Madras High Court
Dhayalu vs The Principal Secretary To Government on 5 January, 2016
Bench: P.R.Shivakumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2016
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
H.C.P(MD)No.1682 of 2015
Dhayalu .. Petitioner
Vs.
1.The Principal Secretary to Government,
Home, Prohibition and Excise Department,
Chennai 600 009.
2.The Commissioner of Police,
Madurai City, Madurai. .. 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 in pursuant to
the proceedings of the second respondent in Detention Order
No.156/BCDFGISSSV/2015, dated 17.11.2015, quash the same and consequently
direct the respondents to produce the detenu, namely, Pandi @ Attack Pandi,
S/o.Ponnnuchamy, aged about 40 years, who is now detained in Centrar Prison,
Palayamkottai, before this Court and set him at liberty.
!For petitioner : Mr.M.Subash Babu
For N.Ilango
^For Respondents : S.Shanmugavelayutham
State Public Prosecutor
Assisted by Mr.A.Ramar
Additional Public Prosecutor
:ORDER
[Order of the Court was made by P.R.SHIVAKUMAR, J.] The petitioner is the wife of the detenu - Pandi @ Attack Pandi, S/o.Ponnnuchamy, aged about 40 years. The detenu has been detained by the second respondent by his order in Detention Order No.156/BCDFGISSSV/2015, dated 17.11.2015, 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.68 of 2013 registered on the file of C2 Subramaniapuram Police Station for offences punishable under Sections 147, 148, 341, 427, 302 IPC @ 147, 148, 341, 427, 302, 120(B), 109 r/w 34 of the Indian Penal Code and the following one adverse case:-
(i). Crime No.42 of 2013 registered on the file of B4 Keeraithurai Police Station for offences punishable under Sections 147, 148, 435, 506(ii) IPC r/w3(1) of the Tamil Nadu Properties [Prevention of Damage and Loss] Act 1992.
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 detention is assailed on a number of grounds raised in the affidavit filed in support of the Habeas Corpus Petition, the learned counsel for the petitioner mainly restricts his challenge to the following contentions:-
(i). A representation submitted to the first and second respondents to permit the appearance of the detenu by a legal practitioner before the Advisory Board was not considered by the Advisory Board.
(ii). The Detaining Authority being the Commissioner of Police, Madurai City, exercising the power delegated by the Government under Section 3(2) of the Tamil Nadu Act 14 of 1982, which provides a life span of three months for the initial delegation and for the extension of such delegation for a period not exceeding three months at a time, the detenu is entitled to know whether the Government extended such power of delegation to the Detaining Authority. The order of detention refers to G.O.(D).No.191, Home, Prohibition and Excise [XVI] Department, dated 18.10.2015, as the document by which the delegation of power was extended, but a copy of the said Government Order was not furnished to the detenu. Furnishing of a copy of the said Government Order would have enabled the detenu to know whether the Detaining Authority was clothed with such power, besides there being an opportunity to challenge the said order of the Government extending delegation at the earliest point of time. No doubt, the Government Orders being public documents published in the Government Gazette, though non-supply of the same initially may not be taken as vitiating factor. But, when a specific request is made for the supply of a copy of the Government Order, the failure to supply the same will result in a denial of reasonable opportunity to the detenu to make an effective representation and to challenge the order of detention in an effective manner at the earliest point of time. Though a representation was made for the supply of a copy of the said Government Order, no reply was received and the detenu was not supplied with a copy of the Government Order, as requested.
(iii). Though the detenu was sought to be produced on PT warrant in cases other than the case in which he was initially arrested, a copy of the petition filed by the police for issuance of PT warrant alone was produced and a copy of the order issuing such PT warrant was not produced.
The same will amount to denial of a reasonable opportunity to the detenu to make an effective challenge to the order of detention at the earliest point of time.
(iv). Non-application of mind on the part of the Detaining Authority is obvious from a comparison of the English version granting arrest warrant under Section 73 of the Code of Criminal Procedure and its Tamil version. Certain particulars found in the English version are missing in the Tamil version. The same will show non-application of mind and mechanical clamping of the order of detention by the Detaining Authority.
