Kalavathi v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 21.11.2023

CORAM

THE HONOURABLE MR . JUSTICE S.S.SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1283/2023 Kalavathi ..

Petitioner

Versus

1.State rep.by The Secretary to the Government Nadu Home, Prohibition and Excise Department Fort St George, Chennai 600 009.

2.The Commissioner of Police/Detaining Authority, Tambaram City.

3.The Inspector of Police Prohibition Enforcement Wing Guduvancherry, Chengalpet District.

4.The Superintendent Central Prison, Puzhal, Chennai.

.. Respondents Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus calling for the entire records

culminating in the detention of Mr.K.Kathilaraju son of Kathila Thonga Rao under the Act 14 of 1982 vide detention order dated 20.06.2023 on the file of the 2nd respondent herein made in order No.BCDFGISSSV No.27/2023 and quash the same as illegal and consequently direct the respondent herein to produce the body and person of the said detenu K.Kathila Raju son of Kathila Thonga Rao before this Court and thereafter set him free at liberty from the Central Prison, Puzhal, Chennai.

For Petitioner :

Mr.D.Chandra Sekar For Respondents :

Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.Aravind.C

O R D E R

[Order of the Court was made by S.S.SUNDAR, J.] (1)The petitioner, wife of the detenu has come forward with this petition challenging the detention order passed by the 2nd respondent dated 20.06.2023 slapped on her husband, branding him as "Drug Offender" under the Tamil Nadu Act 14 of 1982].

(2)Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. (3)Though several points have been raised by the petitioner, the learned

counsel for the petitioner submitted that the detention order is liable to be quashed on the ground that the detenu's mother tongue is Telugu and the Detention Order, Grounds of Detention and the materials supplied to the detenu in the form of Booklet, are only in English and Tamil language and not in Telugu, the language known to the detenu. Hence, it is submitted that non-furnishing of the vital documents in the language known to the detenu, deprives the detenu of making effective representation against the detention order to the authorities concerned. (4)A perusal of the Detention Order, Grounds of Detention and the Booklet would reveal that all the documents are in English and Tamil and not in Telugu, the language known to the detenu.

This serious infirmity/material irregularity would deprive the detenu of making effective representation to the authorities against the order of detention. (5)In this context, it is useful to refer to the judgment of the Hon'ble Supreme Court in Powanammal Vs. State of Tamil Nadu reported in (1999) 2 SCC 413. The Hon'ble Supreme Court had occasion to deal with similar situation where in the Grounds of Detention referred to an order remanding the detenu therein to judicial custody was in English language.

Since the tamil version of the document was not supplied to the detenue therein, a specific issue was raised by the Hon'ble Supreme Court whether failure to supply tamil version of the remand order passed in English, a language not known to the detenu therein, would vitiate the detenu's further detention. The Hon'ble Supreme Court, after discussing the safeguards embodied in Article 22[5] of the Constitution, observed that the detenu should be afforded an opportunity of making representation effectively against the Detention Order and that, the failure to supply every material in the language which can be understood by the detenu, is imperative. In the said context, the Hon'ble Supreme Court has held in Paragraphs 9 and 16 as follows:

''9.However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas the non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not show that

any prejudice is caused to him. This is because the non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenu's complaint of nonsupply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document would equally apply to furnishing a translated copy of the document in the language known to and understood by the detenu, should the document be in a different language. .....

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 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.''

(6)Thus, the detention order is vitiated on the ground of non-furnishing of

the vital documents in the language known to the detenue and hence, the same is liable to be quashed.

(7)In view of the aforesaid reason, the detention order passed by the 2nd respondent dated 20.06.2023 in BCDFGISSSV No.27/2023 is hereby set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case.

[SSSRJ] [SMJ] 21.11.2023 AP Internet : Yes

To 1.The Secretary to the Government Nadu Home, Prohibition and Excise Department Fort St George, Chennai 600 009.

2.The Commissioner of Police/Detaining Authority, Tambaram City.

3.The Inspector of Police Prohibition Enforcement Wing Guduvancherry, Chengalpet District.

4.The Superintendent Central Prison, Puzhal, Chennai.

5.The Public Prosecutor High Court, Madras.

S.S.SUNDAR, J., AND SUNDER MOHAN, J., AP H.C.P.No.1283/2023 21.11.2023