Madras High Court
Munees @ Murugan vs The Secretary To Government on 18 December, 2015
Bench: P.R.Shivakumar, S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.12.2015
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
and
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
H.C.P(MD)Nos.1281 of 2015, 1282, 1284 and 1285 of 2015
Munees @ Murugan .. Petitioner in
H.C.P.(MD).No.1281/2015
Markes @ Siva .. Petitioner in
H.C.P.(MD).No.1282/2015
Robert .. Petitioner in
H.C.P.(MD).No.1284/2015
Yasar Arabath .. Petitioner in
H.C.P.(MD).No.1285/2015
Vs.
1.The Secretary to Government,
Public (Law and Order-F) Department,
State of Tamil Nadu,
Secretariat,
Chennai ? 600 009.
2.The District Collector and District Magistrate,
Ramanathapuram,
Ramanathapuram District.
3.The Secretary to Government of India,
Ministry of Home Affairs,
Department of Internal Security,
North Block,
New Delhi ? 110001.
4.The Superintendent of Prison,
Madurai Central Prison,
Madurai. .. Respondents in all
the petitions
PRAYER in H.C.P.(MD).No.1281 of 2015:
Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Habeas Corpus, calling for the entire records relating to
the detention order passed in Cr.M.P.No.08/NSA/2015, dated 22.08.2015 on the
file of the second respondent, quash the same and consequently, direct the
respondents to produce the body or person of the detenu by name Munees @
Murugan S/o.Muniyandi, aged about 27 years, now detained in Central Prison,
Madurai before this Court and set him at liberty forthwith.
PRAYER in H.C.P.(MD).No.1282 of 2015:
Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Habeas Corpus, calling for the entire records relating to
the detention order passed in Cr.M.P.No.09/NSA/2015, dated 22.08.2015 on the
file of the second respondent, quash the same and consequently, direct the
respondents to produce the body or person of the detenu by name Markes @ Siva
S/o.Anthony, aged about 31 years, now detained in Central Prison, Madurai
before this Court and set him at liberty forthwith.
PRAYER in H.C.P.(MD).No.1284 of 2015:
Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Habeas Corpus, calling for the entire records relating to
the detention order passed in Cr.M.P.No.07/NSA/2015, dated 22.08.2015 on the
file of the second respondent, quash the same and consequently, direct the
respondents to produce the body or person of the detenu by name Robert
S/o.Thayalan, aged about 32 years, now detained in Central Prison, Madurai
before this Court and set him at liberty forthwith.
PRAYER in H.C.P.(MD).No.1285 of 2015:
Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Habeas Corpus, calling for the entire records relating to
the detention order passed in Cr.M.P.No.06/NSA/2015, dated 22.08.2015 on the
file of the second respondent, quash the same and consequently, direct the
respondents to produce the body or person of the detenu by name Yasar Arabath
S/o.Bahurdeen, aged about 32 years, now detained in Central Prison, Madurai
before this Court and set him at liberty forthwith.
!For Petitioners in all
the petitions : Mr.M.Ajmal Khan,
Senior Counsel for
Mr.R.Alagumani and
M/s.Ajmal Associates
^For respondents 1, 2 & 4 : Mr.S.Shanmuga Velayutham,
in all the petitions Public Prosecutor
assisted by Mr.A.Ramar,
Additional Public Prosecutor.
For 3rd respondent in all : Mr.D.Saravanan,
the petitions CGSSC
:COMMON ORDER
[Order of the Court was made by P.R.SHIVAKUMAR, J] Munees @ Murugan, who has been detained under the National Security Act, 1980 by the second respondent / the District Collector and District Magistrate, Ramanathapuram District, Ramanathapuram by virtue of the detention order in Cr.M.P.No.08/NSA/2015, dated 22.08.2015, has filed H.C.P.(MD).No.1281 of 2015 for quashing the impugned detention order relating to him and to set him at liberty.
2.Markes @ Siva, who has been detained under the National Security Act, 1980 by the second respondent / the District Collector and District Magistrate, Ramanathapuram District, Ramanathapuram by virtue of the detention order in Cr.M.P.No.09/NSA/2015, dated 22.08.2015 has filed H.C.P. (MD).No.1282 of 2015 for quashing the impugned detention order relating to him and to set him at liberty.
