Esakkiammal v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.04.2024

CORAM:

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA and THE HONOURABLE MR.JUSTICE K.RAJASEKAR Esakkiammal ... Petitioner -vs1.State of Tamil Nadu rep.by the Additional Chief Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-600 009.

2.The District Collector and District Magistrate Tirunelveli District, Tirunelveli.

3.The Superintendent of Prison Central Prison.

Palayamkottai, Tirunelveli.

... 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 connected with the detention

order passed in M.H.S.Confdl.No.110/2023, dated 15.09.2023 on the file of the second respondent herein and quash the same and direct the respondents to produce the detenu or body of the detenu namely the petitioner's son i.d., Mayandi alias Madhan, aged about 19 years, S/o.Sudalaimuthu, now detained at the Central Prison, Palayamkottai before this Court and set him at liberty forthwith.

For Petitioner :

Mr.N.Pragalathan 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 mother of the detenu viz., Mayandi alias Madhan, son of Sudalaimuthu, aged about 19 years. The detenu has been detained by the second respondent by his order in M.H.S.Confdl.No.110/2023, dated 15.09.2023, holding him to be a "Goonda", as contemplated under Section 2(f) 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 points have been raised by the learned counsel for the petitioner, it is stated that the detention order is liable to be quashed on the ground of non-furnishing of legible copy of the remand order available at Page No.161 of Volume-I and the document available at Page Nos.35 to 37 of VolumeII of the booklet. According to the learned counsel for the petitioner, though the translated copy of the remand order dated 29.08.2023 in the vernacular language was furnished at Page No.165 of Volume-I of the booklet, the English copy of the said remand order available at Page No.161 is illegible, thereby the petitioner is unable to understand whether the translated copy of the remand order in the vernacular language available at Page No.165 is the correct translation of the remand order available at page No.161 of the booklet. Further, the document available at Page Nos.35 to 37 of Volume-II of the booklet is also illegible. Hence, it is submitted that the detenu was deprived of making effective representation.

4. On a perusal of the Booklet, it is seen that the Detaining Authority has furnished translated copy of the remand order dated 29.08.2023 in the vernacular language at Page No.165 of Volume-I of the booklet. However, the remand report in English available at Page No.161 is illegible. Therefore, it cannot be understand that the translation copy of the remand order in the vernacular language available at Page No.165 is the correct translation of the remand order available at Page No.161 of Volume-I of the booklet. Furthermore, the document available at Page Nos.35 to 37 of Volume-II of the booklet is also not legible. This furnishing of illegible copy of the documents would deprive the detenu of 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 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: ''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.

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. 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 documents relied on by the Detaining Authority at Page No.161 of Volume-I and at Page Nos.35 to 37 of Volume-II of the booklet, 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 M.H.S.Confdl.No.110/2023, dated 15.09.2023, passed by the second respondent is set aside. The detenu, viz., Mayandi alias Madhan, son of Sudalaimuthu, aged about 19 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.] 23.04.2024 NCC : Yes / No Index : Yes / No Internet : Yes / No am

To:

1.The Additional Chief Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-600 009.

2.The District Collector and District Magistrate Tirunelveli District, Tirunelveli.

3.The Superintendent of Prison Central Prison.

Palayamkottai, Tirunelveli.

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

A.D.JAGADISH CHANDIRA, J.

AND K.RAJASEKAR, J.

am 23.04.2024