Muthuramu @ Eli v. The Additioanl Chief Secretary
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.07.2019
CORAM:
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN and THE HONOURABLE MR.JUSTICE B.PUGALENDHI Muthuramu @ Eli ... Petitioner Vs.
1. The Additional Chief Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2. The District Collector and District Magistrate, Sivagangai District, Sivagangai.
3. The Superintendent of Prison, Madurai Central Prison, Madurai District.
... Respondents Prayer: Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Habeas Corpus, to call for the entire records, connected with the detention order of the respondent No.2 in Cr.M.P.No.01/Goonda/2019, dated 05.01.2019 and quash the same and direct the respondents to produce the body or person of the detenu by name Muthuramu @ Eli son of Annadurai aged about 25 years, now detained at Madurai Central Prison before this Court and set him at liberty forthwith.
For Petitioner : Mr.R.Alagumani For Respondents : Mr.K.Dinesh Babu, Additional Public Prosecutor
O R D E R
(Order of the Court was made by M.SATHYANARAYANAN, J.) The detenu himself is the petitioner herein and challenging the impugned order of detention dated 05.01.2019 passed by the second respondent, branding him as a Goonda under the provisions of Section 3[1] of the Tamil Nadu Prevention of Dangerous 1/7
Activities of Boot leggers, 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 14/1982), he has filed the present habeas corpus petition.
2. A perusal of the Grounds of Detention dated 05.01.2019, passed by the second respondent herein, would disclose that the detenu, viz., Muthuramu @ Eli came to the adverse notice in the following three cases:- Sl. No. Name of the Police Station and Crime No.
Sections of Law 341, 294(b), 323, 427, 506(ii) IPC and 3(1)(x) SC/ST (POA) Act, 1989 1.
Manamadurai Police Station Cr.No.548 of 2015, dated 29.09.2015 2.
Manamadurai Police Station Cr.No.541 of 2016, dated 28.10.2016 294(b), 323 and 506 (ii) IPC 3.
Manamadurai Police Station Cr.No.191 of 2018, dated 14.07.2018 294(b), 323, 355 and 506(i) IPC 3.It is further stated in the grounds of detention that based on the complaint given by the sister of one Alex with regard to the incident, which took place at 7.00 hours on 08.12.2018, a case in Cr.No.303 of 2018 (ground case) has been registered for the commission of offence under Sections 341, 294(b), 307, 506(ii) IPC and Section 3(1)(r), 3(1), 3(2)(va) SC/ST (POA) Amendment Act, 2015 by Manamadurai Police Station on 09.12.2018. The detenu was arrested on 09.12.2018 and was produced before the Special Court for Exclusively Trial of cases under SC/ST (POA) Act on the same day and was remanded to judicial custody upto 24.12.2018 and his remand period was extended till 07.01.2019. The detenu filed a bail application in Cr.M.P.No.
4574 of 2018 and is pending on the file of the Special Court, Sivagangai. The Detaining Authority, on a perusal and consideration of the materials, has derived the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of the public peace and order and as such, branded him as a Goonda and detained him under the provisions of the Tamil Nadu Act 14 of 1982, by clamping the impugned order of detention and challenging the legality of the same, the present Habeas Corpus Petition is filed.
4. The learned Counsel for the petitioner has drawn the attention of this Court to the typed set of documents and would submit that the detenu has submitted an identical representation dated 22.01.2019 to the second respondent / the detaining 2/7
authority, the Chairman of the Advisory Board as well as the first respondent for revocation of the order of detention.
5. It is the submission of the learned Counsel for the petitioner that though the said representation has been considered and rejected on 05.02.2019 by the detaining authority, rest of the two representations submitted to the Advisory Board as well as the Government, have not been forwarded and on account of the nonforwarding of the representations, the detenu has lost his opportunity for consideration of his representations for revocation of the order of detention and the right guaranteed under Article 22(5) of the Constitution of India is also deprived of and challenging the impugned order of detention, the petitioner has come forward to file the present Habeas Corpus Petition. 6.Per contra, learned Additional Public Prosecutor appearing for the State would submit that since the representation dated 22.01.
2019 submitted to the detaining authority, has been considered and rejected within a period of twelve days, it is not necessary to forward the representations / the contents, which are identical, to the Government as well as to the Advisory Board and the attention of this Court was also invited to the letter of the first respondent in No.26950/H.P & E (XVI)/2018, dated 14.11.2018, wherein it has been stated that if the representation received form the detenue within a period of twelve days has been considered by the detaining authority, the representation addressed to the Government as well as the Advisory board need not be forwarded.
7.In sum and substance, it is the submission of the learned Additional Public Prosecutor appearing for the State that since the detaining authority has already considered and rejected the representation without any loss of time, in the light of above cited letter dated 14.11.2018 of the first respondent, it is not necessary to forward the representation submitted to the Advisory Board and to the Government and therefore, prays for dismissal of this habeas corpus petition.
8. This Court has considered the rival submissions and also perused the entire materials placed before it.
9. In Agalya Bhai Vs. The State of Tamil Nadu, reported in 1997 (III) CTC 486 (DB), the order of detention came to be passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [COFEPOSA Act] and one of the grounds urged was that the failure of the Jail Superintendent to forward the detenu's representation to the Central Government, amounts to deprivation of the right of the 3/7
detenue to have his detention revoked and in the said decision, it is also held that since the grounds of detention themselves would indicate that the detenu can represent to the Central Government and keeping in view of the right involved, the Jail Superintendent ought to have exhibited more alert in transmitting the said representation and the Division Bench, having found that it was not done, quashed the impugned order of detention passed under COFEPOSA Act.
