Thavamani v. State Of Tamilnadu Rep.By
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 Thavamani W/o.Balraj .. Petitioner Vs 1.
State of Tamil Nadu Rep. by its Additional Chief Secretary to Government Home, Prohibition & Excise Department Secretariat, Chennai-600 009.
2.
The District Collector & District Magistrate Perambalur District Perambalur.
3.
The Superintendent of Prison Central Prison Thiruchirapalli.
4.
The Superintendent of Police Perambalur District.
5.
The Inspector of Police Kunnam Police Station Perambalur District.
... Respondents Page Nos.1/9
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 pertaining to the detention order passed by the 2nd respondent in Cr.MP.No.05/2023 dated 28.03.2023 and set aside the same and direct the respondents to produce the petitioner's husband namely Balraj S/o. Mookkan, Aged about 49 years, who is now confined in Central Prison, Thiruchirapalli, before this Hon'ble Court and set him at liberty. For Petitioner :
Mr.M.Vijayaragavan For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor Assisted by Mr.Aravind .C
ORDER
[Order of the Court was made by M.SUNDAR, J.,] When the captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] was listed in the Admission Board on 31.07.2023, this Court made the following order:
'H.C.P.No.1409 of 2023 M.SUNDAR, J.
and R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR, J.,) Captioned Habeas Corpus Petition has been filed in this Page Nos.2/9
Court on 21.07.2023 inter alia assailing a 'detention order dated 28.03.2023 bearing reference Cr.M.P.No.05/2023' [hereinafter 'impugned preventive detention order' for the sake of convenience, clarity and brevity] made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience]. To be noted, fifth respondent is the Sponsoring Authority.
2. To be noted, wife of the detenu is the petitioner.
3. Mr.M.Vijayaragavan, learned counsel on record for habeas corpus petitioner is before us. Learned counsel for petitioner submits that ground case qua the detenu is for alleged offences under Sections 448 and 376(2)(l) of 'Indian Penal Code, 1860 (Act 45 of 1860)' [hereinafter 'IPC' for the sake of brevity] in Crime No.74 of 2023 on the file of Kunnam Police Station.
4. The aforementioned impugned preventive detention order has been made on the premise that the detenu is a 'Sexual Offender' under Section 2(ggg) of 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drugoffenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, 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 impugned preventive detention order has been assailed inter alia on the ground that some of the documents in the grounds booklet furnished to the detenu are illegible which prevented the detenu from making an effective representation. Page Nos.3/9
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
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.'
2. The aforementioned Admission Board order captures all essentials that are imperative for appreciating this order and therefore we are not setting out the same again in this final order. Suffice to say that aforementioned Admission Board order shall now be read as an integral part and parcel of this final order. Be that as it may, we shall continue to use the short forms, short references and abbreviations used in the Admission Board order in this order also for the sake of convenience and clarity.
3. Mr.M.Vijayaragavan, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
4. As would be evident from paragraph 5 of the Admission Board order, at the time of admission, learned counsel posited his challenge to the Page Nos.4/9
impugned preventive detention order on the point that some of the documents in the grounds booklet furnished to the detenu are illegible which prevented the detenu from making an effective representation but in the final hearing today, Mr.M.Vijayaragavan, learned counsel on record for petitioner changed his line of attack and predicated his campaign against the impugned preventive detention order on one point and that point is not providing translated copy of a document (relied on by the detaining authority) in the lone language which the detenu is conversant with. Elaborating on this submission, learned counsel drew our attention to page No.51 of the grounds booklet served on the detenu which is Accident Register. Tamil translation of the aforementioned document has not been furnished to the detenu is learned HCP petitioner counsel's say.
5. We had the benefit of perusing the aforementioned grounds booklet. We also noticed that the Accident Register forms part of the grounds on which the impugned preventive detention order has been made. As this turns on obtaining scenario which comes to light from the grounds booklet which is before us, learned State Additional Public Prosecutor does Page Nos.5/9
not have much of a say.
6. Be that as it may, we are informed that the literacy level of the detenu is low. We are also informed that the detenu is conversant only with Tamil. We remind ourselves of Powanammal principle i.e., ratio in Powanammal Vs. State of Tamil Nadu {(1999) 2 SCC 413}, wherein Hon'ble Supreme Court addressed itself to this translation point in a similar fact situation. The question which the Hon'ble Supreme Court addressed itself to 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. 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 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 non-supply 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. '
7. We find that the aforementioned Powanammal case applies in all Page Nos.6/9
force to the case on hand as we find that the Accident Register which has been relied on as part of the grounds of detention qua impugned preventive detention order is a crucial document and not furnishing the same in Tamil, the lone language known to the detenu has impaired his constitutional right to make an effective representation of the impugned preventive detention order. To be noted, this constitutional right is ingrained in the form of a safeguard in clause (5) of Article 22 of Constitution of India. We therefore have no hesitation in saying that the impugned preventive detention order deserves to be dislodged in this habeas drill on hand.
8. Before concluding by writing the operative paragraph of this order, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
9. Ergo, the sequitur is captioned HCP is allowed. Impugned preventive detention order dated 28.03.2023 bearing reference Cr.M.P.No.05/2023 made by the second respondent is set aside and the detenu Thiru.Balraj, male, aged 49 years, son of Thiru.Mookkan, is directed Page Nos.7/9
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 Speaking mk P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Thiruchirapalli.
To 1.
State of Tamil Nadu Rep. by its Additional Chief Secretary to Government Home, Prohibition & Excise Department Secretariat, Chennai-600 009.
2.
The District Collector & District Magistrate Perambalur District Perambalur.
3.
The Superintendent of Prison Central Prison Thiruchirapalli.
4.
The Superintendent of Police Perambalur District.
5.
The Inspector of Police Kunnam Police Station Perambalur District.
6.
The Public Prosecutor Madras High Court Chennai.
M.SUNDAR, J., and Page Nos.8/9
R.SAKTHIVEL, J., mk 27.09.2023 Page Nos.9/9