Madras High Court
Mayilvanam vs The Secretary To Government on 7 December, 2015
Bench: P.R.Shivakumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.12.2015
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
H.C.P(MD)No.1555 of 2015
Mayilvanam .. Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai 600 009.
2.The Commissioner of Police,
Office of the Commissioner of Police,
Madurai City, Madurai.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai District. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus to call for the entire records connected with
the detention order of the second respondent in No.141/BCDFGISSSV/2015, dated
30.10.2015 and quash the same and direct the respondents to produce the
detenu namely Karthigeyan @ Alangulam Karthick, S/o.Maduraiveeran, aged about
30 years, detained in Madurai Central Prison, before this Court and set him
at liberty forthwith.
!For petitioner : Mr.R.Alagumani
^For Respondents : Mr.A.Ramar
Additional Public Prosecutor
:ORDER
[Order of the Court was made by P.R.SHIVAKUMAR, J.] The petitioner is the mother of the detenu. The detenu has been detained by the second respondent by his order in Detention Order No.141/BCDFGISSSV/2015, dated 30.10.2015, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No.803 of 2015 registered on the file of B1 Vilakkuthoon Police Station for offences punishable under Sections 147, 148, 302 of the Indian Penal Code and Section 3 of the Explosive Substances Act, 1908.
2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of 'Goonda' and that his presence at large would be prejudicial to the maintenance of public order and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition.
3. Though the order of dentention is assailed on a number of grounds raised in the affidaivt filed in support of the Habeas Corpus Petition, the learned counsel for the petitioner gives up the other grounds and confines his arguments on the following grounds alone:-
(i). Any pre-detention representation made by or on behalf of the detenu should have been reflected in the grounds of detention to show the application of mind by the Detaining Authority to the same. The petitioner, namely, the mother of the detenu, submitted a pre-detention representation dated 12.09.2015 to the Detaining Authority stating that there was an illegal detention without any authority of law for two days. Besides making such a representation, the petitioner also filed a Writ Petition in W.P.(MD).No.17076 of 2015 for a direction to take action against the Sponsoring Authority in which the pre-detention representation received by the Detaining uthority was admittedly sent to the Sponsoring Authority for its comments. Despite the fact that such a pre-detention representation was received by the Detaining Authority and it was referred to the Sponsoring Authority for its comments, the same was not reflected in the grounds of detention. It has also not been included in the Booklet to show that the same was considered by the Detaining Authority. The non-consideration of the pre- detention representation will vitiate the order of detention.
(ii). Besides failing to consider the pre-detention representation, the Detaining Authority failed to forward the pre-detention representation along with the materials sent to the Government for its approval and the failure to do so will amount to denial of reasonable opportunity to the detenu to ensure that his representation was placed before the Advisory Board and considered by the Government, in the light of the opinion of the Advisory Board.
4. We also heard the submissions made by the learned Additional Public Prosecutor on the above said contentions raised on behalf of the petitioner.
5. The detention order impugned in this Habeas Corpus Petition was passed on 30.10.2015. More than two weeks before the passing of the said order, the petitioner/the mother of the detenu, sent a representation dated 12.09.2015 to the Detaining Authority complaining that the detenu was kept in illegal custody for two days before his remand. The petitioner also filed a Writ Petition before this Court in W.P.(MD).No.17076 of 2015 with a prayer for a direction in the nature of a Writ of Mandamus to take action against the Sponsoring Authority, who was said to have kept the detenu under illegal custody without being authorised by law. The receipt of representation dated 12.09.2015 was admitted, but the averments made therein have been denied by the Sponsoring Authority in the counter affidavit filed in the above said Writ Petition. It is also admitted that the representation was sent to the Sponsoring Authority for remarks. Still, the Sponsoring Authority seems to have failed to submit the said representation along with the proposal for detention as ?Goonda?. The Detaining Authority to whom the pre-detention representation was made also failed to call for the pre-detention representation and adverted to the same in the grounds of detention.
