Bhuvaneswari v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.07.2024

CORAM:

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA and THE HONOURABLE MR.JUSTICE K.RAJASEKAR Bhuvaneswari ... Petitioner -vs1.The Secretary to Government Home, Prohibition & Excise Department Secretariat, Fort St.George Chennai-600 009 2.The Commissioner of Police Trichy City Trichy District 3.The Inspector of Police AVS Cantonment Police Station Trichy City 4.The Superintendent of Prison Central Prison Trichy ... Respondents

PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the entire records in detention order in C.No. 112/Detention/C.P.O/T.C/2023, dated 26.12.2023, on the file of the second respondent and quash the same and direct the respondents herein to produce the body of the petitioner's husband, namely, Sridhar, son of Kamaraj, aged about 35 years, now confined in Central Prison, Tiruchirappalli, before this Court and set him at liberty forthwith.

For Petitioner :

Mr.T.Lenin Kumar For Respondents :

Mr.A.Thiruvadi Kumar Additional Public Prosecutor

O R D E R

[Order of the Court was made by A.D.JAGADISH CHANDIRA, J.] The petitioner is the wife of the detenu viz., Sridhar, son of Kamaraj, aged about 35 years. The detenu has been detained by the second respondent by his order in C.No.112/Detention/C.P.O/T.C/2023, dated 26.12.2023, holding him to be an "Immoral Traffic Offender", as contemplated under Section 2(g) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this habeas corpus petition.

2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.

3. Though several grounds have been raised in the habeas corpus petition, learned counsel for the petitioner submitted that though the petitioner sought for legible copy of the document available at Page Nos.72 & 73 of the booklet, the same has not been furnished to the detenu. It is, therefore, stated that the detenu is deprived of his valuable right to make an effective representation.

4. On a perusal of the Booklet, this Court finds that the document available at Page Nos.72 & 73 are illegible and the petitioner has also sought for legible copy of the said document. Despite the representation made in this regard, the legible copy of the said document has not been furnished to the detenu. Therefore, we are of the view that the non-furnishing of legible copy of the document available at Page Nos.72 & 73 of the document would deprive the detenu of his valuable right to make an effective representation. It is in the said circumstances, this Court finds that the impugned detention order passed by the Detaining Authority is vitiated.

5. In this context, it is useful to refer to the Judgment of the Honourable Supreme Court in the case of Powanammal vs. State of Tamil Nadu, reported in (1999) 2 SCC 413, wherein the Apex Court, after discussing the safeguards embodied in Article 22(5) of the Constitution of India, observed that the detenu should be afforded an opportunity of making a 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. The relevant portion of the said decision is extracted hereunder: ''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. ...

...

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 non-supply 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. ...

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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. We find that the above cited Powanammal's case applies in all force to the case on hand as we find that non-furnishing of legible copy of the document available at Page Nos.72 & 73 of the booklet, to the detenu, has impaired his constitutional right to make an effective representation against

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 the Constitution of India. We, therefore, have no hesitation in quashing the impugned detention order.

7. In the result, the Habeas Corpus Petition is allowed and the order of detention in C.No.112/Detention/C.P.O/T.C/2023, dated 26.12.2023, passed by the second respondent is set aside. The detenu, viz., Sridhar, son of Kamaraj, aged about 35 years, is directed to be released forthwith unless his detention is required in connection with any other case. [A.D.J.C., J.] [K.R.S., J.] 18.07.2024 NCC :

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To:

1.The Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Fort St.George, Chennai-600 009.

2.The Commissioner of Police, Trichy City, Trichy District.

3.The Inspector of Police, AVS Cantonment Police Station, Trichy City.

4.The Superintendent of Prison, Central Prison, Trichy.

5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

A.D.JAGADISH CHANDIRA, J.

AND K.RAJASEKAR, J.

krk 18.07.2024