Madras High Court
Ganesh @ Lingesan vs State Of Tamil Nadu on 22 June, 2012
Author: K.N.Basha
Bench: K.N.Basha, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.06.2012
CORAM:
THE HONOURABLE MR.JUSTICE K.N.BASHA
and
THE HONOURABLE MR.JUSTICE P.DEVADASS
Habeas Corpus Petition No.70 of 2012
Ganesh @ Lingesan ... Petitioner
vs.
1. State of Tamil Nadu,
Rep. By the Secretary, Home,
Prohibition and Excise Department,
Fort St. George,
Chennai 600 009.
2. The Commissioner of Police,
Egmore, Chennai 600 008. ... Respondents
* * *
Prayer : Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Habeas Corpus calling for the records relating to the detention order in Memo No.601/BDFGISSV/2011, dated 25.11.2011 passed by the second respondent under the Tamil Nadu Act 14 of 1982 and quash the same and direct the respondent to produce the petitioner, Ganesh @ Lingesan, S/o.Subramani now confined in Central Prison, Puzhal, before this Hon'ble Court and set the petitioner, Ganesh @ Lingesan, S/o.Subramani, at liberty.
* * *
For Petitioner .. Mr.D.Gopikrishnan,
for M/s.T.I.Ramanathan
For Respondents .. Mr.P.Govindarajan, Addl. Public Prosecutor
ORDER
(Order of the Court was made by P.DEVADASS, J.) The petitioner, who has been detained under Act 14 of 1982 brandishing him a Goonda, challenges the detention order dated 25.11.2011.
2. Noticing the adverse criminal statistics submitted by the sponsoring authority, the detaining authority coming to the subjective satisfaction that his remaining at large will be prejudicial to the maintenance of public order clamped the order of detention on the petitioner.
3. The detention order has been challenged on various grounds. Today, an additional ground has been raised assailing the detention order. Since it is a legal ground, we permit him to raise it.
4. According to Mr.D.Gopikrishnan, learned counsel for the petitioner, in the Booklet of copies of documents supplied to the detenu, in the Arrest Memo, it is mentioned that his arrest in the ground case has been intimated to his sister, Usha, by a telegram. However, a copy of the telegram has not been furnished to him. In the circumstances, the learned counsel would submit that actually there was no such intimation at all. He would add that giving of intimation of his arrest to his relatives and friends is very important as it would enable him to make representation as against the order of detention passed against him. Inasmuch as the telegram stated has not been furnished, he was prevented from making representation, thus, the order of detention is vitiated.
5. In this respect, the learned counsel for the petitioner would cite AKILANDESWARI V. State, rep. by Secretary to Government, Home, Prohibition and Excise Department, Chennai 600 009 and Another (2008 (3) MLJ (Crl) 744).
6. On the other hand, Mr.P.Govindarajan, learned Additional Public Prosecutor would submit that the detenu knew his arrest and no prejudice has been caused to him by not furnishing the said telegram.
7. We have given our anxious consideration to the arguments of both sides and perused the materials placed before us.
8. The petitioner has been detained under Act 14 of 1982. He has been furnished with a Booklet. It contains copies of documents. In this Booklet, at page 180, in the Arrest Memo, it is stated that his arrest in Crime No.881 of 2011 under Section 379 IPC registered by P-6, Kodungaiyur Police has been duly informed to his sister, Usha, by way of a telegram. Admittedly, a copy of the said telegram has not been furnished to him. In the circumstances, as rightly submitted by the learned counsel for the petitioner, it could be concluded that no intimation, as claimed by the police, has been given to the detenu.
9. In a similar situation, a Division Bench of this Court in AKILANDESWARI (supra) held as under :
5. Though the learned Additional Public Prosecutor has made an attempt to justify by stating that the family members were intimated through telegrams, he has not placed any material to satisfy this Court as to whether any telegram was sent and the same was acknowledged either by the family members or relatives of the detenu. A right of intimation to the relatives or family members of the detenu encompasses itself the fundamental right guaranteed under Article 22(5) of the Constitution of India to make a representation to the detaining authority or the State Government, as the case may be. In the event the arrest is not intimated, the detenu would not be in a position to make any such representation and in that context, failure on the part of the detaining authority would amount to deprivation of the right of the detenu to make an effective representation guaranteed under Article 22(5) of the Constitution of India. On the facts of this case, a specific averment has been made that the intimation was not given. We also find that the said averment has not been controverted in the counter affidavit. Though the learned Additional Public Prosecutor submitted that the family members of the detenu were informed of the arrest through telegram, there are no materials placed before us to substantiate the said contention. Further, the copy of the telegram has also not been furnished to the detenu. In the absence of the same, we are unable to accept the contention of the learned Additional Public Prosecutor that the family members or the relatives of the detenu were informed of the arrest. Under these circumstances, the detention order is vitiated.
10. No man shall be deprived of his life and liberty except by procedure established by law has been guaranteed in Article 21 of the Constitution of India. His right to be informed of the arrest is his basic human right. Curtailment of his personal freedom in pursuance of a preventive detention law though has the constitutional sanction (see Article 22 (3)(b) of the Constitution of India), it is conditioned by many constraints, one of which is a chance for him to make representation as against his detention. (See Article 22 (5) of the Constitution of India). If his arrest is not informed to his dear and near ones, who could make representation as against the detention order on his behalf, he cannot exercise the right given to him under Article 22(5) of the Constitution of India. In this constitutional perspective, the argument of the respondent that by non supply of a copy of the telegram informing his arrest no prejudice is caused to the detenu is too big a pill to gulp.
11. In the facts and circumstances, as the detenu has been prevented from making effective representation, there is infraction of his right guaranteed under Article 22(5) of the Constitution of India, the order of detention is vitiated on that ground itself and it is liable to be set aside.
12. In the result, the writ petition is allowed. The detention order in Memo No.601/BDFGISSV/2011, dated 25.11.2011 passed by the second respondent is set aside and the writ petitioner/detenu, Ganesh @ Lingesan, S/o.Subramani, is directed to be released forthwith, unless he is required in connection with any other case or proceedings.
(K.N.B.,J.) (P.D.S., J.)
22.06.2012
Index : Yes
Internet : Yes
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To
1. The Secretary,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai 600 009.
2. The Commissioner of Police,
Egmore, Chennai 600 008.
3. The Public Prosecutor,
Madras High Court,
Madras.
K.N.BASHA, J.
AND
P.DEVADASS, J.
gg
ORDER IN
H.C.P.No.70 of 2012
22.06.2012