Madras High Court
Kasthuriby Gandhi vs The Secretary To Government on 10 February, 2013
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.02.2013 CORAM THE HON'BLE MR.JUSTICE S.TAMILVANAN AND THE HON'BLE MR.JUSTICE V.S.RAVI H.C.P.(MD)No.1226 of 2013 Kasthuriby Gandhi .... Petitioner Vs. 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai 600 009. 2.The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai. 3.The Superintendent of Police, Madurai Central Prison, Madurai District. .... Respondents Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the entire records pertaining to the detention order of the second respondent passed in No.84/BDFGISSV/2013, dated 05.10.2013 and quash the same and consequently, direct the respondents to produce the petitioner's son, Alaguraja, son of Singathevan, aged about 35 years detained in Madurai Central Prison before this Court and set him at liberty. !For petitioner ... Mr.M.Ajmal Khan, Senior Counsel for Mr.R.Alagumani ^For respondents ... Mr.C.Ramesh, APP :ORDER
(Order of the Court was made by S.TAMILVANAN,J.) The Habeas Corpus petition has been filed invoking Article 226 of the Constitution of India by the mother of the detenue. The detention order dated 05.10.2013 was passed by the Commissioner of Police, Madurai City, the second respondent herein, in No.84/BDFGISSV/2013.
2.The petitioner, mother of the detenue, has challenged the detention order by way of filing the Habeas Corpus petition and seeking an order, directing the respondents to call for the entire records pertaining to the impugned detention order passed against her son, Alaguraja, branded him as a "Goonda" under Section 3(1) of the Tamil Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982, [for brevity "the Act"]. Now, he has been lodged at Central Prison, Madurai.
3.Mr.M.Ajmal Khan, learned Senior Counsel appearing for Mr.R.Alagumani, learned counsel for the petitioner argued that the detenue had made a written representation to get the assistance of a legal practitioner and the same was forwarded by the Advisory Board to the Government, which was rejected, without assigning proper reasons. It is argued further by the learned Senior Counsel that on 25.09.2013 itself the alleged detenue was taken to the police station and was illegally detained and tortured. It is further submitted that on 26.09.2013 at about 10 a.m., the detenue's counsel filed a petition under Section 97 of Cr.P.C., before the Judicial Magistrate No.V, Madurai in Crl.M.P.No.3100 of 2013, seeking a search warrant verifying the illegal detention at the Police Station, the premises of the Sponsoring Authority. The concerned Judicial Magistrate had appointed a legal aid counsel to visit the police station and to file a report. In the grounds of the Habeas Corpus petition, the petitioner has stated that after knowing about the order of the search warrant being issued, the Sponsoring Authority hurriedly foisted the ground case and produced the detenue on 26.09.2013 at about 16 hours before the Judicial Magistrate No.IV, Madurai. As the detenue was remanded in the ground case, he filed a bail application, which was pending at the time of passing the detention order. Though the co-accused in the ground case was not granted bail by the competent court, relying on some other case relating to one Gopi @ Gopinath, the Detaining Authority held that there is "imminent possibility" or likelihood of the detenue coming out on bail. For which, the learned Senior Counsel relied on a decision in Huidrom Konungjao Singh Vs. State of Manipur and others reported in 2012 (3) MLJ (Crl.) SCC 794. It is well settled that the Detaining Authority cannot rely on the bail order granted in favour of same other person who is not a co accused in the ground case.
4.Mr.M.Ajmal Khan, learned Senior Counsel appearing for the petitioner further argued that there was no sufficient material to have subjective satisfaction to detain the son of the petitioner. It is also argued that defective translated copy of the material papers were furnished to the detenue. According to the learned Senior Counsel, the mother tong of the detenu is Tamil and he knows only Tamil. However, as per page Nos.182 to 184 of the paper book supplied to him, the Tamil version differs from the English version of the paper book. Hence, furnishing defective translated copies are only denial of reasonable opportunity to the detenue. The Sponsoring Authority had registered FIR against two accused persons and both have similar previous cases. However, the Detaining Authority and the Sponsoring Authority had chosen the detenue alone to detain under preventive detention for the reasons best known to them, which is violative of Article 14 of the Constitution of India. Several pages of the booklet supplied to the detenue are illegible and the detenue could not read and understand the same, whereby, prevented the detenue from making effective representation. On 11.10.2013 the petitioner preferred representation before the first respondent and requested for the supply of legible copies of the said documents. However, that was not considered expeditiously and it was supplied only after 12 days whereby the detenue was prevented from making his representation before the Detaining Authority.
