Madras High Court
Manikandan @ Thulasi Manikandan vs The Secretary To Government on 14 December, 2015
Bench: P.R.Shivakumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.12.2015
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
H.C.P(MD)No.1326 of 2015
Manikandan @ Thulasi Manikandan ...Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai 600 009.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Kanniyakumari District at Nagercoil.
3.The Superintendent of Prison,
Palayamkottai Central Prison,
Tirunelveli 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 Detention Order P.D.No.36 of
2015, dated 02.09.2015 and quash the same and direct the respondents to
produce the detenu namely Manikandan @ Thulasi Manikandan, S/o.Ganesan, aged
about 24 years, detained in Palayamkottai 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 detenu. He has been detained by the second respondent by his order in P.D.No.36 of 2015, dated 02.09.2015, 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.309 of 2015 registered on the file of Aralvoimozhy Police Station for offences punishable under Sections 294(b), 341, 427, 307 and 506(ii) of the Indian Penal Code and the following one adverse case:-
(i). Crime No.155 of 2015 registered on the file of Aralvoimozhy Police Station for offences punishable under Sections 147, 148, 149, 341, 294(b), 323, 307 and 302 of the Indian Penal Code.
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 peace and 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 has been assailed on a number of grounds, the learned counsel for the petitioner, without adverting to the other grounds, mainly relies on the contention that there was a violation of the conditions stipulated in Section 8 of the Act 14 of 1982 insofar as the relevant and relied on materials were not supplied along with the grounds of detention and they came to be supplied to the detenu in the form of a booklet not within five days as contemplated in the said provision, but after five days.
4. The submissions made by the learned Additional Public Prosecutor in reply to the above said contention raised by the learned counsel for the petitioner are also heard.
5. Section 8 of the Act 14 of 1982 reads as follows:-
"8. Grounds of order of detention to be disclosed to persons affected by the order.- (1) When an person is detained in pursuance of a detention order, the Authority making the order shall, as soon as may be, but not later than five days from the date of detention communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.
(2) Nothing in sub-section (1) shall require the Authority to disclose facts which it considers to be against the public interest to disclose".
6. Though the provision does not directly state that the relied on and the relevant materials should be furnished within the time stipulated in clause 1 of Section 8 of the Act 14 of 1982, in a number of cases, not only by the High Court but also by the Hon'ble Supreme Court, it has been held that the non-furnishing of the materials based on which the order came to be passed would amount to denial of a reasonable opportunity to make an effective representation against such order to the Government. It shall not be necessary to cite all those Judgments. Suffice to point out that in Malleshwari Vs State of Tamil Nadu reported in 2011 (1) MLJ (Cr) 513, such a view was expressed by the Hon'ble Supreme Court and that our High Court in Mageswari Vs. The Government of Tamil Nadu, reported in 2011 (1) MWN [Cr] 599, of which one of us [P.R.SHIVAKUMAR] was a party, followed the same. In Mageswari's case in Paragraph No.7, it has been held as follows:-
"Of course, the language of Section 8(1) does not refer to the supply of copies of the documents along with the grounds of detention. It simply refers to the communication to the detenu of the grounds on which the order of detention has been made. But, however, it was superadded with the rider specifying the purpose for which the grounds are to be communicated. The purpose enshrined therein is to afford the detenu the earliest opportunity of making an effective representation against the order of detention to the Government. The mere supply of the ground of detention unaccompanied by copies of the materials relied on the Detaining Authority, is of no use for the purpose of making an effective representation, at the earliest opportunity, against the order of detention. Therefore, we are of the view that the supply of copies of materials relied on along with the grounds of detention is also the requirement of the said provision to enable the detenu to make an effective representation at the earliest point of time. In other words, the supply of ground of detention as contemplated in Section 8(1) will include the supply of the copies of the relied on documents also and this view will also be strengthened by the fact that the abstract order of detention could not have been passed even before preparing the grounds of detention stating the reasons".
7. The above said Judgments will show that the non-furnishing of the relevant materials, especially the relied on materials, within the time contemplated under sub-section 1 of Section 8 of the Act 14 of 1982 will vitiate the order, as the same will amount to denial of earliest opportunity to the detenu to make an effective representation against the order of detention to the Government. In this case, though the order and the grounds of detention were served on the detenu on 03.09.2015, the booklet containing the copies of the relied on materials came to be supplied only on 09.09.2015, viz., beyond the period of five days from the date of order of detention.
8. The learned Additional Public Prosecutor, relying on a Judgment of the Madras High Court in Andal & another vs. District Magistrate and District Collector, Thiruvanamalai District, reported in 2008 (i) MLJ [Cr] 416, made a meek attempt to contend that in the ordinary circumstances, copies of such documents shall be supplied not later than five days and in extra-ordinary circumstances, it can be supplied to the detenu not later than ten days.
9. The said contention cannot be countenanced, because the said provision was made with reference to a similar section in the other enactment, namely Section 8 of the National Security Act, 1980, which reads as follows:-
"When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose".
As such, a specific provision has been made in the National Security Act, 1980. The Court in Andal's case held so. But, the same cannot be imported to and read with Act 14 of 1982 where the maximum time limit prescribed is only five days from the date of detention. Without considering the difference between the two provisions, such a contention came to be made by the learned Additional Public Prosecutor and the said contention is rejected as untenable. Hence, as rightly contended by the learned counsel for the petitioner, there is denial of reasonable opportunity and on that ground, the order of detention is liable to be set aside.
10. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the Order of Detention dated 02.09.2015, made in P.D.No.36/2015, passed by the second respondent, the District Collector and District Magistrate, Kanniyakumai District at Nagercoil and directs the release of the detenu, by name Manikandan @ Thulasi Manikandan aged about 24 years, S/o.Ganesan 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 District Collector and District Magistrate, Office of the District Collector and District Magistrate, Kanniyakumari District at Nagercoil.
3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..