Vimala v. The Principal Secretary To The Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.(MD)No.1144 of 2023 Vimala : Petitioner Vs.
1.The Principal Secretary to the Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.
2.The Commissioner of Police, Trichy Commissioner Office, Tiruchirappalli City.
3.The Superintendent of Prison, Central Prison, Tirchirappalli.
: Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the records pertaining to the impugned detention order passed by the 2nd respondent made in his
proceedings in C.No.70/Detention/C.P.O/T.C./2023 dated 11.07.2023 in detaining the detenu under Section 2(f) of the Tamil Nadu Act 14 of 1982 as a Goonda and quash the same and direct the respondents to produce the detenu namely Prem @ Prem Kannan, S/o.Ramu, Male, aged about 22 years, who is detained in Central Prison, Tiruchirappalli before this Hon'ble Court and set him at liberty.
For Petitioner : Mr.K.M.Karunakaran for Ms.A.Banumathy For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.] When the captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of brevity] was listed in the Admission Board on 13.09.2023, a Hon'ble Coordinate Division Bench made the following order in the Admission Board:
2. It has now become necessary to set out a thumbnail sketch of factual matrix and we do so in the paragraphs infra.
3. Today, the captioned matter is in the Final Hearing Board. 4.
Mr.K.M.Karunakaran, learned counsel representing Ms.A.Banumathy, learned counsel on record for petitioner and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all respondents are before us.
5. Captioned HCP has been filed by the mother of the detenu assailing a 'preventive detention order dated 11.07.2023 bearing reference C.No. 70/Detention/C.P.O/T.C/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience] made by the second respondent Commissioner of Police, who shall hereinafter be referred to as 'detaining authority' for the sake of convenience and clarity. To be noted, sponsoring authority has not been arrayed as a respondent but we find that 'Station House Officer of Airport Police Station, Trichy' is the sponsoring authority [hereinafter 'Sponsoring Authority' for the sake of convenience and clarity]
6. 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] branding the detenu as a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
7. There are two adverse cases and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.718 of 2023 on the file of Airport Police Station registered under Sections 392 r/w 397 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. Considering the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix of the case.
8. Learned counsel on record for petitioner predicated his campaign against the impugned preventive detention order on one point and that point is not providing translated copy of documents (relied on by the detaining authority) in the lone language which the detenu is conversant with. Elaborating on this submission, learned counsel drew our attention to page Nos.121 and 122 of the grounds booklet served on the detenu which is a Government Order bearing reference G.O.(D)No.89 Home, Prohibition and Excise (XVI) Department, dated 12.04.2023. Tamil translation of the Government Order has not been furnished to the detenu is learned HCP petitioner counsel's say.
9. We had the benefit of perusing the aforementioned grounds booklet. We also noticed that the said G.O.(D)No.89 forms part of the ground on which the impugned preventive detention order has been made. As this turns on obtaining scenario which comes to light from the grounds booklet which is before us, learned State Additional Public Prosecutor does not have much of a say.
10. Be that as it may, we are informed that the literacy level of the detenu is X Standard. We are also informed that the detenu is conversant only with Tamil. We remind ourselves of Powanammal principle i.e., ratio in Powanammal Vs. State of Tamil Nadu {(1999) 2 SCC 413}, wherein Hon'ble Supreme Court addressed itself to this translation point in a similar fact situation. The question which the Hon'ble Supreme Court addressed itself to is captured in paragraph 6 and the manner in which a Hon'ble Bench of the Supreme Court answered this question is captured in paragraph 16. Paragraphs 6 and 16 {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 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.'
11. We find that the aforementioned Powanammal's case applies in all force to the case on hand as we find that the Government Order which has been relied on as part of the grounds of detention qua impugned preventive detention order is a crucial document and not furnishing the same in Tamil the lone language known to the detenu has impaired his constitutional right to make an effective representation qua 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. We therefore have no hesitation in saying that the impugned preventive detention order deserves to be dislodged in this habeas drill on hand. To be noted, this Bench has respectfully followed Powanammal principle in Meena's case
Court] being 2023:MHC:4860 [H.C.P.(MD)No.1077 of 2023, dated 30.10.2023].
12. Before concluding by writing the operative paragraph of this order, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
13. Ergo, the sequitur is captioned HCP is allowed. Impugned preventive detention order dated 11.07.2023 bearing reference C.No. 70/Detention/C.P.O./T.C/2023 made by the second respondent is set aside and the detenu Thiru.Prem @ Prem Kannan, male, aged 22 years, son of Thiru.Ramu 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.] & [R.S.V.,J.] 07.11.2023 Index : Yes vsm P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Tiruchirappalli.
To 1.The Principal Secretary to the Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.
2.The Commissioner of Police, Trichy Commissioner Office, Tiruchirappalli City.
3.The Superintendent of Prison, Central Prison, Tirchirappalli.
4.Joint Secretary to Government, Public (Law and Order) Department, Secretariat, Chennai.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
M.SUNDAR, J.
and R.SAKTHIVEL, J.
vsm H.C.P.(MD)No.1144 of 2023 07.11.2023