioned Admission Board orders capture essentials i.e., essential facts that are imperative for appreciating this common final order and therefore this Court is not setting out the facts 27/51
again in this common final order. Before we proceed further, proceedings/orders made in the listings on 21.08.2023 and 04.09.2023 in five out of nine captioned HCPs i.e., H.C.P.Nos.491,546, 547, 548 and 549 of 2023 read as follows:
21.08.2023 proceedings:
' H.C.P.Nos.491,546, 547, 548 and 549 of 2023 M.SUNDAR, J.
and R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR, J.,) This Court is informed by Mr.E.Raj Thilak, learned State Additional Public Prosecutor that there are four more connected HCPs. To be noted, co-accused in the ground case also have been clamped with preventive detention orders akin to impugned preventive detention orders and therefore it is submitted that the four HCPs are also connected HCPs. The number of four HCPs are H.C.P. Nos.551, 552, 553 and 1464 of 2023.
2. List captioned five HCPs along with aforementioned four HCPs (Nine HCPs altogether by tagging them with the captioned HCPs) on 04.09.2023. To be noted, as regards the aforementioned four HCPs to be tagged, we are also informed that the same are already scheduled to come up on 04.09.2023.
3. List all nine HCPs as one item (tagged together) on 04.09.2023.'
04.09.2023 proceedings:
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' H.C.P.Nos.491,546, 547, 548 and 549 of 2023 M.SUNDAR, J.
and R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR, J.,) Read this in conjunction with and in continuation of earlier proceedings made in the previous listings, more particularly the listings on 30.03.2023 (H.C.P. No.491 of 2023), 11.04.2023 (H.C.P. Nos.546 and 547 of 2023), 12.04.2023 (H.C.P. Nos.548 and 549 of 2023).
2. Thereafter, the captioned nine matters were tagged and the same have been listed together today.
3. Mr.V.Paarthiban, learned counsel appearing on behalf of the counsel on record for the petitioner in H.C.P. No.491 of 2023 is before us. Mr.V.Paarthiban is the lead counsel qua captioned matters.
4. As regards the respondents, Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all the respondents in all the nine HCPs is before us.
5. Learned Prosecutor wanted to make a threshold submission and therefore he was given audience before learned counsel for petitioner. Learned Prosecutor, adverting to sub-sections (3) and (5) of Section 15-A of 'Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989' (hereinafter 'SC/ST (PoA) Act' for the sake of convenience and clarity) submitted that the 29/51
victim has to be put on notice in the captioned HCPs also.
6. Responding to the aforementioned threshold submission, learned counsel for petitioners submitted that both the aforementioned sub- sections would apply only to proceedings under SC/ST (PoA) Act as the expression used in both the aforementioned sub-sections is 'this Act'. Learned counsel pointed out that 'this Act' refers to SC/ST (PoA) Act. It was submitted that Act 14 of 1982 is a Statute under which the impugned preventive detention order has been made and therefore aforementioned subsections (3) and (5) of Section 15-A of SC/ST (PoA) Act will not apply.
7. Learned Prosecutor pressed into service a judgment of Hon'ble Supreme Court in Hariram Bhambhi Vs. Satyanarayan and Another reported in 2021 SCC OnLine SC 1010 in support of his contention that notice should go to the victim. A perusal of facts in Hariram's case brings to light that in an appeal to the High Court against rejection of second bail application victim was not put on notice.
8. Be that as it may, we wanted to look at the 'Statement of Objects and Reasons' (SOR) qua Act 1 of 2016 in and by which the entire chapter viz., Chapter IV A captioned 'Rights of Victims and Witnesses' was inserted in SC/ST (PoA) Act.
9. One sub-paragraph of aforementioned SOR has 30/51
been extracted and set out in Hariram case vide paragraph 11 and the same reads as follows:- : '11. Section 15A, which comes under Chapter IV-A of the SC/ST Act titled 'Rights of victims and witnesses', was introduced by way of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The Statement of Objects and Reasons that accompanied the insertion of Chapter IV-A reads as follows:
''(h) to insert a new Chapter IVA relating to "Rights of Victims and Witnesses" to impose certain duties and responsibilities upon the State for making necessary arrangements for protection of victims, their dependents and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence.''