4.The submissions made by Mr.S.Shanmugavelayutham, the learned State Public Prosecutor in reply to the above said contentions raised by the learned counsel for the petitioner are also heard.
5. The learned Public Prosecutor, without meeting the other three grounds raised by the learned counsel for the petitioner, met the first ground, mentioned supra, by making a reference to Section 11(5) of the Tamil Nadu Act 14 of 1982, which reads as follows:-
"Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any manner connected with reference to Advisory Board".
Referring to the said provision, the learned Public Prosecutor submitted that the detenu shall have no right to have the services of a legal practitioner in the proceedings before the Advisory Board and hence, the absence of specific order either allowing or rejecting the request will not vitiate the proceedings.
6. As a reply to the said contention, the learned counsel for the petitioner referred to the Judgment of the Hon'ble Supreme Court in State of Maharashtra Vs.Zubair Haji Qasim reported in [2008] 12 SCC 792. In the said case, a detention order passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, [in short referred to as "COFEPOSA"] was set aside by the Bombay High Court on the ground that the representation made seeking legal assistance to the detenu in the proceedings before the Advisory Board was not considered. The said order was challenged before the Hon'ble Supreme Court relying on Section 8(e) of the COFEPOSA Act, which is similar to Section 11(5) of the Tamil Nadu Act 14 of 1982. Section 8(e) of the COFEPOSA Act reads as follows:-
"8.(e). a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential".
7. The Hon'ble Supreme Court in State of Maharashtra Vs.Zubair Haji Qasim reported in [2008] 12 SCC 792, referring to a Judgment of a Larger Bench consisting of three Judges in Kavitha Vs. State of Maharashtra reported in [1981] 3 SCC 558 and extracting the observations made therein, confirmed the order of the Bombay High Court setting aside the order of detention on the ground of non-consideration of the representation of the detenu for legal assistance before the Advisory Board. The following observations made in Kavitha's case was quoted by the Hon'ble Supreme Court in Zubair Haji Qasim's case:-
"..... It is true that while Section 8(e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer"
Based on the same, the Hon'ble Supreme Court, in Zubair Haji Qasim's case, came to the conclusion that the detenu's prayer for allowing to be represented by a legal practitioner was rejected by the Advisory Board by simply observing that such prayer could not be considered "for some obvious reasons".
8. In the case on hand, the request of the detenu for permitting him to avail the services of a legal practitioner was not at all stated to be considered by the Advisory Board. Hence, the contention of the learned Public Prosecutor that the detenu, in any event, cannot be granted permission to have the assistance of a legal practitioner in the proceedings before the Advisory Board cannot be countenanced, as it is a subject covered by the Larger Bench of the Hon'ble Supreme Court in Kavitha's case, which was followed by another Bench of the Hon'ble Supreme Court in Zubair Haji Qasim's case.
9. So far as the contention of the learned counsel for the petitioner regarding the non-furnishing of the Government Order is concerned, admittedly, the power delegated to the Detaining Authority was being periodically extended by fresh Government Orders passed once in three months and a copy of the latest Government Order extending the delegation, which has been referred to in the detention order, has not been furnished to the detenu. Though non-furnishing of the same initially may not be taken serious note of, when a representation is made seeking supply of a copy of the said Government Order to make an effective challenge to the detention order, such request ought to have been considered properly and the failure to do so and the mechanical rejection of such request amounts to denial of reasonable opportunity to make an effective challenge to the order of detention. On that score also, the order of detention is liable to be set aside.
10. So far as the third contention of the learned counsel for the petitioner is concerned, as rightly contented by the learned counsel for the petitioner, though the detenu was sought to be produced on PT warrant in cases other than the case in which he was initially arrested, a copy of the petition filed by the police for issuance of PT warrant alone was produced and the order issuing such PT warrant was not produced. Non-furnishing of such order will amount to denial of a reasonable opportunity to the detenu to make an effective challenge to the order of detention at the earliest point of time.
