Jothi v. Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 28.11.2023

CORAM

THE HONOURABLE MR . JUSTICE S.S.SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1967/2023 Tmt.Jothi ..

Petitioner

Versus

1.The State of Tamil Nadu rep.by its Secretary to Government Home, Prohibition and Excise [XVI] Department Fort St Goerge, Secretariat, Chennai 600 009.

2.The District Collector & District Magistrate Thirupathur District, Thirupathur.

3.The Superintendent of Police Thirupathur, Thirupathur District.

4.The Superintendent of Prison Central Prison, Vellore, Vellore District.

4.The Inspector of Police Jolarpet Police Station Thirupathur 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 dated 08.09.2023 in his office ref.C3/D.O.No.22/2023 against the petitioner's son by name Thiru David @ Ezhilarasan, son of Janakiraman, aged about 21 years, now confined at Central Prison, Vellore, Vellore District and set aside the same and direct the respondents to produce the above said detenu before this Court and set him at liberty.

For Petitioner :

Mr.E.Kannadasan For Respondents :

Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.Aravind.C

O R D E R

[Order of the Court was made by S.S.SUNDAR, J.] (1)The petitioner, mother of the detenu, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 08.09.2023 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 points have been raised by the petitioner, the learned counsel for the petitioner submitted that the documents pertaining to the

Arrest Memo found in pages No.15 to 18 are illegible and could not be read. Hence, it is stated that the detention order is liable to be quashed on the above ground and the order of detention is vitiated on the ground of non furnishing of legible copies of vital document, depriving the detenu of his valuable right to make effective representation against the detention order to the authorities concerned.

(4)This Court, upon examination of the records, is unable to discard the contention of the learned counsel for the petitioner. It is seen from pages No.15 to 18 of the Booklet furnished to the detenu, the documents pertaining to the Arrest Memo in the ground case are not clear and the said documents are illegible. The furnishing of illegible copies of the documents would deprive the detenu of his valuable right in making effective representation to the authorities against the order of detention. (5)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 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. Whereas the non-supply of a copy of the document relied upon in 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.''

(6)In view of the ratio laid down by the Hon'ble Supreme Court and in view of the aforesaid facts, this Court is of the view that the detention order is liable to be quashed.

(7)Accordingly, the detention order passed by the 2nd respondent dated 08.09.2023 in C3/D.O.No.22/2023 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] [SMJ] 28.11.2023 AP Internet : Yes

To 1.The Secretary to Government State of Tamil Nadu Home, Prohibition and Excise [XVI] Department Fort St Goerge, Secretariat, Chennai 600 009.

2.The District Collector & District Magistrate Thirupathur District, Thirupathur.

3.The Superintendent of Police Thirupathur, Thirupathur District.

4.The Superintendent of Prison Central Prison, Vellore, Vellore District.

5.The Inspector of Police Jolarpet Police Station Thirupathur District.

6.The Public Prosecutor High Court, Madras.

S.S.SUNDAR, J., AND SUNDER MOHAN, J., AP H.C.P.No.1967/2023 28.11.2023