Kuttiyammal v. State Rep By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 23.11.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1396/2023 Kuttiyammal ..
Petitioner
Versus
1.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/Detaining Authority Avadi City, Tiruvallur District.
3.Superintendent of Prison Central Prison, Puzhal Chennai.
4..The Inspector of Police E5 Sholavaram Police Station Tiruvallur District.
.. Respondents
Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus calling for the records in connection with the order of detention passed by the 2nd respondent made in his order No.164/BCDFGISSSV//2023 dated 24.06.2023 against the petitioner's son Suriya son of Mani, aged about 23 years who is confined at Central Prison, Puzhal, Chennai, under Tamil Nadu Act, 14 of 1982 as Goonda and to quash the same and direct the respondents to produce the detenu Suriya son of Mani, aged about 23 years before this Court and set him at liberty.
For Petitioner :
Mr.M.Arunkumar For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.Aravind.C
ORDER
[Order of the Court was made by S.S.SUNDAR, J.] (1)The petitioner, mother of the detenu herein, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 24.06.2023 slapped on her son, branding him as "Goonda" 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 grounds are raised in the petition, the learned counsel for the petitioner contended that the bail order in the similar case in
Crl.MP.No.10485/2021 relied on by the Detaining Authority to arrive at the subjective satisfaction that the detenu is likely to be released on bail, was obtained during COVID-19 situation and that placing reliance on such order shows the non-application of mind on the part of the Detaining Authority.
(4)On a perusal of the Grounds of Detention, it is seen that the Detaining Authority had relied upon the orders of bail in similar case in Crl.MP.No.10485/2021 passed by the learned Principal Sessions Judge, Chennai. However, in the Booklet, in particular, page No.270, it is seen that the bail order in the similar case was obtained during COVID-19 situation and bail was granted to the accused therein with a specific reference to COVID-19. It is in the said circumstances, this Court finds that the subjective satisfaction arrived at by the Detaining Authority to hold that the detenu is likely to be released on bail, suffers from nonapplication of mind. (5)The Hon'ble Supreme Court, in the case of Rekha Vs. State of Tamil Nadu through Secretary to Government and Another reported in 2011 [5] SCC 244, has considered a case where it is stated that in the grounds
of detention that relatives of detenu are taking action to take him on bail in the criminal case in which the detenu was in remand and that in similar case, bail was granted by Courts. Since no details had been given about the alleged similar cases in which bail was allegedly granted by the Court concerned, it is held by Hon'ble Supreme Court that in the absence of details, the statement which is mere ipse dixit, cannot be relied upon and that itself is sufficient to vitiate the detention order. When the subjective satisfaction was irrational or there was non-application of mind, the Hon'ble Supreme Court held that the order of detention is liable to be quashed. It is relevant to extract paragraphs No.10 and 11 of the said judgment of the Hon'ble Supreme Court:- ''10.
the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.''
(6)The learned counsel for the petitioner also pointed out that the Detaining that the order of Detention passed by the Detaining Authority suffers from non application of mind as paragraph No.6 of the similar case bail order in Crl.MP.No.1759/2018 in the English version in the Booklet, differs in the vernacular version.
(7)On a perusal of the Booklet, in particular, page No.266, it is seen that bail order in Crl.MP.No.1759/2018 granted to the accused in a similar case has been furnished and in paragraph No.6, it is stated as follows:-''......The murder case pending against the petitioner is of the year 2012 and another case is of the year 2014...''. However, in the translated copy of the said bail order in the vernacular version, it is stated as follows:-'',td; kPJ Vw;fdnt bfhiy tHf;F kw;Wk; bfhiy Kaw;rp tHf;F cs;sJ//////'' Hence, it is seen that there is an improper translation of the similar case bail order in the vernacular version.
(8)It is in the said circumstances, this Court finds that serious prejudice is caused to the detenu on account of improper translation in making effective representation against the Detention Order and that the Detention Order passed by the Detaining Authority is vitiated. (9)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 in SCC journal} 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.
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.''
(10)In view of the ratio laid down by the Hon'ble Supreme Court and in view of the aforesaid facts, the detention order passed by the 2nd respondent dated 24.06.2023 in No.164/BCDFGISSSV/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] [SM J] 23.11.2023 AP Internet: Yes
To 1.The Secretary to Government State of Tamil Nadu Home, Prohibition and Excise Department Fort St George, Chennai 600 009.
2.The Commissioner of Police/Detaining Authority Avadi City, Tiruvallur District.
3.Superintendent of Prison Central Prison, Puzhal Chennai.
4..The Inspector of Police E5 Sholavaram Police Station Tiruvallur District.
5.The Public Prosecutor High Court, Madras.
S.S.SUNDAR, J., AND SUNDER MOHAN, J., AP H.C.P.No.1396/2023 23.11.2023