Syed Dawood v. The Additional Chief Secretary To Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Syed Dawood .. Petitioner Vs 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9.
2.The Commissioner of Police, Office of the Commissioner of Police, Chennai - 07. 3.The Superintendent of Police, Central Prison, Puzhal, Chennai.
4.The Inspector of Police, R1 Mambalam Police Station, Chennai - 107.
.. Respondents 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 08.05.2023 passed by the 2nd respondent in BCDFGISSSV No.148/2023 and quash the same and direct the respondents herein to produce the petitioner's son namely Sadiq Basha, son of Syed Dawood, about 21 years, No.419, Mass Compound, School Road, CIT Nagar, Chennai - 35, who is presently Page Nos.1/13
undergoing detention in the Central Prison, Puzhal, Chennai, before this Court and set him at liberty.
For Petitioner :
Mr.V.Paarthiban for Mr.P.Kannan Kumar For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.C.Aravind
ORDER
[Order of the Court was made by M.SUNDAR, J.,] This order will now dispose of captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity, convenience and clarity].
2. When the captioned HCP was listed for Admission on 26.06.2023, the following proceedings/order was made: 'H.C.P.No.1094 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 16.06.2023 inter alia assailing a detention order dated 08.05.2023 bearing reference BCDFGISSSV No.148/2023 made by Page Nos.2/13
'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fourth respondent is the Sponsoring Authority.
2. To be noted, father of the detenu is the petitioner.
3. Mr.P.Kannan Kumar, learned counsel on record for petitioner is before us. Learned counsel for petitioner submits that ground case qua the detenu is for alleged offences under Sections 147, 148, 341, 294(b), 324 and 506(ii) of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for the sake of brevity] and subsequently, altered into Sections 147, 148, 341, 294(b), 307 and 506(ii) of IPC in Crime No.90 of 2023 on the file of R-1 Mambalam 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, Forestoffenders, Goondas, Immoral traffic offenders, Sandoffenders, 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 some pages in the grounds booklet are not properly translated which prevented the detenu from making an effective representation.
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
Page Nos.3/13
7. Mr.E.Raj Thilak, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.'
3. The aforementioned proceedings/order dated 26.06.2023 captures all essentials i.e., essential facts imperative for appreciating this final order and therefore we are not setting out the facts again. Suffice to say that the aforementioned Admission Board order dated 26.06.2023 shall now be read as an integral part and parcel of the instant final order. This also means that the short forms, short references and abbreviations used in the aforementioned Admission Board order will continue to be used in the instant final order also.
4. Before we proceed further, we make it clear that 'detention order dated 08.05.2023 bearing reference BCDFGISSSV No.148/2023 made by the detaining authority' shall hereinafter be referred to as the 'impugned preventive detention order' for the sake of convenience and clarity.
Page Nos.4/13
5. Mr.V.Paarthiban, learned counsel representing the counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor assisted by Mr.C.Aravind, learned counsel for all the respondents are before us.
6. As would be evident from paragraph 5 of the Admission Board order, learned counsel for the petitioner has posited his challenge to the impugned preventive detention order on the point that some of the pages in the grounds booklet are not properly translated, however, today in the Final Hearing Board, learned counsel for petitioner changed his line of attack qua his campaign against the impugned preventive detention order and submitted that in the grounds booklet running to 167 pages, 65 documents have been annexed, indexed and starting/ending page numbers of each document has been set out in the index but in the booklet from pages 135 to 165 have been given two page numbers in each page and this has baffled the detenu. A scanned reproduction of the index is as follows: Page Nos.5/13
Page Nos.6/13
Page Nos.7/13
7. A scanned reproduction of pages 135, 136 and 137 (as an illustration) is as follows:- Page Nos.8/13
Page Nos.9/13
Page Nos.10/13
8. 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.
9. We carefully considered the rival submissions. We notice that the literacy level of the detenu is low. 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 whose literacy level is low. This means that the right of the detenu to make an effective representation qua impugned preventive detention order has been impaired. Right of the detenu to make an effective 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, the result is, the impugned preventive detention order gets vitiated and becomes liable for being dislodged in this habeas legal drill at hand.
Page Nos.11/13
10. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 08.05.2023 bearing reference BCDFGISSSV No.148/2023 made by the second respondent is set aside and the detenu Thiru.Sadiq Basha, aged 21 years, son of Thiru.Syed Dawood, 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.) 27.09.2023 Index : Yes/No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai - 600 066. To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9.
2.The Commissioner of Police, Office of the Commissioner of Police, Chennai - 07. 3.The Superintendent of Police, Central Prison, Puzhal, Chennai.
4.The Inspector of Police, R1 Mambalam Police Station, Chennai - 107.
5.The Public Prosecutor, High Court, Madras.
Page Nos.12/13
M.SUNDAR, J., and R.SAKTHIVEL, J., mmi 27.09.2023 Page Nos.13/13