Pushba v. The State Of Tamil Nadu,
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.No.874 of 2023 Pushba .. Petitioner / Mother of the detenu Vs 1.
The State of Tamil Nadu Rep. by its Secretary to Government, Home Prohibition & Excise Department Fort St.George Chennai-600 009.
2.
The Commissioner of Police Avadi City Office of the Commissioner of Police (Goondas Section) Avadi Chennai - 600 054 3.
The Superintendent of Police Central Prison, Puzhal 4.
The Inspector of Police M-4, Redhills Police Station Chennai - 600 057 .. Respondents Page Nos.1/10
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records relating to the detention order dated 04.05.2023 in B.C.D.F.G.I.S.S.S.V No.121/2023, quash the same and direct the respondents herein to produce the petitioner's son Dinesh @ Anil, son of Saravanan, aged 24 years, who is presently undergoing detention in the Central Prison, Puzhal, before this Court and set him at liberty.
For Petitioner :
Mr.M.Vetrivel For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by mother of the detenu assailing a 'preventive detention order dated 04.05.2023 bearing reference B.C.D.F.G.I.S.S.S.V No.121 of 2023' [hereinafter 'impugned preventive detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as the impugned preventive detention order has been made by second respondent. Page Nos.2/10
2. Impugned preventive detention order has been made under '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] on the premise that the detenu is a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3. There are four adverse cases. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.150 of 2023 on the file of M-4 Redhills Police Station for alleged offences under Sections 341, 294(b), 397 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. 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.
Page Nos.3/10
4. Mr.M.Vetrivel, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5. Though very many grounds have been raised in the support affidavit, learned counsel for petitioner at the final hearing board predicated his campaign against the impugned preventive detention order on the ground that the subjective satisfaction arrived at by the Detaining Authority qua imminent possibility of detenu being released on bail is impaired. Elaborating on the aforementioned point on subjective satisfaction, learned counsel for petitioner drew our attention to a portion of paragraph 4 of the impugned preventive detention order which reads as follows: '4........ In a similar case registered under section 294(b), 341, 323, 397, 326, 427 and 506(ii) of IPC, in J-4 Kotturpuram Police Station Crime No.43/2018, the bail was granted by the Court of Principal Sessions Judge at Chennai in Crl.M.P.No.1759/2018. Hence, I infer that there is real possibility of his coming out on bail in M-4 Redhills Police Station Cr.No.150/2023 by filing bail application beore the appropriate court, since in similar case bail is granted by the court after a lapse of time.....'
Page Nos.4/10
6.Thereafter, learned counsel placed before us the grounds booklet as served on the detenu and drew our attention to page Nos.152-155 thereat which contain Aravind case bail order (similar case) made in English by the learned Sessions Judge and what according to the Detaining Authority is Tamil translation version of the same i.e., Aravind case bail order. A perusal of the bail order in English and the Tamil translated version brings to light that the bail order in English refers to pending cases against the petitioner with specificity as regards calendar years in paragraph (6) but in the Tamil translation, the same is missing.
7.Learned Prosecutor in response to the above argument submitted that only mentioning of the calender years of pending cases with specificity is missing, the same is clerical error but otherwise the translation is largely correct.
8.We carefully considered the rival submissions. We are of the view that it is not merely a case of improper translation but it is also a case of Page Nos.5/10
giving orders with different contents in English and Tamil version. This means that detenu's right to make an effective representation against the impugned preventive detention order gets impaired.
9. We also remind ourselves of Powanammal case i.e., Powanammal Vs. State of Tamil Nadu, wherein Hon'ble Supreme Court addressed to itself this translation point in a similar fact situation. The question which the Hon'ble Supreme Court addressed to itself is captured in paragraph 6 and the manner in which a Hon'ble Bench of the Supreme Court answered this question is captured in paragraph 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 nonsupply of the Tamil version of the English document, on the facts and in the circumstances, renders her Page Nos.6/10
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. '
10. Therefore, this is a case of improper translation as well as providing documents with different contents in two different languages impairing the detenu's right to make an effective representation. To be noted, such a right of a detenu is a constitutional right being a constitutional safeguard ingrained in Article 22(5) of the Constitution and infraction of such a safeguard vitiates the impugned preventive detention order rendering it liable for dislodgement in a habeas legal drill. The net sequitur is, the impugned preventive detention order is vitiated and the same deserves to be dislodged.
11. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. Page Nos.7/10
12. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 04.05.2023 bearing reference B.C.D.F.G.I.S.S.S.V No.121 of 2023 made by the second respondent is set aside and the detenu Thiru.Dinesh @ Anil, son of Thiru.Saravanan, male, aged 24 years, 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 Internet : Yes gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
Page Nos.8/10
To 1.
The Secretary to Government, Home Prohibition & Excise Department Fort St.George Chennai-600 009.
2.
The Commissioner of Police Avadi City Office of the Commissioner of Police (Goondas Section) Avadi Chennai - 600 054 3.
The Superintendent of Police Central Prison, Puzhal 4.
The Inspector of Police M-4, Redhills Police Station Chennai - 600 057 5.
The Public Prosecutor, High Court, Madras.
Page Nos.9/10
M.SUNDAR, J., and R.SAKTHIVEL, J., gpa H.C.P.No.874 of 2023 11.09.2023 Page Nos.10/10