5.The third point raised on behalf of the petitioner is that the Sponsoring Authority has not placed all the materials relied on for passing the order before the Detaining Authority. Copy of the petition filed under Section 97 Cr.P.C. and important material paper were not produced. In this regard, the learned Senior Counsel drew the attention of this Court to page No.24 of the additional typed set of papers. A copy of the order passed on 26.09.2013 in Crl.M.P.No.3100 of 2013 by the Judicial Magistrate No.5, Madurai, whereby it is seen that search warrant had been issued to find out the detenue, Alaguraja at the police station, the premises of the Sponsoring Authority, prior to the detention order. Learned Senior Counsel submitted that it was suppression of material fact by the Sponsoring Authority before the second respondent, the Detaining Authority. It is further argued that there is no "imminent possibility" or likelihood of the petitioner coming out on bail. However, the Detaining Authority took a view, which would show only the non-application of mind. It was also argued that there is a delay in considering the representation made on behalf of the detenue, which would also vitiate the detention order.
6.Per contra, the learned Additional Public Prosecutor appearing for the respondents submitted that as per Section 11(5) of the Tamil Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982, there is a bar in engaging a legal practitioner before the Advisory Board. Hence, the written representation made by the detenue, seeking permission to get the assistance of a legal practitioner was forwarded to the Government and the Government, in view of Section 11(5) of the Act, negatived the request made by the detenue and therefore, there is no error in rejecting the request of the detenue for engaging a legal practitioner.
7.So far as the defective translated copy is concerned, the learned Additional Public Prosecutor submitted that after the written request made by the detenue, proper copy was furnished to the detenue on 26.10.2013. Admittedly, the proper translated copy was served on the detenu, 12 days after passing of the detention order, whereby opportunity was not given to make his representation before the Detaining Authority.
8.The Hon'ble Supreme Court in State of Maharastra and others Vs. Zubair Haji Qasim reported in 2008(3) MLJ (Crl.) 627 (SC) has held that the detenue has no right under Section 8(e) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, to appear through a legal practitioner in the proceedings before the Advisory Board, however, he is entitled to make a representation for the services of a lawyer to appear before the said Board, which is under an obligation to consider the same dispassionately on the facts of a particular case. The representation made by a detenue for legal assistance before the Advisory Board, has to be considered not perfunctorily but with due application of mind, since in each case of detention, the liberty of an individual is involved.
9.In this regard, the learned Additional Public Prosecutor drew the attention of this Court to Section 11(5) of the Act, which reads as follows:
"11(5)Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with reference to Advisory Board."
10.According to the learned Additional Public Prosecutor, as it is a preventive detention order, the detenue is not entitled to engage the service of any legal practitioner in view of Section 11(5) of the Act, the matter connected with reference to Advisory Board. However, the written request was forwarded to the Government and the Government considering the circumstances and rejected the same. In this regard, Article 22 (3)(b) is also referred to on the side of the respondent. Though as per Article 22(1) when there is arrest or detention it is the right of the detenue to engage a legal practitioner of his choice.
11.It is also relevant to refer Article 22(1) of the Constitution of India, which reads as follows:
"22(1)Protection against arrest and detention in certain cases - (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."
12.However, as per Article 22(3)(b) nothing in clause (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention. Therefore in view of Article 22(3)(b), engaging a legal practitioner is a matter of right and the same shall not apply to a person who is arrested or detained on preventive detention.
13.In this regard, the learned Additional Public Prosecutor drew the attention of this Court to a decision rendered by Constitutional Bench of the Hon'ble Supreme Court in A.K.Roy Vs. Union of India and others reported in 1982 SCC (Cri.) 152. In the said decision, the Constitutional Bench of the Hon'ble Supreme Court in paragraph 93 has ruled as follows:
"93.We must therefore hold, regretfully though, that the detenue has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22(3)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenue. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenue. We must therefore make it clear that if the detaining authority or the government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that officers of the government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not "legal practitioner" or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Board, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Board will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them. Serving or retired Judges of the High Court will have no difficulty in understanding this position. Those who are merely "qualified to be appointed" as High Court Judges may have to do a little homework in order to appreciate it."
14.Mr.M.Ajmal Khan, learned Senior Counsel submitted that in the subsequent decision reported in 2008 (3) MLJ (Crl.) 627 (SC) the Hon'ble Apex Court has referred the decision A.K.Roy Vs. Union of India reported in 1982 SC 710 it was held that the detenue is entitled to make a representation for the services of a lawyer to appear before the Advisory Board, which is under obligation to consider the same dispassionately on the facts of each case. The representation made by a detenue for legal assistance before the Advisory Board, has, therefore, to be considered not perfunctorily, but with due application of mind, since in each case of detention the liberty of an individual is involved and personal liberty of a person is an important constitutional right. In this case the written representation was forwarded by the Board to the Government, however, the same was considered and rejected.
