Shanthi v. The State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 17.05.2016

CORAM

THE HON'BLE MR. JUSTICE K.KALYANASUNDARAM AND THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR H.C.P. NO.146 OF 2016 Shanthi ..

Petitioner/Mother of the detenue

Versus

1.The State of Tamil Nadu rep.

by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

2.The Commissioner of Police, Chennai Police.

..

Respondents PRAYER : Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Habeas Corpus to call for the records of the second respondent herein pertaining to the detention order made in Memo No.962/BCDFGISSSV/2015 dated 18.09.2015 and quash the same and direct the respondents to produce the body of the detenu Santhanam, son of Dharmalingam, aged 24 years, now detained in Central Prison, Puzhal, before this Court and set the detenu at liberty forthwith.

For Petitioner :

Mr.S.Sairaman For Respondents:

Mr.M.Maharaja Additional Public Prosecutor

O R D E R

(Order of the Court was made by K.KALYANASUNDARAM, J.) This Habeas Corpus Petition has been filed by the mother of the detenu, namely, Santhanam, son of Dharmalingam, aged 24 years, to issue a Writ of Habeas Corpus, to call for the records, in Memo No.962/BCDFGISSSV/2015 dated 18.09.2015, passed by the second Respondent, detaining the detenu, under Section 3(1) of 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 14/1982) the Tamil Nadu Act 14 of 1982, branding him as a "Goonda", in the Central Prison, Puzhal, Chennai, and to quash the same and to direct the Respondents to produce the body of the detenu and set him at liberty forthwith. 2.We have heard the learned counsel appearing on behalf of the petitioner and the learned Additional Public Prosecutor appearing on behalf of the State and we have also perused the records carefully.

3.Though many grounds have been raised in the petition, Mr.S.Sairaman, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of non-supply of copy of the bail application in the similar case, referred to in the grounds of detention, for arriving at the subjective satisfaction that there is likelihood of the detenu coming out on bail, which has affected the constitutional right of making an effective and purposeful representation to the authorities concerned, thereby vitiating the detention. 4.Per contra, Mr.M.Maharaja, the learned Additional Public Prosecutor would submit that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. However, he submitted that the copy of the bail application in the similar case, referred to in the grounds of detention was not supplied to the detenu.

5.We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and thoroughly scanned through the impugned detention order and the entire materials available on record. 6.It is seen from paragraph No.4 of the Grounds of Detention that in similar case, the accused was released on bail by the learned Principal Sessions Judge, Chennai in Crl.MP.No.2805/2015 in respect of the case in Crime No.384/2015 on the file of R4, Soundarpandiyanar Angadi Police Station for the offences under Sections 341, 392, 397, 294(b), 336, 427 and 506(ii) IPC. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain any of the document, viz., the bail application in respect of the similar case. The said bail application filed in similar case was the document relied upon by the Detaining Authority to come to a subjective satisfaction that the detenu was likely to be released on bail. Admittedly, such documents have not been

supplied to the detenu, as it did not form part of the Paper Book furnished by the Prosecution. Therefore, non supply of the copy of the bail application in similar case to the detenu would vitiate the impugned detention order.

7.The Honourable Supreme Court in M.Ahamed Kutty Vs. Union of India and another (1990-2-SCC-1) has observed thus:- "7. Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case." (Emphasis added)."

8.This Court in Jarinabegam Vs. State of Tamil Nadu by Secretary to Government, Prohibition and Exercise Department, Chennai and another (2007-1-MLJ-Crl-18) relying upon the decision of the Honourable Supreme Court cited supra has held that non supply of the copy of the bail application in similar case to the detenu has the effect of vitiating the order or detention.

9.As already analysed by us, in the facts and circumstances of the present case, non-supply of the documents, viz., bail application in similar case, to the detenu has the effect of vitiating the impugned detention order. Further, due to non-supply of such a vital document, the detenu has lost valuable right to make an effective representation to the authorities concerned.

10.In the light of the above said principles laid down by the Honourable Supreme Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed.

11.In the result, this Habeas Corpus Petition is allowed. The impugned detention order is set aside. The detenu is directed to be released forthwith, unless his presence is required in connection with any other case.

Sd/- Assistant Registrar(CS-VI)/VO //True Copy// Sub Assistant Registrar DP/MVS To 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.

2.The Commissioner of Police, Chennai Police.

3.The Public Prosecutor, High Court of Madras, Chennai - 600 104.

4.The Superintendent Central Prison, Puzhal, Chennai.

5.The Joint Secretary to Government Public (Law & Order), Fort Saint George, Chennai 9.

H.C.P. NO.146 OF 2016 jsv co kra 02.06.2016