3.Robert, who has been detained under the National Security Act, 1980 by the second respondent / the District Collector and District Magistrate, Ramanathapuram District, Ramanathapuram by virtue of the detention order in Cr.M.P.No.07/NSA/2015, dated 22.08.2015, has filed H.C.P.(MD).No.1284 of 2015 for quashing the impugned detention order relating to him and to set him at liberty.
4.Yasar Arabath, who has been detained under the National Security Act, 1980 by the second respondent / the District Collector and District Magistrate, Ramanathapuram District, Ramanathapuram by virtue of the detention order in Cr.M.P.No.06/NSA/2015, dated 22.08.2015, has filed HCP (MD).No.1285 of 2015 for quashing the impugned detention order relating to him and to set him at liberty.
5.The detention orders impugned in all the four Habeas Corpus Petitions came to be passed on one and the same day i.e., on 22.08.2015 by one and the same detaining authority viz., the second respondent / the District Collector and District Magistrate, Ramanathapuram District, Ramanathapuram. Taking note of one and the same case as ground case viz., Crime No.125 of 2015 registered on the file of Keelakarai Police Station for offences punishable under Sections 489-B and 489-C of the Indian Penal Code, expressing a subjective satisfaction that they were allegedly found to be involved in activities prejudicial to the security of the State, sovereignty of India and prejudicial to the maintenance of the public order and it became necessary to detain them by virtue of the powers conferred on the detaining authority under Section 3(2) of the National Security Act, 1980 (Central Act 65 of 1980) read with orders issued by the Government in G.O.Ms.No.940/Public (Law and Order-F) Department, dated 18.07.2015, the detaining authority passed the impugned detention orders. All the four detenu have challenged the respective detention orders, raising similar grounds. Hence, all the four Habeas Corpus Petitions are taken up together, heard jointly and are being disposed of by a common order.
6. A case came to be registered on the file of Keelakarai Police Station in Crime No.125 of 2015 for offences under Section 489-B and 489-C of the Indian Penal Code on 31.07.2015 based on the complaint of Ramesh S/o.Rengasamy, Chief Manager, State Bank of India, Keelakarai, against two named accused (Nalla Ibrahim S/o.Karuthamaraickayar, Erwadi and Sarbudeen S/o.Syed Hussain, Erwadi) noting them as suspected accused. In the complaint, it was alleged that on 31.07.2015 at about 11.30 hours Nalla Ibrahim S/o.Karuthamaraickayar, Erwadi made remittance of a sum of Rs.20,000/- in Account No.35096654431 maintained in the name of M.Arunkumar and at that point of time, Mrs.Ummu Habeeba, Cashier of the said Bank, found out five thousand rupees currency notes, out of the amount deposited by Nalla Ibrahim, to be counterfeit notes; that one Sarbudeen S/o.Syed Hussain, Erwadi made remittance in Account No.30455431210 maintained in the name of M.Abdul Asish and at that point of time, Mr.Sundaram (Cashier), who was in the counter, found a thousand rupees note to be a counterfeit currency note and informed the same to Mr.Irulandi, Cash Officer and also the officer dealing with cheque; that after confirming the currency notes to be counterfeit notes, the defacto complainant got the remitters viz., Nalla Ibrahim and Sarbudeen, to his room and enquired with them; that they replied that they had no knowledge about it; that an intimation was given to the Police over phone and as per their advice, the complaint was lodged and that the alleged counterfeit currency notes were also produced by the defacto complainant to the Police.
7. Subsequently, during the course of investigation, the investigating officer is said to have found out the involvement of the petitioners in the Habeas Corpus Petitions (four detenu) and arrested them, pursuant to which they were remanded to judicial custody on the ground that Robert, Markes @ Siva and Munees @ Murugan (detenu in H.C.P.(MD).Nos.1284, 1282 and 1281 of 2015 respectively) were found to have transported people to Srilanka by a country boat of the detenu Robert; that Marks @ Siva also smuggled with narcotic drugs to Srilanka by the same boat and that he brought Rs.9,50,000/- of counterfeit money through one Amalan from Srilanka by the said country boat. It is also claimed that during investigation, it was found out that all the four detenu viz., Robert, Markes @ Siva, Munees @ Murugan and Yasar Arabath, and one Benadit @ Raj caused circulation of counterfeit currency notes.
8. Based on the affidavit of sponsoring authority viz., the Inspector of Police, Keelakarai Police Station, Ramanathapuram District, the second respondent (detaining authority) clamped the orders of detention on all the four detenu, who are the petitioners in the Habeas Corpus Petitions.