'
10. To be noted, aforementioned 'h' is subparagraph (h) of paragraph 5 of the SOR. The entire SOR reads as follows:
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11. Learned counsel for petitioner pointed out that Act 14 of 1982 cannot be clamped qua SC/ST (PoA) Act as the scheme of Act 14 of 1982 does not provide for the same.
12.The above aspect/s will be examined in the listings in the ensuing listing/s.
13. Another feature that may have to be examined is unlike other proceedings under SC/ST (PoA) Act, there is no trial or hearing qua Preventive Detention Act except the hearing in the habeas drill.
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14. In the light of the narrative thus far, both sides requested for a short accommodation to examine the position further and revert to this Court.
15. List one week hence. List on 11.09.2023.'
4. The aforementioned two proceedings i.e., proceedings dated 21.08.2023 and 04.09.2023 made in five HCPs are tell-tale as to the trajectory the captioned HCPs have taken before us and the proceedings are also tell-tale as to how the captioned nine HCPs were tagged and listed together as one serial number in the cause list today.
5. Be that as it may, we make it clear that aforementioned nine Admission Board orders as well as aforesaid proceedings/orders dated 21.08.2023 and 04.09.2023 shall also be read as an integral part and parcel of this common final order.
6. Let us now take up the point that was brought up by learned Prosecutor as regards the victim being put on notice which has been captured in aforementioned 04.09.2023 proceedings. To be noted, this turns on sub-sections (3) and (5) of Section 15-A of SC/ST (PoA) Act. After carefully considering the submissions made at the bar by both sides, we come to the conclusion that sub-sections (3) and (5) of Section 15-A of SC/ST (PoA) Act will not apply to HCPs where 35/51
preventive detention orders are assailed. The discussion and dispositive reasoning in this regard i.e., reasons are as follows: 6.1 Habeas legal drill is qua a constitutional remedy under Article 226 of the Constitution of India more particularly Article 226(1) and therefore HCPs will not be covered by the expression 'proceedings under this Act' occurring in sub-sections (3) and (5) of Section 15-A of SC/ST (PoA) Act;
6.2 As regards sub-section (5) of Section 15-A of SC/ST (PoA) Act, it also talks about 'connected proceedings' but plain language of subsection (5) of Section 15-A of SC/ST (PoA) Act is very clear that 'connected proceedings' pertains to (a)conviction, (b)acquittal and/or (c) sentence. Therefore HCPs will not come within the sweep of 'connected proceedings' expression deployed in sub-section (5) of Section 15-A of SC/ST (PoA) Act;
6.3 As regards Hariram Bhambhi's case alluded to in paragraph 7 of our aforementioned 04.09.2023 proceedings, the same pertains to an appeal to the High Court against rejection of a second 36/51
bail application. Before proceeding further in this regard we remind ourselves of the declaration of law made by Constitution Bench in the celebrated Padma Sundara Rao case [Padma Sundara Rao Vs. State of Tamil Nadu reported in (2002) 3 SCC 533] as regards precedents/citing case laws as precedents and the relevant paragraph is paragraph 9 which reads as follows:
'9.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]]. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.'
Therefore, it will suffice to respectfully say that Hariram Bhambhi's case does not deal with a habeas corpus petition. However, a further buttressing factor is, as regards appeal to the High Court against rejection of a bail application under SC/ST (PoA) Act, the same will be a statutory appeal under Section 14-A (2) of SC/ST (PoA) Act and therefore the expressions 'proceedings under this Act', 37/51
'proceeding under this Act' and 'connected proceedings' in sub-sections (3) and (5) of Section 15-A of SC/ST (PoA) Act would apply. 6.4 In the case on hand, the impugned preventive detention orders have been made under Tamil Nadu Act 14 of 1982. Section 3(1) of TN Act 14 of 1982 captioned 'Power to make orders detaining certain persons' makes it clear that a preventive detention order can be clamped for preventing a person from acting in any manner prejudicial to the maintenance of public order, the expression 'acting in any manner prejudicial to the maintenance of public order' has been described [though section 2 of TN Act 14 of 1982 is captioned 'Definitions' this Court chooses to say that the expression has been 'described' owing to the nature of the expression and the language of Section 2(1)(a)] vide Section 2(1)(a) of TN Act 14 of 1982.