15.In S.Andal Vs. District Magistrate and District Collector and another reported in 2008(3) MLJ (Crl.) 144, this Court held that when a bail application filed by the detenue pending before the Court, the Detaining Authority coming to a conclusion that there is a real possibility of the detenu coming out on bail, even prior to passing of an order on bail application, was held that the detention order was passed without proper application of mind, hence the same is vitiated.
16.In Poomari Vs. Secretary to Government, Home, Prohibition and Excise Department and others reported in 2008(3) MLJ (Crl.) 543 this Court held that detention order was vitiated on the ground that the statement given by the detenu and recorded in the remand order by the Magistrate was not placed before the detaining Authority. Wherein, it was recorded by the Magistrate that the detenue had been assaulted by police and threatened that case would be foisted against his family members if he informs the fact to the Magistrate. However, the copy of the remand report was not placed before the Detaining Authority and the fact of the alleged assault and threat by police was suppressed, hence, it was held that the order was vitiated. It is crystal clear that all necessary material papers should be placed before the Detaining Authority to have proper subjective satisfaction. If some material papers, which are relevant, not produced before the Detaining Authority that would certainly vitiate the detention order on the ground of suppression of materials papers.
17.In Sugumath Kanish Vs. State of Tamil Nadu and others reported 2009(4) MLJ (Crl.) 443, this Court held that the representation made by the detenue for legal assistance before the Advisory Board, has to be considered, not perfunctorily, but, with due application of mind, since in each case of detention, the liberty of an individual is involved in the light of the decision rendered by the Hon'ble Apex Court in Kavitha Vs. State of Maharastra and others reported in AIR 1981 SC 1641.
18.It was also well founded that furnishing copy of defective translation of the remand order and other material papers is mandatory and failure to consider the original order of remand while disposing the representation would vitiate the detention order and the detention, accordingly, would be unsustainable, in law, which is applicable to the present case.
19.In Daisey Vs. State of Tamil Nadu and another reported in 2008 (2) MLJ (Crl.) 21, 2010(2) LW (Crl.) 1429 in Buvaneswari Vs. State of Tamil Nadu and others, it is held that once a representation, seeking legal assistance is made by the detenue to the Advisory Board, the same has to be considered by the Advisory Board and the Board has to pass appropriate orders, failure to do so, would vitiate the order.
20.As argued by Mr.M.Ajmal Khan, learned Senior Counsel appearing for the petitioner that preventive detention orders are exceptions to the criminal laws, which requires that the alleged guilty has to be established by the prosecution beyond reasonable doubt. It is also brought to the notice that in Western countries like USA, Great Britain and other countries, no such preventive detention laws are in force. However, the Honb'le Apex Court found that preventive detention laws are not against the fundamental rights guaranteed under Constitution of India and accordingly, upheld the detention orders, since there are reasonable safeguards available in favour of the detenues. When there is failure to comply with the mandatory provisions to safeguard the fundamental rights of any individual, the detention order would not sustainable.
21.In the light of various decisions rendered by the Hon'ble Apex Court, it has been made crystal clear that there must be subjective satisfaction by the Detaining Authority based on the materials placed by the Sponsoring Authority. If the materials are not sufficient to have subjective satisfaction, the Detaining Authority cannot pass the detention order. Similarly, suppression of material facts before the Detaining Authority by the Sponsoring Authority is also a vital aspect. When there is non application of mind on the part of the Detaining Authority for having the subjective satisfaction the detention order would have no legs to stand, if the same is challenged before the Court having jurisdiction. It is well settled that the preventive laws are not punitive in nature, but, only preventive. Unless there is imminent possibility or likelihood of the detenue coming out on bail and committing similar offence, detention order cannot be clamped on the accused.
22.When a similarly placed co-accused enlarged on bail, the Detaining Authority can presume that there is imminent possibility or likelihood of the detenue coming out on bail. However, citing bail order granted in favour of some other accused, who is not a similarly placed person, the Detaining Authority cannot say that there is imminent possibility or likelihood of the detenue coming out on bail and such a view would be construed only as non application of mind of the authority passing the order.
23.In view of Article 22(5) of the Constitution of India, unexplained delay in considering the representation made on behalf of the detenue is also a vital factor. If there is any unexplained delay that would vitiate the detention order, since personal liberty of any individual is paramount and that cannot be tampered by any preventive order in view of the Constitutional guaranteed under Article 19 and 21 of the Constitution.
24.It is mandatory on the part of the Detaining Authority and the Government to furnish copy of material papers relied on by the Detaining Authority in the language known to the detenue. There shall be no illegible copy or defective translated copy furnished to comply with the mandatory requirement of providing reasonable opportunity to the detenue so as to make his effective representation before the authority or the Government.