9. The orders of detention have been assailed on several grounds. However, the learned senior counsel Mr.Ajmal Khan, appearing on behalf of Mr.R.Alagumani, learned counsel on record for the petitioners in H.C.P.(MD).Nos.1281, 1282 and 1284 of 2015 and on behalf of M/s.Ajmal Associates, learned counsel on record for the petitioner in H.C.(MD).No.1285 of 2015, mainly relies on the following grounds in assailing the orders of detention:-
?(1) The booklets supplied to the detenu contain several illegible copies of documents. Despite the fact that individual representations were made for the supply of illegible copies of those documents, the detenu were not supplied with such legible copies and the same resulted in injustice and denial of reasonable opportunity to the detenu to make an effective representation to the State Government and the Central Government or to challenge the detention order in an effective manner at the earliest possible time.
(2) Though the detaining authority referred to the alleged fact that the activities of detenu - Markes @ Siva and Munesh @ Murugan in transporting people to Srilanka by a country boat belonging to the detenu Robert, smuggling narcotic drugs to Srilanka by the same boat, smuggling counterfeit currency notes to the amount of Rs.9,50,000/- through one Amalan to India from Srilanka by the same country boat and circulation of the said counterfeit money by all the four detenu and one Benadit @ Raj came to be noticed during interrogation, the documents showing such revelation in interrogation viz., copies of confession statements of the accused or copies of statements recorded under Section 161(3) of Cr.P.C. Implicating the detenu, have not been furnished to the detenu. Such documents also were not furnished to the detaining authority as evidenced from the booklets supplied to the detenu. Hence, the observation that the detenu were involved in smuggling narcotic drugs to Srilanka and bringing Rs.9,50,000/- counterfeit currency notes through one Amalan to India from Srilanka and all the detenu along with one Benadit @ Raj caused circulation of the counterfeit currency notes, have been made either based on no material or based on extraneous materials. In any event, it will show non application of mind on the part of the detaining authority and mechanical clamping of the orders of detention.
(3)The Tamil version of similar bail order relied on by the detaining authority to express his subjective satisfaction regarding imminent possibility of the detenu coming out on bail in the ground case has not been furnished to the detenu. Individual representations dated 24.08.2015 were made seeking supply of the translated Tamil version of the similar bail order relied on by the detaining authority. Despite such a request having been made by the detenu, they were not furnished with copies of the Tamil translation of the similar bail order. Thereby a prejudice was caused to the detenu as a reasonable opportunity of making an effective representation against the order of detention to the State Government and to the Central Government at the earliest point of time was denied.
(4)The detaining authority?s expression of subjective satisfaction regarding the imminent possibility of the detenu coming out on bail in the ground case in which they had been remanded shall be ipse dixit not supported by cogent materials. So far as the detenu - Munees @ Murugan and Yasar Arabath are concerned, they filed bail applications in the ground case as Cr.M.P.No.2073 of 2015 and Cr.M.P.No.2022 of 2015 respectively, on the file of the Sessions Court, Ramanathapuram and both the petitions were dismissed on 13.08.2015. However, the detaining authority, besides noting the said fact of dismissal of bail petitions, referred to a bail order dated 15.06.2015 in Crl.M.P.No.1404 of 2015 granted in respect of the accused in another case viz., Crime No.87 of 2015 on the file of Keelakarai Police Station. The citation of a bail order granted on 15.06.2015, after the dismissal of the bail petitions filed by those detenu on 13.08.2015, to express subjective satisfaction of the said detenu coming out on bail, will show non application of mind. Similarly, the detaining authority referred to the fact that no bail application was filed in respect of the detenu - Robert and Markes @ Siva.
Still, the detaining authority referred to the very same similar bail order. Such a reference to the bail order in the other case, when no bail petition is pending, shall be improper and vitiate the subjective satisfaction as held by a Larger Bench of the Hon'ble Supreme Court in Rekha Vs. State of Tamil Nadu and others reported in (2011) 5 SCC 244, further explained by another Division Bench of the Hon'ble Supreme Court in Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181 and an order of a Division Bench of the Madras High Court in H.C.P(MD).No.1154 of 2015, dated 11.08.2015 [Chandrakala Vs. State of Tamil Nadu and others].?
10. We have heard the submissions of the learned State Public Prosecutor - Mr.S.Shanmuga Velayuthan, appearing for the respondents 1, 2 and 4 and the learned Central Government Senior Standing Counsel ? Mr.D.Saravanan appearing for the 3rd respondent, on the submissions made by the learned senior counsel for the petitioners.