Section 2 (1)(a) of TN Act 14 of 1982 reads as follows:
2. Definitions.- (1) In this Act, unless the context otherwise requires,- (a) "acting in any manner prejudicial to the maintenance of public order" means - (i) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order;
(i-A) in the case of a cyber law offender, when he is 38/51
engaged, or is making preparations for engaging, in any of his activities as a cyber law offender, which affect adversely, or are likely to affect adversely, the maintenance of public order; (ii) in the case of a drug-offender, when he is engaged, or is making preparations for engaging, in any of his activities as a drug-offender, which affect adversely, or are likely to affect adversely, the maintenance of public order;
(ii-A). in the case of a forest-offender, when he is engaged, or is making preparations for engaging, in any of his activities as a forest-offender, which affect adversely, or are likely to affect adversely, the maintenance of public order;
(iii) in the case of a goonda, when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order;
(iv) in the case of an immoral traffic offender when he is engaged, or is making preparations for engaging in any of his activities as an immoral traffic offender, which affect adversely, or are likely to affect adversely, the maintenance of public order; (iv-A) in the case of a sand-offender, when he is engaged, or is making preparations for engaging, in any of his activities as a sand-offender, which affect adversely, or are likely to affect adversely, the maintenance of public order.
(iv-B) in the case of a sexual-offender, when he is engaged, or is making preparations for engaging, in any of his activities as a sexual-offender, which affect adversely, or are likely to affect adversely, the maintenance of public order. (v) in the case of a slum-grabber, when he is engaged, or is making preparations for engaging, in any of his activities as a slum-grabber, which affect adversely, or are likely to affect adversely, the maintenance of public order.
(vi) in the case of a video pirate, when he / she is engaged or is making preparations for engaging, in any of his / her activities as a video pirate, which affect adversely, or are likely to affect adversely the maintenance of public order. Explanation.- For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities or any of the persons referred to in this clause (a) directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health or ecological system;
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6.5 A careful perusal of aforementioned Section 2(1)(a) of Tamil Nadu Act 14 of 1982 makes it clear that it does not cover within its sweep offences under the Special Statute viz., SC/ST (PoA) Act. Therefore, only IPC offences qua the detenus in the captioned nine HCPs have to be considered. In this view of the matter also, subsections (3) and (5) of Section 15-A of SC/ST (PoA) Act does not come into play;
6.6 The ground case qua nine detenus in the captioned nine HCPs is Spl.S.C.No.51 of 2023 on the file of I Additional District and Sessions Judge, Thanjavur (hereinafter 'said Special Court' for the sake of convenience). Learned Prosecutor submits on instructions that in the said Special Court, charge sheet has been filed against all nine detenus on 17.07.2023 and the next hearing date is 14.09.2023. In this regard, Mr.V.Paarthiban, learned counsel appearing on behalf of the petitioner in HCP No.491 of 2023 submits on instructions from Mr.A.Ilayaperumal, learned counsel on record for petitioner in HCP No.491 of 2023 and Mr.P.Muthamizh Selvakumar, learned counsel on record for petitioners in other eight HCPs that bail applications were moved for all the nine detenus in the said Special Court and the same have been dismissed. Therefore, if at all and if it be so, nine detenus 40/51
qua captioned HCPs should file appeals (against rejection of bail) in this Court under Section 14-A(2) of SC/ST (PoA) Act. We make it clear that if the detenus file appeals under Section 14-A(2) of SC/ST (PoA) Act, sub-sections (3) and (5) of Section 15-A of SC/ST (PoA) Act will come into play, the victim and or their dependants shall be entitled to be heard. To be noted, the amendment (SOR) brought into SC/ST (PoA) Act by introducing Chapter IV-A captioned 'Rights of Victims and Witnesses' on and from 26.01.2016 has been extracted and reproduced in its entirety in our 04.09.2023 proceedings. We make it clear rights inter-alia of victims stand preserved; 6.7 As regards the habeas legal drill on hand, it is a legal contestation between a detenu or a HCP petitioner on behalf of the detenu on one side and the State on the other.
