Madras High Court
Mr.K.R.Nath vs The Secretary To Government on 4 July, 2012
Bench: K.N.Basha, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.07.2012 C O R A M THE HONOURABLE Mr.JUSTICE K.N.BASHA and THE HONOURABLE Mr.JUSTICE P.DEVADASS HABEAS CORPUS PETITION NO.246 of 2012 Mr.K.R.Nath ... 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, Egmore, Chennai-600 008. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Habeas Corpus, to call for the records relating to the order of the first respondent in Order No.546 of 2011 dated 12.11.2011 and quash the same and direct the respondents to produce the petitioner's friend Vijayakumar, 42 years old, S/o.Lakshmanan, before this Court and set him at liberty, from Central Prison, Puzhal, Chennai. For Petitioner : Mr.A.Edwin Prabhakar For Respondents : Mr.K.P.Anantha Krishnan Additional Public Prosecutor - - - - - - O R D E R
P.DEVADASS, J., The petitioner, a friend of detenu Vijayakumar, who has been branded as a 'Goonda' and detained under Act No.14 of 1982 by the Commissioner of Police, Chennai, challenges the detention order dated 12.11.2011.
2. Among various grounds, one of the ground raised in the affidavit filed in support of the writ petition is that there is complete infraction of Section 8 of Act No.14 of 1982 and on account of that his friend has been prevented from making effective representation guaranteed to him under Article 22(5) of the Constitution of India.
3. The learned counsel for the petitioner contended that as per Section 8 of Act No.14 of 1982 within 5 days from the date of detention, the grounds of detention has to be served on the detenu. It is mandatory. However, the grounds of detention has not been served upon the detenu as mandated.
4. On the other hand, the learned Additional Public Prosecutor would submit that on 17.11.2011, since the detenu was taken to Madurai in connection with the some other case, the grounds of detention could not be served.
5. The learned Additional Public Prosecutor also placed the relevant file for our perusal.
6. We have anxiously considered the submissions of the learned counsels. Perused the materials placed before us and also the file.
7. It is apposite hereto to notice the provisions of Section 8 of the Act No.14 of 1982, which runs as under:-
"8. Grounds of order of detention to be disclosed to persons affected by the order:- (1) When a 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. (Emphasis supplied by us)
8. The said provisions of Section 8 (1) is simple, clear, unambiguous and admit of any difficulty in understanding it. It is couched in mandatory language. It is a statutory direction to the Executive, the Detaining Authority. So, no exception to be made to it. The idea is to enable the detenu to make effective representation, which has been constitutionally promised to him under Article 22 (5) of the Constitution of India.
9. In this case, the detention order has been passed on 12.11.2011. Admittedly, it was served on the detenu on 13.11.2011. As per the submissions of the learned Additional Public Prosecutor it is seen that the grounds of detention was served on him only on 20.11.2011. Now, calculating the 5 days contemplated in Section 8 (1) of the Act that is to say, from 13.11.2011, it ends on 17.11.2011. A perusal of the file produced by the learned Additional Public Prosecutor discloses that the grounds of detention itself has been sent to the Superintendent, Central Prison, Puzhal, for causing service upon him only on 18.11.2011; whereas the last date for service of the grounds of detention has expired on 17.11.2011 itself. Thus, it is a clear case of non-observation of the mandatory provision incorporated in Section 8 of the Act. On this ground alone the detention order is vulnerable and vitiated.
10. In the result, the Habeas Corpus Petition is allowed. The detention order dated 12.11.2011 is set aside. The Superintendent, Central Prison, Chennai, is directed to release the detenu from jail, if his further custody is no longer required in connection with any other case.
rrg To
1.The Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai-600 008.
2.The Superintendent, Central Prison, Puzhal, Chennai.
3.The Additional Public Prosecutor, High Court, Madras.
4.The Section Officer, Criminal Section, High Court, Madras