11. For the sake of convenience, the fourth ground raised by the learned senior counsel for the petitioners shall be taken as a first instance and then the other ground shall be taken up later. In support of the contentions raised in the fourth ground stated above, the learned senior counsel for the petitioners relies on a Larger Bench of the Hon'ble Supreme Court consisting of three Hon'ble Judges in Rekha Vs. State of Tamil Nadu, reported in (2011) 5 SCC 244; a Judgment of a Division Bench of the Hon'ble Supreme Court consisting of two Hon'ble Judges in Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181 and an order of a Division Bench of the Madras High Court in H.C.P(MD).No.1154 of 2015, dated 11.08.2015 [Chandrakala Vs. State of Tamil Nadu and others].
12.In Rekha?s case, cited supra, the Larger Bench of the Hon?ble Supreme Court referring to the importance of the fundamental rights guaranteed by the Constitution of India and the safeguard provided against arbitrary arrest and detention, made the following observations:-
"14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India.
17. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous and historical struggles, will become nugatory.
29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal".
13.It also referred to the observation made by a Constitution Bench of the Hon'ble Supreme Court in M.Nagaraj Vs. Union of India, reported in 2007 (1) SCC [L&S] 1013 that runs as follows:-
"It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race.?
14. Coming to the question of the propriety of the subjective satisfaction regarding the necessity to clamp the order of detention while the detenu was in custody as a remand prisoner, the Larger Bench of the Hon'ble Supreme Court in Rekha's case made the following observation:-
"27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed".
15.Mr.S.Shanmuga Velayutham, learned State Public Prosecutor, made an attempt to contend that the last part of paragraph No.27 of the judgment in Rekha?s case was omitted to be considered by the Supreme Court in the subsequent case viz., Huidrom?s case and that a proper reading of the last part of paragraph No.27 in the judgment in Rekha?s case will show that even in cases, wherein no bail application was filed or bail application filed had been dismissed, bail orders granted in comparable cases can be relied on to express subjective satisfaction regarding the real / imminent possibility of the detenu coming out on bail.
16.The learned State Public Prosecutor made the said submission separately reading the last sentence of paragraph No.27 of Rekha's case, which is found extracted above, i.e., ?However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.? The observation made by the Supreme Court in Huidrom?s case is reproduced hereunder to show that it was provided as an explanation to the last sentence in paragraph No.27 of the judgment in Rekha?s case, keeping in mind that a contention similar to the one made by the Public Prosecutor in the case on hand may be raised in future cases. In Huidrom's case, after extracting para 27 of the judgment in Rekha's case, the Supreme Court observed:
"14..... Thus, it is evident from the aforesaid judgment that it is not the similar case i.e. involving similar offence. It should be that the co- accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail.
15. In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail, resorting to the provisions of the Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eye of the law."
17. The said view of the Hon'ble Supreme Court has been followed by a Division Bench of the Madras High Court in Chandrakala's case, cited supra.
18.As it has been clearly held by the Supreme Court in Huidrom?s case that when bail application was not pending, making reference to bail orders in any case other than the bail orders granted to the co-accused in the same case shall not be permissible to express the subjective satisfaction of the detenu coming out on bail. In this regard, another Division Bench of this Court, of which one of us was a party [Justice P.R.SHIVAKUMAR] in an unreported decision in H.C.P(MD).No.1567 of 2015 [Sri Devi Vs. Secretary to Government of Tamil Nadu, Home Prohibition and Excise Department and others], vide order dated 14.12.2015, followed the same view and reiterated the law on this subject in the following words:
?12. From the consideration of the above cited Judgments, the law on the subject can be summed up as follows:-
i).The power of preventive detention is not to be used solely for the purpose of preventing the accused, who has been remanded in a criminal case, from coming out on bail.
ii). The detention under the preventive detention laws should not amount to punitive measure of depriving the personal liberty by way of penalty rather than prevention of commission of particular type of offences causing breach to peace or public order or from acting a manner injurious to the public health or detrimental to the national security or detrimental to the supply of essential commodities, as the case may be.
iii). The normal exercise of power as contemplated under Section 7 of the Act 14 of 1982 shall be made when a person is at large. The necessity to clamp an order while such person is in custody will arise only when there is an imminent possibility of his coming out on bail in the case in which he was remanded. This will be clear from Section 7 of the Act 14 of 1982 which narrates the steps to be taken if the person against whom detention order has been made has absconded or is concealing himself so as to avoid the execution of the order of detention.