It turns on technicalities and procedural fairness in making of the preventive detention order and there is no trial. In this regard, we remind ourselves that in A.K.Gopalan Vs. State of Madras reported in AIR 1950 SC 27: 1950 SCC 228, it was held that the charter of rights adumbrated in Articles 19 and 21 are distinct and the lone dissenter was Hon'ble Mr. Justice Fazl Ali (as His Lordship then was). The dissenting view of Hon'ble Mr. Justice Fazl Ali in A.K.
was subsequently held to be correct law impliedly vide R.C.Cooper Vs. Union of India reported in (1970) 1 SCC 248 and directly vide Sambu Nath Sarkar Vs. State of West Bengal reported in (1973) 1 SCC 856. Therefore, the obtaining legal position as regards a habeas legal drill is, procedural fairness is an integral part of making preventive detention orders and a habeas legal drill would primarily test this inter-alia on technicalities attendant thereto. In this view of the matter also, it is a contestation qua the State.
7. This Court having cleared the air and having cleared the clutter qua sub-sections (3) and (5) of Section 15-A of SC/ST (PoA) Act, now reverts to the habeas legal drill on hand.
8. One common point that has been urged as regards the petitioners' campaign against nine impugned preventive detention orders is subjective satisfaction arrived at by the detaining authority qua imminent possibility of detenus being enlarged on bail is flawed/impaired. Elaborating on this point, Mr.V.Paarthiban learned counsel drew our attention to a portion of paragraph 5 of the grounds of impugned preventive detention orders which reads as follows: '5....I am aware that Thiru.Sivakalidoss @ Kalidoss, male, aged 33/2023, S/o.Siva was produced before the 42/51
Judicial Magistrate Court, Tiruvarur in Kudavasal Police Station Cr.No.33/2023 u/s 147, 148, 341, 294(b), 302 IPC r/w 3(1)(r), 3(1)(s) and 3(2)(va) of SC/ST (POA) Amendment Act 2015 and was remanded to judicial custody and lodged at Central Prison, Tiruchirappalli on 01.02.2023. His remand period was upto 15.02.2023. Further his remand period has been extended upto 01.03.2023. Further his remand period has been extended upto 15.03.2023......'
9. To be noted, the aforementioned extracted portion is ad verbatim repeated in all nine impugned preventive detention orders.
10. Adverting to the aforementioned portion of the grounds of impugned preventive detention orders, learned counsel drew our attention to the grounds booklet i.e., the booklet containing the grounds which form the basis of grounds of impugned preventive detention orders served on the detenus and submitted that the remand extension order made by said Special Court has not been correctly translated.
11. We had the benefit of perusing the grounds booklet and we find that as regards the remand extension on 15.02.2023 i.e., remand 43/51
extension upto 01.03.2023 order made by the learned Special Court Judge clearly says that the accused were produced through video conference but Tamil translation says that the accused were produced meaning the accused were physically produced before the said Special Court. This is clearly a flaw in the translation. Considering the low literacy level of the nine detenus we are of the view that Powanammal principle is attracted i.e., ratio laid down by Hon'ble Supreme Court in Powanammal Vs. State of Tamil Nadu reported in (1999) 2 SCC 413 and the relevant 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. '
12. Besides Powanammal principle we also find that the remand order is a technical legal document and therefore it is imperative that 44/51
the Tamil translation is accurate. Be that as it may, as regards technical legal document two different versions in English and Tamil would baffle any individual and more so when the detenus have low literacy level. This means or in other words the sequitur is, rights of the detenus to make effective representation qua preventive detention orders is a sacrosanct constitutional safeguard ingrained in Article 22(5) of the Constitution of India and a breach of the same vitiates preventive detention orders leaving the same liable for being dislodged in a habeas legal drill. In the light of the narrative thus far, we have no hesitation in saying that captioned HCPs are such cases where there is breach of Article 22(5) of Constitution of India. Therefore, the incorrect translation and two different versions of remand extension orders in English and Tamil have vitiated the impugned preventive detention orders for more than one reason and all nine impugned preventive detention orders deserve to be dislodged in this habeas legal drill.