6. So far as the first ground is concerned, the learned counsel for the petitioner cited the Judgment of a Division Bench of this Court in Chandra Vs. Secretary to Government, reported in 2010 (2) MLJ (Crl) 1038, of which one of us [P.R.SHIVAKUMAR] was a party, in support his contention that the non-consideration of the pre-detention representation will amount to non- consideration of a relevant material vitiating the order of detention. Referring to the earlier Judgment of the Madras High Court in Uma Maheswari Vs. Secretary to Government, reported in 2009 3 MLJ (Crl) 449, it was held therein that the non-consideration of the pre-detention representation vitiated the order of detention therein. The relevant passage from the said Judgment is extracted hereunder:-
"13. The next contention raised on behalf of the petitioners is that the detention orders are vitiated for non-consideration of relevant materials that may amount to pre-detention representation. In this regard the learned counsel for the petitioners relied on a decision of a Division Bench of this court in D.Uma Maheswari v. Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai-9 and Another reported in (2009) 3 MLJ (Crl) 469 in which it has been held, "non- consideration of pre-detention representation would affect order of detention since it has caused prejudice to the interest of detenu." All the detenus, according to the respondents, were arrested on 24.11.2009 and produced before the Magistrate on 25.11.2009 whereupon they were remanded to judicial custody in the ground case as well as the adverse cases. However, there was an allegation made even prior to the passing of the order of detention that the detenu Murali was taken into custody by the police on 18.11.2009 itself and was being kept in illegal custody. A telegram was sent to the second respondent (detaining authority) on behalf of the detenu Murali on 20.11.2009 itself. The said telegram was not referred to and was not at all considered by the detaining authority. There is no reference to the said telegram or to the allegation made on behalf of the detenu Murali that he was kept in illegal custody by the police from 18.11.2009. In addition to the said telegram, there is an averment found in the affidavit filed in a previous HCP, namely H.C.P.No.2097/2009, alleging illegal detention without an order of remand by the Magistrate or any preventive detention order. The respondents in the said HCP, informed the court that the detenus were arrested on 24.11.2009 and remanded to judicial custody on 25.11.2009. Only based on the said representation that the detenus were remanded to judicial custody on 25.11.2009, the previous HCP filed by the wife of the detenu Murali, namely H.C.P.No.2097/2009 was closed. The said order was passed on 30.11.2009 in the above said HCP by a division bench of this court. The impugned orders of detention came to be passed on 14.12.2009, i.e. 14 days after the date of the said disposal of the previous HCP. As such pre- detention representation in the form of telegram sent on 20.11.2009 and the averment made in the affidavit filed in the previous HCP (H.C.P.No.2097/2009) ought to have been taken into consideration by the detaining authority before passing orders of detention. The detaining authority failed to make any reference to the said pre-detention representation. In this regard, we are in complete agreement with the view expressed by the earlier division bench in the order cited by the learned counsel for the petitioners and referred to supra. Therefore, this court is convinced with the contention raised on behalf of the petitioners that the non-consideration of the above said pre- detention representation would vitiate the order of detention".
7. Hence, as rightly contended by the learned counsel for the petitioner, the failure to do so will show non-application of mind by the Detaining Authority to a material aspect. On that ground, the order of detention is liable to be set aside.
8. So far as the second ground urged by the learned counsel for the petitioner is concerned, admittedly, while submitting the detention order and the materials to the Government for its approval, the Detaining Authority did not forward the pre-detention representation. For better appreciation, sub-section 3 of Section 3 of the Act 14 of 1982, is extracted hereunder:-
"When any order is made under this Section by an officer mentioned in sub-section (2), he shall be forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more thena twelve days after making thereof, unless, in the meantime, it has been approved by the State Government".
9. Sub-section 3 of Section 3 of the Act 14 of 1982 mandates that the Detaining Authority shall forthwith report the clamping of the order of detention to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter. The term "such other particulars having a bearing on the matter" will also include the pre-detention representation. In a similar case dealt with by a Division Bench of the Madras High Court in T.M.Syed Ali and another Vs.State of Tamil Nadu, reported in 1999 II CTC 490, a similar provision, namely the Section 3(4) of the National Security Act 1980, was considered and the following observation was made:-
"10. Similar is the position in regard to the non-forwarding of the aforesaid material to the State Government. The said representation though made anterior in point of time to the passing of the impugned order of detention, the same in view of the decision of this Court in the case of Mrs.Shanthi Vs. State of Tamil Nadu and another in H.C.P.No.656 of 1998, decided by T.Jayarama Chouta and V.Bakthavatsalu, JJ, on 17.09.1998 are relevant material piece of evidence to be sent to the Government, for the Government to take a decision under Section 3(4) of the Act, whether to confirm or not to confirm the order of detention. For the above said reasons, the impugned orders of detention are liable to be quashed and set aside. Accordingly, both H.C.Ps are allowed. The impugned orders of detention are thus quahsed and set aside. The petitioners [detenus] are directed to bet set at liberty forthwith unless they are required in some other case".
10. The above observation squarely applies to the case on hand in respect of the requirement of sub-section 3 of Section 3 of the Act 14 of 1982. As rightly contended by the learned counsel for the petitioner, the failure to submit the pre-detention representation along with the material papers to the Government for its consideration caused prejudice to the detenu. On that ground also, the order of detention is liable to be set aside.
11. For the foregoing reasons, this Court holds that the order of detention is vitiated on both the grounds and the same is liable to be set aside.
12. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the Order of Detention dated 30.10.2015, made in 141/BCDFGISSSV/2015, passed by the second respondent, the Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai and directs the release of the detenu, by name Karthikeyan @ Alankulam Karthick S/o.Madurai Veeran, aged about 30 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.
To
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009.
2.The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai.
3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..