Rakesh v. Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.NO.1263 OF 2023 Rakesh ..
Petitioner VS.
1.State of Tamil Nadu Rep. By its Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai - 600 009.
2.The Commissioner of Police Avadi City, Chennai.
3.The Inspector of Police T-10, Thirumullaivoyal Police Station Chennai.
4.The Superintendent Central Prison Puzhal, Chennai.
..
Respondents 1/12
PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus to call for the entire records, relating to petitioner's detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 09.03.2023 on the file of the second respondent herein made in proceedings No.64/BCDFGISSSV/2023 and quash the same as illegal and consequently direct the respondents herein to produce the petitioner namely Rakesh aged 22 years, son of Isak, before this Court and set him at liberty, now petitioner detained at Central Prison, Puzhal, Chennai - 600 066.
For Petitioner :
Mr.C.C.Chellappan 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] came up for admission on 18.07.2023, this Bench made an order and a scanned reproduction of the same is as follows:
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2.The aforementioned Admission Board captures all essentials that are imperative for appreciating this order and therefore, we are not setting out the same again. However, short forms, short references and abbreviations used in the Admission Board order will continue to be used in the instant order also for the sake of brevity, convenience and clarity. 3.Mr.C.C.Chellappan, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned Additional Public Prosecutor for all the respondents are before us.
4.To be noted, 'order dated 09.03.2023 bearing reference No.64/BCDFGISSSV/2023' made by second respondent / Detaining Authority shall in this order be referred to as 'impugned preventive detention order' for the sake of convenience and clarity. 5.As would be evident from paragraph 5 of the Admission Board order, at the time of admission, learned counsel for petitioner predicated his challenge to the impugned preventive detention order on the point that Tamil 5/12
translation of some documents (page Nos.35 and 48) have not been furnished to the detenue which prevented the detenu from making an effective representation but in the final hearing Board today, learned counsel 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.
6.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 at under section 294(b), 341, 323, 397, 336, 427 and 506(ii) 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 a real possibility of his coming out on bail in T10 Thirumullaivoyal Police Station Crime No.67/2023 6/12
by filing bail application before the appropriate court, since in a similar case, the bail was granted by the court after a lapse of time...'
7.Thereafter, learned counsel placed before us the grounds booklet as served on the detenu and drew our attention to page Nos.122 to 125 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.
8.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.
9.We carefully considered the rival submissions. We find from 7/12
the confession statement of the detenu at page Nos.36 and 37 of the grounds booklet that the literacy level of the detenu is IX Standard in School. Therefore, it is not merely a case of improper translation it is also a case of giving orders with different contents in English and Tamil version which can baffle a person whose literacy level is only IX Standard in School. This means that (when a detenu is baffled), his right to make an effective representation against the impugned preventive detention order gets impaired. 10.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 8/12
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 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. '
11.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. The net sequitur is, the impugned preventive detention order is vitiated and the same deserves to be dislodged.
12.Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. 13.Ergo, the sequitur is, captioned HCP is allowed. Impugned 9/12
preventive detention order dated 09.03.2023 bearing reference No.64/BCDFGISSSV/2023 made by the second respondent is set aside and the detenu Thiru. Rakesh, male, aged 22 years, son of Thiru. Isak 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.) 12.09.2023 Index : Yes Speaking TK P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
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To 1.The Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai - 600 009.
2.The Commissioner of Police Avadi City, Chennai.
3.The Inspector of Police T-10, Thirumullaivoyal Police Station Chennai.
4.The Superintendent Central Prison Puzhal, Chennai.
5.The Public Prosecutor High Court Madras.
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M.SUNDAR, J.
AND R.SAKTHIVEL, J.
TK H.C.P.NO.1263 OF 2023 12.09.2023 12/12