Bathulla v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Tmt.Bathulla Wife of Kamaal Alikhan .. Petitioner Vs.
State of Tamil Nadu rep. by 1.
The Secretary to Government Home, Prohibition and Excise Department St. George Fort Chennai - 600 009 2.
Commissioner of Police Greater Chennai Vepery, Chennai - 600 003 3.
The Superintendent Central Prison, Puzhal Chennai - 66 4.
Inspector of Police R8 Vadapalani Police Station Chennai ... Respondents Page Nos.1/11
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of direction calling for the records in detention order passed in No.60/BCDFGISSSV/2023 dated 06.03.2023 on the file of the 2nd respondent herein and set aside the same and direct the respondents to produce the petitioner son Thiru. Afsar Alikhan@Furtheen, son of Kamaal Alikhan, the detenu herein now confined in Central Prison, Puzhal, Chennai before this Court and set him at liberty.
For Petitioner :
Mr.K.Anand for M.Anandaraj For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[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 18.04.2023, this Court made the following order: 'H.C.P.No.611 of 2023 M.SUNDAR, J., and M.NIRMAL KUMAR, J., (Order of the Court was made by M.SUNDAR, J.,) Captioned Habeas Corpus Petition has been filed in this Court on 10.04.2023 inter alia assailing a detention order dated 06.03.2023 Page Nos.2/11
bearing reference BCDFGISSSV No.60/2023 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fourth respondent is the Sponsoring Authority.
2.Mother of the detenu is the petitioner.
3.Learned counsel for petitioner submits that ground case qua the detenu was initially registered for an offence under Sections 294(b), 324, 307, 427, 336 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] in Crime No.16 of 2023 on the file of R-8 Vadapalani 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, Forest-offenders, 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 'live and proximate link' between the grounds of detention and purpose of detention had snapped as 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.' Page Nos.3/11
2. The aforementioned Admission Board order dated 18.04.2023 captures all essentials i.e., essentials imperative for appreciating this order and therefore, we are not setting out the facts again in this final order. Suffice to say that the aforementioned 18.04.2023 Admission Board order shall be read as an integral part and parcel of this final order. 3.Mr.K.Anand, learned counsel representing the counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
4. To be noted, 'detention order dated 06.03.2023 bearing reference BCDFGISSSVNo.60 of 2023 made by the Detaining Authority' shall be referred to as 'impugned preventive detention order' for the sake of brevity and convenience.
5. As would be evident from paragraph 5 of the Admission Board order, at the time of admission, learned counsel for petitioner posited his challenge to the impugned preventive detention order on the point that 'live and proximate link between grounds and purpose of detention had snapped' but today in the final hearing, learned counsel changed his line of attack and submitted that in the grounds booklet running to more than 200 pages, 110 Page Nos.4/11
documents have been annexed, however, after page 218, all the remaining pages contain two page numbers and this has baffled the detenu. A scanned reproduction of the index is as follows:
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6. In response to the aforementioned argument, learned Prosecutor submitted that it is only an inadvertent secretarial / clerical error and petitioner is making a mountain out of a molehill.
7. We carefully considered the rival submissions. We notice that the literacy level of the detenu is X standard in school (a school drop out) is learned petitioner counsel's say. As regards the page numbers, more than two page numbers being assigned to the same page, for a large number of pages, while the index does not mention anything about the same is a phenomenon which would baffle any one and it would baffle more a person with low literacy level. This means that the right of the detenu to make an effective representation qua impugned preventive detention order has been impaired. Impairment of right of the detenu to make an effective Page Nos.8/11
representation is a constitutional safeguard ingrained in Article 22(5) of Constitution of India and therefore, we are unable to accept the submission of learned Prosecutor that it is only an inadvertent secretarial / clerical error. Conversely i.e., axiomatically we sustain the submission of learned counsel for petitioner and the result is, the impugned preventive detention order gets vitiated and becomes liable for being dislodged in habeas legal drill. 8 Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 06.03.2023 bearing reference BCDFGISSSV No.60/2023 made by the second respondent is set aside and the detenu Thiru.Afsar Alikhan @ Furtheen, aged 22 years, son of Thiru.Kamaal Alikhan 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.) 04.09.2023 Index : Yes Speaking order gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai Page Nos.9/11
To 1.
The Secretary to Government Home, Prohibition and Excise Department St. George Fort Chennai - 600 009 2.
Commissioner of Police Greater Chennai Vepery, Chennai - 600 003 3.
The Superintendent Central Prison, Puzhal Chennai - 66 4.
Inspector of Police R8 Vadapalani Police Station Chennai 5.
The Public Prosecutor Madras High Court Page Nos.10/11
M.SUNDAR, J., and R.SAKTHIVEL, J., gpa 04.09.2023 Page Nos.11/11