Madras High Court
R.Sakunthala vs The State Of Tamil Nadu on 19 August, 2015
Author: S.Tamilvanan
Bench: S.Tamilvanan, C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 19.08.2015
CORAM:
THE HONOURABLE DR.JUSTICE S.TAMILVANAN
AND
THE HONOURABLE MR.JUSTICE C.T.SELVAM
H.C.P.No.1282/2015
R.Sakunthala .. Petitioner
Vs
1.The State of Tamil Nadu,
rep. by the Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Collector,
Office of the District Collector,
Villupuram District.
3.The Superintendent,
Central Prison,
Cuddalore District.
4.The Inspector of Police,
Prohibition Enforcement Wing,
Kallakurichi, Villupuram District. .. Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Habeas Corpus calling for the records relating to the second respondent pertaining to the detention order made in C2/8278/2015 dated 28.04.2015 in detaining the detenu under Tamil Nadu Act 14/1982 as Bootlegger and to quash the same and further direct the respondents to produce the petitioner's husband Rajiv Gandhi, S/o.Kaliyan, aged about 25 years, now detained in Central Prison, Cuddalore before this Court and to set him at liberty.
For Petitioner : Mr.P.Saravanan
For Respondents : Mr.M.Maharaja
Additional Public Prosecutor
ORDER
(Order of the Court was made by S.TAMILVANAN,J.) Challenge is made to the order of detention passed by the second respondent vide Proceedings C2/8278/2015 dated 28.04.2015, whereby the detenu/husband of the petitioner, by name, Rajiv Gandhi, S/o.Kaliyan, aged about 25 years, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "Bootlegger.
2.Though many grounds have been raised in the petition, Mr.P.Saravanan, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of non-supply of copy of the bail application in the similar case, referred to in the grounds of detention, for arriving at the subjective satisfaction that there is likelihood of the detenu coming out on bail, which has affected the constitutional right of making an effective and purposeful representation to the authorities concerned, thereby vitiating the detention.
3.Per contra, Mr.M.Maharaja, the learned Additional Public Prosecutor would submit that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. However, he submitted that the copy of the bail application in the similar case, referred to in the grounds of detention was not supplied to the detenu.
4.We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and thoroughly scanned through the impugned detention order and the entire materials available on record.
5.It is seen from paragraph No.5 of the Grounds of Detention that in the similar case, the accused Elumalai, son of Annamalai, was released on bail by the learned Sessions Judge, Villupuram in Crl.MP.No.1599/2015 dated 17.03.2015 for the offence under Sections 4(1-A), 4(1)(a), 4(1)(g) TNP Act in Cr.No.80/2015 on the file of Kallakurichi Prohibition Enforcement Wing. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain the copy of the said bail application in similar case and only the respective bail order was furnished to the detenu in page Nos.39 and 40 [in English version and in Vernacular version] in the Booklet placed before us. The said bail application filed in the similar case was the document relied upon by the Detaining Authority to come to a subjective satisfaction that the detenu was likely to be released on bail. Admittedly, such documents have not been supplied to the detenu, as it did not form part of the Paper Book furnished by the Prosecution. Therefore, non supply of the copy of the bail application in the similar case to the detenu would vitiate the impugned detention order.
6.The Honourable Supreme Court in M.Ahamed Kutty Vs. Union of India and another (1990-2-SCC-1) has observed thus:-
7. Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case. (Emphasis added).
7. This Court in Jarinabegam Vs. State of Tamil Nadu by Secretary to Government, Prohibition and Exercise Department, Chennai and another (2007-1-MLJ-Crl-18) relying upon the decision of the Honourable Supreme Court cited supra has held that non supply of the copy of the bail application in the similar case to the detenu has the effect of vitiating the order or detention.
8. As already analysed by us, in the facts and circumstances of the present case, non-supply of the copy of the bail application in the similar case, to the detenu has the effect of vitiating the impugned detention order. Further, due to non-supply of such a vital document, the detenu has lost valuable right to make an effective representation to the authorities concerned.
S.TAMILVANAN, J.
AND C.T.SELVAM, J.
vga
9. In the light of the above said principles laid down by the Honourable Supreme Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed.
10.In the result, this Habeas Corpus Petition is allowed. The impugned detention order is set aside. The detenu is directed to be released forthwith, unless his presence is required in connection with any other case.
[S.T.J.] [ C.T.S.J.]
19.08.2015
vga
To
1.The State of Tamil Nadu,
rep. by the Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Collector,
Office of the District Collector,
Villupuram District.
3.The Superintendent,
Central Prison,
Cuddalore District.
4.The Inspector of Police,
Prohibition Enforcement Wing,
Kallakurichi, Villupuram District.
5.The Public Prosecutor, High Court, Chennai.
6.The Superintendent of Central Prison,
Cuddalore.
HCP.No.1282/2015