Shalini v. The Principal Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.02.2023 Coram The Hon'ble Mr. Justice M.SUNDAR and The Hon'ble Mr. Justice M.NIRMAL KUMAR H.C.P. No.1321 of 2022 Shalini ... Petitioner(wife of detenu) -vs1.The Principal Secretary to Government, Home, Prohibition & Excise Department Secretariat, Fort St. George, Chennai - 600 009.
2.The Commissioner of Police, Greater Chennai, Office of Commissioner of Police, Vepery, Chennai.
3.The Superintendent, Central Prison, Puzhal, Chennai.
... Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus calling for the records pertaining to 1/9
the order of detention passed by the second respondent herein dated 02.06.2022 made in Detention Order No.134/BCDFGISSSV/22 against the detenue Thiru.Mohanasundar, Male, aged 38 years, S/o.Kabali, who is now confined in Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.
For Petitioner ..
Mr.R.Shivakumar for Mr.K.G.Raghunath For Respondents ..
Mr.R.Muniyapparaj Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of convenience and brevity] has been filed by the wife of detenu assailing a 'detention order dated 02.06.2022 bearing reference No.134/BCDFGISSSV/2022' [hereinafter 'impugned detention order' for the sake of convenience and clarity] made by the 'second respondent i.e., jurisdictional Commissioner of Police' [hereinafter 'detaining authority' for the sake of convenience and clarity].
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2.Though very many points have been raised in the affidavit in support of HCP, one point raised by the learned counsel for petitioner finds favour with us and we deem it appropriate to interfere qua the impugned detention order on this one short point.
3.The short point is, in the grounds of detention supplied to the detenu in the form of a booklet [hereinafter 'said booklet' for the sake of convenience and clarity] an order dated 12.04.2022 being an order of remand made by the jurisdictional Magistrate has been annexed at Page No.79 and a scanned reproduction of the same is as follows: 3/9
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4.The Tamil translation of the above at Page No.81 of the said booklet is as follows:
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5.Adverting to the above, learned counsel for petitioner points out that there is no mention in the order of the jurisdictional Magistrate about Section 41(A) notice but that has been inserted in the translation. There is no difficulty in accepting that the translation is incorrect. 6.Learned Additional Public Prosecutor contended that the literacy level of the detenu is good enough to make out this distinction and therefore, it would not cause any prejudice to the detenu. 7.We carefully considered the submissions. We are of the view that in the case on hand, considering the facts and circumstances of the case, it is not a question of understanding that the translation is incorrect but it is a question of detenu getting baffled as to whether there was any reference to Section 41(A) notice.
We also find that a remand order is a very critical document as far as detenu is concerned. This takes us to Clause (5) of Article 22 of the Constitution of India.
Constitution of India. Any infraction of this Constitutional safeguard would become a ground to dislodge a preventive detention order. In the case on hand, we find that the incorrect translation has hampered the detenu's right to make effective representation. As there is an infraction of constitutional safeguard ingrained in Clause (5) of Article 22 of the Constitution of India, we are inclined to set aside the impugned detention order on this ground. 8.Apropos, the sequitur is, captioned HCP is allowed and the detention order dated 02.06.2022 bearing reference No.134/BCDFGISSSV/2022 made by the second respondent is set aside and the detenu Thiru.Mohanasundar, aged 42 years, son of Thiru.Kabali is directed to be set at liberty forthwith unless required in connection with any other case. There shall be no order as to costs. (M.S,J.) (M.N.K.,J.) 21.02.2023 Index:Yes/No cse Note: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai 7/9
To 1.The Principal Secretary to Government, Home, Prohibition & Excise Department Secretariat, Fort St. George, Chennai - 600 009.
2.The Commissioner of Police, Greater Chennai, Office of Commissioner of Police, Vepery, Chennai.
3.The Superintendent, Central Prison, Puzhal, Chennai.
4.The Public Prosecutor, High Court of Madras, Chennai - 104.
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M.SUNDAR, J.
and M.NIRMAL KUMAR, J.
cse H.C.P.No.1321 of 2022 21.02.2023 9/9