iv). A reading of Section 7 of Act 14 of 1982 will show that the normal course is to detain a person under the said Act when there is absolute necessity to prevent such person at large from acting in a manner prejudicial to the maintenance of public order or prejudicial to the maintenance of supply of essential commodities to the public, as the case may be. It is based on the presumption that a person in custody as a remand prisoner cannot act in such a way. However, as an exception, it is made permissible to pass an order of detention while such person is in custody as a remand prisoner and in such exceptional cases, the Detaining Authority should express a further subjective satisfaction of the real/imminent possibility of such person being released on bail, in addition to the subjective satisfaction that he/she conforms to the definition of "Bootlegger, Drug-offender, Forest-
offender, Goonda, Immoral Traffic Offender, Sand Offender, or Slum-grabber", as the case may be. The exception, namely clamping of the order of detention while the person is already in custody as a remand prisoner, should not be made the general rule, relegating the general rule of clamping orders of detention on persons, who are at large, without there being any necessity to express the subjective satisfaction of their coming out on bail. In case the order of detention is to be passed while the person to be detained is already in custody, the Detaining Authority shall express the subjective satisfaction regarding the imminent possibility of the detenu coming out on bail in the case in which he was remanded. While expressing such subjective satisfaction, if no bail application is pending, bail order passed in any other case cannot be stated as a bail order in a similar case as the basis for the subjective satisfaction of the Detaining Authority regarding the real/imminent possibility of the detenu coming out on bail in the case in which he has been remanded.
v). In case bail application has not been filed, release of co-accused in the very same case alone can be cited as the similar case particulars to express the subjective satisfaction of the detenu coming out on bail. It is an exception to the Rule enunciated in above clause (iv).
vi). In case bail application is pending, then only, the Detaining Authority can refer to a bail order passed in a comparable case, namely, the case involving similar offences.?
As such the contentions raised has already been covered by the Supreme Court and the same has been followed by the Division Benches of this Court. In view of the above discussions, the fourth ground raised by the learned senior counsel appearing for the petitioners has got to be countenanced.
19.In the case on hand, the bail applications filed by the two detenu viz., Munees @ Murugan and Yasar Arabath, in the ground case in Cr.M.P.No.2073 of 2015 and Cr.M.P.No.2022 of 2015 respectively, on the file of the Sessions Court, Ramanathapuram came to be dismissed on 13.08.2015. Thereafter, till the passing of the orders of detention, no bail application was filed on their behalf. In respect of other two detenu viz., Markes @ Siva and Robert no bail application was filed. Admittedly no bail application was pending in any Court in respect of any of the four detenu as on the date of passing of the orders of detention. No co-accused in the ground case is shown to have been released on bail. On the other hand, the detaining authority referred to a bail order in yet another case viz.,Crime No.87/2015 registered on the file of Keelakarai Police Station for offences under Sections 489-B and 489-C IPC, as the similar bail order to express subjective satisfaction regarding the real possibility of the detenu coming out on bail. Applying the ratio found in Rekha?s case elucidated in Huidrom?s case and further followed in Sridevi?s case, we hold that the subjective satisfaction expressed by the detaining authority in respect of the real possibility of each one of the four detenu coming out on bail can be termed as ipse dixit not supported by cogent materials. On that ground, the orders of detention are liable to be set aside.
20. So far as the first ground is concerned, the copies of the documents found at page Nos.63 and 64 of the booklet supplied to the detenu - Munees @ Murugan, page Nos.57 and 58 of the booklet supplied to the detenu ? Markes @ Siva, page Nos.59 and 60 of the booklet supplied to the detenu - Robert and page Nos.61 and 62 of the booklet supplied to the detenu ? Yasar Arabath are illegible. The learned Public Prosecutor also does not dispute that the said copies are illegible and the same cannot be read. Though such illegible copies were included in the booklet supplied, it could have been rectified when a representation was made seeking supply of legible copies. Admittedly, such a representation was made, but no legible copies of those documents were supplied to the detenu even after receipt of the representations. The same nevertheless amounts to denial of reasonable opportunity to the detenu to make effective representations to the State Government and the Central Government or to challenge the detention order in an effective manner at the earliest possible time. As rightly contended by the learned senior counsel for the petitioners, on the said ground also, the orders of detention are liable to be set aside.