25.It is seen from the paper book furnished to the detenu that the Tamil translation version is not in conformity with the English version. The English version is available in paper book at page No.182, which is a remand order and there was a defective translated copy furnished. As contended by the learned Senior Counsel appearing for the petitioner, it is the duty of the respondent to furnish only a proper translated copy. As it is a defective translated copy, furnishing the same, could not be construed as reasonable opportunity provided to the detenu. It is also brought to the notice that the Sponsoring Authority has not placed all the materials before the Detaining Authority. It is not in dispute that the detenu had informed that he was taken to the Police station, without registering a case.
26.Learned Senior Counsel appearing for the petitioner submitted that in view of the fact a petition was filed before the concerned Judicial Magistrate, seeking search warrant, since there was illegal detention. The same was stated subsequently by the detenu and recorded by the Magistrate, hence, it could have been brought to the notice of the Detaining Authority, however, that was not done by the Sponsoring Authority. It is not in dispute that a petition was filed under Section 97 of Cr.P.C. for issuance of search warrant prior to the remand of the detenu and a legal aid counsel was appointed, by the learned Magistrate, however, the relevant materials were not placed before the Detaining Authority, which vitiates the detention order.
27.In a similar circumstances, in Poomari Vs. Secretary to Government and others reported in 2008(3) MLJ (Crl.) 543, a Division Bench of this Court has held that where the Magistrate had recorded the statement of the detenu that the detenu had been assaulted and threatened by Police, saying that false cases would be foisted against his family members. The relevant materials could have been placed before the detaining authority. Suppressing of the fact would vitiate the detention order.
28.There should be imminent possibility or likelihood of the accused coming out on bail for passing the detention order. Merely by stating that there is imminent possibility of the detenue coming out on bail, detention order cannot be clamped on the accused. In S.Andal Vs. District Magistrate and District Collector and another reported in 2008(3) MLJ (Crl.)144. the same has been held where a bail application filed by the detenu was pending before the Court and the Detaining Authority coming to the conclusion that there was a real possibility of the detenu coming out on bail even prior to the passing of an order on the bail application, hence, the detention order was vitiated on the ground of application of mind.
29.In view of Article 22(5) of the Constitution of India, unexplained delay in considering the representation is also an important ground to set aside the detention order, since unreasonable delay caused by the respondents is fatal to the detention order.
30.Mr.M.Ajmal Khan, learned Senior Counsel appearing for the petitioner submitted that the detention order was passed on 05.10.2013. The detenu is entitled to make his representation before the Detaining Authority within 12 days. However, due to defective translated copy being furnished and the delay the detenu could not make representation before the detaining authority. It was argued on behalf of the detenu that correct translated copy was furnished after 12 days, whereby, reasonable opportunity was not provided to the detenu, which has vitiated the order of detention.
31.Per contra, learned Additional Public Prosecutor submitted that only on the request made by the detenu, it could be possible to furnish the correct translated copy. Hence, the delay could not be construed as denial of opportunity. It cannot be disputed that it is the duty of the respondents to furnish proper translated copy, when the detenu is knowing only Tamil. Furnishing a defective translated copy and then furnishing correct translated copy after 12 days would be denial of reasonable opportunity being given to the detenue.
32.As contended by the learned Senior Counsel appearing for the petitioner only after the expiry of 12 days the correct translated copy was furnished to the detenue whereby, reasonable opportunity was not given for the detenue in approaching the Detaining Authority and there is unexplained delay of 4 days. Hence we are of the view that the delay in furnishing correct translated copy is also vitiates the detention order.
33.It is well settled that detention orders are preventive in nature and not punitive. In order to clamp the order of detention there should be imminent possibility or likelihood of the detenue coming out on bail, otherwise, the Detaining Authority cannot have subjective satisfaction to pass the order. As per regular criminal law a person could be convicted only if the guilt is proved beyond reasonable doubt. So far as the detention orders are concerned, there is no such requirement of proving the guilt of the accused beyond reasonable doubt. However, in order to safeguard the personal liberty of the individual guaranteed under Article 19 and 21, there must be proper compliance of mandatory procedures while passing detention orders. Here in this case, reasonable opportunity was not provided to the detenu for approaching the proper authority on account of furnishing defective translated copy and there is delay in furnishing proper translated copy. Similarly, the alleged imminent possibility or likelihood of the detenu coming out on bail as stated in the order is only ipsi dixit and not sustainable.
34.As discussed earlier, there are various grounds available in favour of the detenu. Having considered the arguments advanced by both the learned counsel, we are of the view that the detention order passed by the second respondent has no legs to stand on account of violation of mandatory procedures, hence, the detention order is vitiated and the same is liable to be quashed.
35.In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order passed by the second respondent, in his proceedings No.84/BDFGISSV/2013 dated 05.10.2013, is quashed. The detenu, Alaguraja, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
nbj To
1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai 600 009.
2.The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai.
3.The Superintendent of Police, Madurai Central Prison, Madurai District.