Susila v. The State Rep By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.03.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Susila Wife of Ramar .. Petitioner / Mother of the detenu Vs.
1.
The State Represented by The Secretary to the Government Home, Prohibition and Excise Department Government of Tamil Nadu Secretariat Fort. St.George Chennai - 600 009 2.
The District Collector cum District Magistrate The District Collectorate Kallakurichi District 3.
The Superintendent of Police The Superintendent of Police Office Kallakurichi District Page Nos.1/11
4.
The Superintendent of Prison Central Prison, Vellore 5.
Inspector of Police Chinna Salem Police Station Vellore District ..
Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records of the 2nd respondent herein in connection with order made in proceedings No. D.O.No.C2/52/2022 dated 15.09.2022 passed against the petitioner's son Lakshathipathi, 34 years, son of Ramar, who is now confined at Central Prison, Vellore and quash the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner :
Mr.S.Thirugnanam For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor assisted by Mr.M.Sylvester John, Advocate
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by the mother of detenu assailing a 'preventive detention order dated 15.09.2022 bearing reference D.O.No.C2/52/2022' [hereinafter Page Nos.2/11
'impugned detention order' for the sake of convenience and brevity]. To be noted, fifth respondent is the sponsoring authority and second respondent is the detaining authority as the impugned detention order has been made by second respondent.
2. Impugned detention order has been made under '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 No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] on the premise that the detenu is a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3. There is no adverse case. This solitary case which is the sole substratum of the impugned detention order is Crime No.236 of 2022 on the file of Chinnasalem Police Station for an alleged offence under Sections 147, 148, 294(b), 323, 324, 332, 336, 353, 435, 436, 379 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of Page Nos.3/11
convenience and clarity] read with Sections 3, 4 and 5 of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.S.Thirugnanam, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, assisted by Mr.M.Sylvester John, learned counsel for all respondents are before us. 5.Notwithstanding very many averments and grounds raised in the support affidavit, in the hearing Mr.S.Thirugnanam, learned counsel for petitioner predicated his campaign against the impugned detention order on three points and they are as follows:
a) As regards the subjective satisfaction of detaining authority qua imminent possibility of detenu being enlarged on bail qua paragraph 5 of the impugned detention order, the detaining authority has said that the Sponsoring Authority received reliable information that his relatives are taking steps to file bail application but there is no statement from the relatives. Page Nos.4/11
To put it differently, there is nothing to buttress what has been described as 'reliable information';
b) As regards the same subjective satisfaction, Sponsoring Authority has relied on an order dated 23.03.2023 made in C.M.P.No.2447 of 2020 on the file of the Sessions Court, Villupuram vide Crime No.144 of 2020 for alleged offences under Sections 147, 148, 294(b), 448, 323, 324, 506(ii) IPC read with Section 3 of Tamil Nadu Property (Prevention of Damage and Loss ) Act of Ulundurpet Police Station but this really is not a similar case as the ground case turns on offences under Sections 379, 436, 435, 353, 336 and 332 of IPC also;
c) The aforementioned order of the Sessions Court has been given in the grounds booklet as an annexure. It is at page 82, it is in English but a Tamil translation has not been provided. Learned counsel submitted that detenu has difficulty in understanding legal language in which the bail order is couched and therefore it has impaired his constitutional safeguard to make an effective representation against the impugned preventive detention order; Page Nos.5/11
6. In response to the aforesaid three points, learned Prosecutor submitted to the contrary and submissions of learned Prosecutor are as follows:
a) As regards reliable information, learned Prosecutor submitted that it is reliable information received by the Sponsoring Authority;
b) As regards the second point, it was submitted that the two cases are largely similar;
c) As regards the third point, learned Prosecutor really did not have much of a say as the obtaining position is no Tamil translation of the bail order has been provided in the grounds booklet.
7. We carefully considered the three points that have been urged / exhorted before us. We also considered the rival submissions. The discussion and dispositive reasoning are as follows: a) As regards the first point of bald averment that 'reliable information' was received by Sponsoring Authority is not good enough qua subjective satisfaction qua imminent possibility of Page Nos.6/11
detenu being enlarged on bail. Therefore, this point enures to the benefit of the petitioner;
b) As regards the second point, we find that two cases are dissimilar as the provisions of IPC referred to by learned counsel for petitioner are not there in the bail order which has been treated as a similar case and this by itself makes the two cases vastly different. This means that subjective satisfaction qua imminent possibility of detenu being enlarged on bail is impaired. More importantly, a careful perusal of the bail order brings to light that the similar case of Thirupathy and Pasupathi in the Villupuram Sessions Court is vastly different as that was a case where the injured were admitted in the hospital and discharged. This leaves us with the conclusion that comparison of these two cases is a case of comparison of Apples and Oranges or Chalk and Cheese. The sequitur is, second point also enures to the benefit of the petitioner.
c) As regards the third point, we respectfully remind ourselves of Pownammal case law [Pownammal Vs. State of Page Nos.7/11
Tamil Nadu reported in (1999) 2 SCC 413] wherein Hon'ble Supreme Court addressed itself to the question of furnishing the detenu with the copies in a language which the detenu is conversant with and answered the same. We are informed that that the detenu is a Diploma holder and does not understand legal language. The question which the Hon'ble Supreme Court addressed itself to is captured in paragraph 6 and the answer is set out in paragraph 16. Paragraphs 6 and 16 of Pownammal case law {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. '
Page Nos.8/11
Pownammal case law principle or ratio applies in all fours to the case on hand. Therefore, the third point also enures to the benefit of the petitioner.
8. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 15.09.2022 bearing reference D.O.No.C2/52/2022 made by the second respondent is set aside and the detenu Thiru.Lakshathipathi, aged 34 years, son of Thiru. Ramar, 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.) (M.N.K.,J.) 29.03.2023 Index : Yes Speaking gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Vellore.
Page Nos.9/11
To 1.
The Secretary to the Government Home, Prohibition and Excise Department Government of Tamil Nadu Secretariat Fort. St.George Chennai - 600 009 2.
The District Collector cum District Magistrate The District Collectorate Kallakurichi District 3.
The Superintendent of Police The Superintendent of Police Office Kallakurichi District 4.
The Superintendent of Prison Central Prison, Vellore 5.
Inspector of Police Chinna Salem Police Station Vellore District 6.
The Public Prosecutor Madras High Court Page Nos.10/11
M.SUNDAR, J., and M.NIRMAL KUMAR, J., gpa 29.03.2023 Page Nos.11/11