21. So far as the second ground raised by the learned senior counsel for the petitioners is concerned, the detaining authority in the grounds of detention made the following observation as to how the detenu were found to be involved in the activities of transporting people to Srilanka by a country boat, smuggling narcotic drugs to Srilanka, bringing counterfeit currency notes to India and circulating the same. The relevant portion found in paragraph No.2 of the grounds of detention is extracted hereunder:
?During the interrogation, it came to know that the accused Munees @ Murugan had been transporting the people to Srilanka by the Country boat of one Robert and also he smuggled the Narcotic Drugs to Srilanka by the same boat. Likewise, he brought Rs.9,50,000/- of counterfeit money through Amalan from Srilanka by the Country boat. Then, the accused Munees @ Murugan and his associates Robert, Benadit @ Raj, Markes @ Siva and Yasar Arabath distributed the counterfeit money in circulation. The accused Munees @ Murugan was arrested on 03.08.2015 at 20.00 hours near north seashore of Pamban Bridge and recorded his confession statement. Based on his confession, case properties were seized under mahazar.?
There is nothing to show that any confession statement or other statement of the accused was placed before the detaining authority. Copy of any such document has not been included in the booklet supplied to the detenu. Hence, the said observation, as rightly contended by the learned senior counsel for the petitioners, shall be either based on no material or based on extraneous materials, vitiating the order of detention. On that ground also, the orders of detention are liable to be set aside.
22. So far as the third ground of challenge is concerned, copies of similar bail order relied on by the detaining authority found at page No.65 of the booklet supplied to the detenu Munees @ Murugan, page No.59 of the booklet supplied to the detenu Markes @ Siva, page No.61 of the booklet supplied to the detenu Robert and page No.63 of the booklet supplied to the detenu Yasar Arabath, are in English. Admittedly representations came to be made on 24.08.2015 stating that the detenu need a translated copy of the same and they should be supplied with a Tamil translation of the said document. Despite such a request having been made, Tamil Translation of the said similar bail order relied on by the detaining authority has not been furnished. On that ground also, the orders of detention are liable to be set aside
23. In addition, the bail order dated 15.06.2015 made in Cr.M.P.No.1404 of 2015 in respect of one M.Mohamed Basith in Crime No.87 of 2015 on the file of Keelakarai Police Station has been referred to in the detention orders as bail order in similar case. The said bail order came to be passed about two months prior to the dismissal of the bail petitions filed by two detenu viz., Munees @ Murugan and Yasar Arabath. The very fact that the bail petitions filed by the said detenu came to be dismissed, after the bail order in the alleged similar case was passed, will show non-application of mind on the part of the detaining authority in making a comparison to express subjective satisfaction of the detenu coming out on bail. On the said ground also, the orders of detention passed in respect of the detenu - Munees @ Murugan and Yasar Arabath are liable to be set aside.
24.The foregoing discussions will show that the orders of detention are vitiated on all the grounds and they are liable to be set aside.
25.In the result, these Habeas Corpus Petitions viz., H.C.P(MD)Nos.1281, 1282, 1284 and 1285 of 2015 are allowed and this Court sets aside the orders of detention dated 22.08.2015 made in
(i)Cr.M.P.No.08/NSA/2015, (ii)Cr.M.P.No.09/NSA/2015,
(iii)Cr.M.P.No.07/NSA/2015 and (iv) Cr.M.P.No.06/NSA/2015 respectively, by the second respondent / the District Collector and District Magistrate, Ramanathapuram District, Ramanathapuram and directs the release of the detenu by names (i)Munees @ Murugan S/o.Muniyandi (aged about 27 years), (ii) Markes @ Siva S/o.Anthony (aged about 31 years), (iii) Robert S/o.Thayalan (aged about 32 years) and (iv) Yasar Arabath S/o.Bahurdeen (aged about 32 years) respectively, if their custody/detention are not authorised in specific cases or by any other order of detention.
To
1.The Secretary to Government, Public (Law and Order-F) Department, State of Tamil Nadu, Secretariat, Chennai ? 600 009.
2.The District Collector and District Magistrate, Ramanathapuram, Ramanathapuram District.
3.The Secretary to Government of India, Ministry of Home Affairs, Department of Internal Security, North Block, New Delhi ? 110001.
4.The Superintendent of Prison, Madurai Central Prison, Madurai.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..