11. So far as the contention of the learned counsel for the petitioner regarding the non-application of mind on the part of the Detaining Authority [fourth contention] is concerned, it is obvious from a comparison of the English version granting arrest warrant under Section 73 of the Code of Criminal Procedure and its Tamil version that there are material variations. The order granting arrest warrant under Section 73 of the Code of Criminal Procedure [English] is found at Page Nos.437 to 439 and its Tamil version is found at Page Nos.440 and 441 of the booklet. For better appreciation, the relevant paragraphs [unnumbered] found at Page Nos.438 and 439 are reproduced hereunder:-
"This Court has also gone through the decision reported in [AIR 1997 Supreme Court 2494, the State through CBI Vs. Dawood Ibrahim Kaskar and others]. From the perusal of the said decision, it has been held by the Apex Court that if it is established that if a person is evading arrest in respect of a heinous crime, a Magistrate is empowered to issue arrest warrant u/s73Cr.PC even at the stage of investigation.
In the present case, the respondent/accused is charged for the offences u/s.147, 148, 341, 427, 302, 120(b), 109 r/w 34 IPC. Moreover, in the present case, all the accused have been either surrendered or arrested by the police. It is only the present respondent/A1 is evading arrest even after the dismissal of anticipatory bail by the Honourable High Court From the above said facts elicited and from the materials perused coupled with the decision of Apex Court in [State through CBI Vs. Dawood Ibrahim Kaskar], this Court comes to the conclusion that it is a fit case to issue arrest warrant to the respondent/A1. Accordingly, this petition is allowed".
12. The corresponding paragraphs in Tamil translation found at Page No.441 are reproduced hereunder:-
",e;ePjpkd;wk; (VIMu;) 1997 cr;rePjpkd;wk; 2494) rpgpI vjpupil jht[j; ,;g;uh+pk; fhru; kw;Wk; kw;wtu;fs;) Kot[ mwpf;ifapd; Kyk; Twg;gl;l Kotpid ghu;f;fg;gl;L cr;rePjpkd;wj;jhy; Vw;fg;gl;lij bfhoa Fw;wj;jpypUe;J ifJ bra;ag;glhky; ,Ug;gtu; kPJ tprhuiz epiyapy; FtpKr r/gp 73d; fPH; ifJ thuz;l tHq;f mjpfhuk; cs;sJ. nkYk; jw;nghija tHf;fpy; kw;w midj;J vjpupfSk; ruzile;Js;sdu; my;yJ fhty; Jiwapduhy; ifJ bra;ag;gl;L tpl;Ltpl;ldu;. jw;nghija gpujpthjp/V1w;F nkjF cau;ePjpkd;wj;jpdhy; Kd;$hkPd; kD js;Sgo bra;ag;gl;l gpwFk; ifJ bra;ag;glhky; Vkhw;wp tUfpwhu;.
nkny Twg;gl;Ls;s cz;ikapypUe;Jk; kw;Wk; Mtzq;fs; cr;rePjpkd;w Kotpid (muRf;fh rpgpI vjpupapil jht{j; ,;g;uh+pk; fhru;) ,ize;J ghu;ifapy; ,e;ePjpkd;wk; gpujpthjp/V1w;F ifJ thuz;l; tHq;Fk; Kot[w;F te;Js;sJ. mjd;go ,e;j kD mDkjpf;fg;gLfpwJ".
13. The above highlighted portion in English and the omission of the same in Tamil translation, as rightly contented by the learned counsel for the petitioner, will show that certain particulars, namely penal provisions found at Page No.439 of the English version have been omitted in Tamil Version. The same will show non-application of mind and mechanical clamping of the order of detention by the Detaining Authority. Hence, on all the four grounds, the order of detention is liable to be set aside.
14. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the Order of Detention dated 17.11.2015, made in Detention Order No.156/BCDFGISSSV/2015, passed by the second respondent, the Commissioner of Police, Madurai City, Madurai and directs the release of the detenu, by name Pandi @ Attack Pandi, aged about 40 years, S/o.Ponnuchamy forthwith, if his continued custody is not authorised in specific cases or by any other detention order.
To
1.The Principal Secretary to Government, Home, Prohibition and Excise Department, Chennai 600 009.
2.The Commissioner of Police, Madurai City, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..