13. Ergo, the sequitur is, captioned HCP No.491 of 2023 is allowed. Impugned preventive detention order dated 06.03.2023 bearing reference C.O.C.No.19/2023 made by the second respondent is set aside and the detenu Thiru.Sivakalidoss @ Kalidoss, aged 33 years, Son of Thiru.Siva, is directed to be set at liberty forthwith, if not 45/51
required in connection with any other case / cases. There shall be no order as to costs.
13.1 Apropos, the sequitur is, captioned HCP No.546 of 2023 is allowed. Impugned preventive detention order dated 06.03.2023 bearing reference C.O.C.No.17/2023 made by the second respondent is set aside and the detenu Thiru.China Kali @ Kalidoss, aged 27 years, Son of Thiru.Packirisamy, 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.
13.2 Therefore, captioned HCP No.547 of 2023 is allowed. Impugned preventive detention order dated 06.03.2023 bearing reference C.O.C.No.18/2023 made by the second respondent is set aside and the detenu Thiru.Periya Thambi @ Rajasekar, aged 30 years, Son of Thiru.Ravi Devar, 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.
13.3 In the result, captioned HCP No.548 of 2023 is allowed. 46/51
Impugned preventive detention order dated 06.03.2023 bearing reference C.O.C.No.22/2023 made by the second respondent is set aside and the detenu Thiru.Sorappu Ganesan @ Ganesan, aged 24 years, Son of Thiru.Arumugam, 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.
13.4 Finally, captioned HCP No.549 of 2023 is allowed. Impugned preventive detention order dated 06.03.2023 bearing reference C.O.C.No.24/2023 made by the second respondent is set aside and the detenu Thiru.Periyappu @ Sujith, aged 25 years, Son of Thiru.Mohanraj, 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.
13.5 In the light of the narrative, discussion and dispositive reasoning supra, captioned HCP No.551 of 2023 is allowed. Impugned preventive detention order dated 06.03.2023 bearing reference C.O.C.No.25/2023 made by the second respondent is set aside and the detenu Thiru.Santhosh, aged 22 years, Son of Thiru.Thiyagarajan, is directed to be set at liberty forthwith, if not required in connection with 47/51
any other case / cases. There shall be no order as to costs. 13.6 In conclusion, captioned HCP No.552 of 2023 is allowed. Impugned preventive detention order dated 06.03.2023 bearing reference C.O.C.No.23/2023 made by the second respondent is set aside and the detenu Thiru.Sabarinathan, aged 24 years, Son of Thiru.Kalaimani, 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.
13.7 Writing the operative portion, we say, captioned HCP No.553 of 2023 is allowed. Impugned preventive detention order dated 06.03.2023 bearing reference C.O.C.No.21/2023 made by the second respondent is set aside and the detenu Thiru.Santhoshkumar, aged 20 years, Son of Thiru.Thangaiyan, 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.
13.8 Sum sequitur of discussion/dispositive reasoning supra is captioned HCP No.1464 of 2023 is allowed. Impugned preventive detention order dated 06.03.2023 bearing reference 48/51
C.O.C.No.20/2023 made by the second respondent is set aside and the detenu Thiru.Muruga @ Vasanthakumar, aged 23 years, Son of Thiru.Gopi, 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.) 11.09.2023 Index : Yes mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Trichy.
To
1. The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2. The District Collector and District Magistrate, Thiruvarur District, Thiruvarur.
3.The Superintendent of Police, Thiruvarur District, Thiruvarur.
4.The Inspector of Police, Koradacherry Police Station, Thiruvarur District. 5.The Inspector of Police, Kudavasal Police Station, Thiruvarur District. 49/51
6.The Superintendent of Prison, Central Prison, Tiruchirappalli.
7.The Public Prosecutor, High Court, Madras.
50/51
M.SUNDAR, J., and R.SAKTHIVEL, J., mmi H.C.P.Nos.491,546 to 549, 551 to 553 & 1464 of 2023 11.09.2023 51/51