10.The Hon'ble Supreme Court in Kamleshkumar Ishwardas Patel Vs Union of India and Others, reported in [1995] 4 SCC 51, which also pertains to the order of detention passed under COFEPOSA Act, has held in paragraph Nos.30 and 31 that under Article 22(5) of the Constitution of India, the right of the person detained to make the representation against the order of detention comprehends the right to make such a representation to the Authority, which can grant such relief, ie., that authority which can revoke the order of the detention and set him at liberty and since the officer, who has made the order of detention is competent to revoke it, the person detained has the right to make a representation to the officer who made the order of detention. 11.
The Hon'ble Supreme Court in State of Punjab Vs Sukhpal Singh, reported in [1990] 1 SCC 35, which pertains to the order of detention passed under the National Security Act, 1980, in paragraph Nos.15, 16 and 19, has held that "the clear instructions in the grounds of detention that the detenue should address the representation to the State Government through the Superintendent of Jail, where he was detained should have been followed". 12.Keeping in mind the principles enunciated in the above cited judgments, this Court has scanned and analysed the materials placed on record.
13.It is not in dispute that the detenu, apart from submitting the representation dated 22.01.2019 to the second respondent / the detaining authority, has also submitted representations dated 22.01.2019 to the first respondent as well as to the Chairman, Advisory Board.
14.It is pertinent to extract the relevant portion of paragraph No.5 of the order of the detention dated 05.01.2019, which reads as follows:
"5. ... ... ... he has a right to make, representation in writing against the said detention order to the detaining authority, ie., District Collector and District Magistrate within 12 days from the date of detention order and if any such 4/7
representation is received by the detaining authority, the said representation will be duly considered by the detaining authority.
If the detenu whishes to make any written representation to the detaining authority, he should address it to "The District Collector and District Magistrate, Maruthupandiyar Nagar, Sivaganga" and forward it through the Superintendent, Central Prison, Madurai in which he is confined, as expeditiously as possible, he is also informed that he has a right to make the representation in writing against the detention order to the State Government and if he wishes to make any representation to the State Government, he should address it to the Additional Chief Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009 and forward it through the Superintendent, Central Prison, Madurai in which he is detained as expeditiously as possible.
It is further informed that he has a right to make representation to the Chairman, Advisory Board, No.32, Rajaji Road, Singaravelar Maligai ground floor (Back side entrance) Chennai, Collectorate Complex, Chennai -600 001, through the Superintendent, Central Prison, Madurai. Any representation that is made by him to the Advisory Board will be duly considered by the Government and will also be placed before the Advisory Board along with his case details for consideration under Section 10 of 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 14 of 1982)."
15.The primordial submission made by the learned Additional Public Prosecutor is that since the representation submitted by the detenu has been considered and rejected by the detaining authority within a period of twelve days, the forwarding of the representation to the Advisory Board as well as the State Government is only an empty formality for the reason that the contents of the representation are one and the same and the said Authorities may not also take a very different view from that of the detaining authority. In the considered opinion of this Court, such a submission lacks merit and substance, for the reason that paragraph No.5 of the grounds of detention also made it clear that apart from submitting a representation to the detaining authority within twelve days from the date of detention order, the detenu was also informed that he can make representations to the first respondent as well as to the Chairman, Advisory Board. 5/7
16.Admittedly, the detenu had submitted such representations to the Superintendent, Central Prison, in which the detenue is confined and it appears that the said representations addressed to the first respondent as well as to the Advisory Board, have not been forwarded.
17. In Agalya Bhai's case reported in 1997 (III) CTC 486 (DB), cited supra, in paragraph No.14, it is observed that "the failure of the Jail Superintendent to forward the detenu's representation to the Central Government amounts to deprivation of the right of the detenue to have his detention revoked." 18.The instructions issued by the first respondent vide letter dated 14.11.2018 are not in consonance with the settled position of law. In the considered opinion of this Court, the non-forwarding of the representations submitted by the detenu, through Superintendent of Prison, to the first respondent / Government as well as to the Chairman, Advisory Board, would definitely vitiate the order of detention. Therefore, the impugned order is liable to be quashed.
19.In the result, the Habeas Corpus Petition is allowed by setting aside the order of detention passed by the second respondent herein, namely, the District Collector and District Magistrate, Sivagangai District, Sivagangai in Cr.M.P.No.01/Goonda/2019, dated 05.01.2019. Consequently, the detenu, namely, Muthuramu @ Eli, aged about 25 years, who is now detained at Central Prison, Madurai is directed to be released forthwith unless his presence [or] custody [or] detention is required in connection with any other case/proceedings. Sd/- Assistant Registrar // True Copy // Sub Assistant Registrar(CS ) To 1.The Additional Chief Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Sivagangai District, Sivagangai.
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3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
+1 CC to M/s.R.ALAGUMANI, Advocate ( SR-77688[F] dated 25/07/2019 ) 24.07.2019 dsk/gk AE/(19.08.2019) 7P 6C 7/7