Madras High Court
S.Duraisami vs The State Of Tamil Nadu on 26 September, 2007
Bench: P.K.Misra, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/09/2007 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR H.C.P.(MD).No.285 of 2007 S.Duraisami ... Petitioner Vs 1.The State of Tamil Nadu Represented by Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 2.The Commissioner of Police, Madurai City. ... Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Habeas Corpus, to call for the entire records connected with the detention order of the respondent No.2 in No.8/BDFGISSV/2007 dated 08.03.2007 and quash the same and direct the respondents to produce the body and person of the petitioner's son Udhayan @ Udhayaraja aged 29 years son of Duraisamy Thevar now confined at Madurai Central Prison before this Court and set him at liberty forthwith. !For Petitioner ... Mr.R.Alagumani ^For Respondents ... Mr.S.P.Samuelraj Additional Public Prosecutor :ORDER
(Order of the Court was made by P.R.SHIVAKUMAR, J) The detenu, by name Udhayan @ Udhayaraja, son of the writ petitioner has been detained by an order dated 08.03.2007 of the Commissioner of Police, Madurai City, the second respondent herein, in his proceedings No.8/BDFGISSV/2007, on the allegation that he is a Goonda. The father of the detenu has filed this habeas corpus petition under Article 226 of the Constitution of India, challenging the above order of detention.
2. We have heard the arguments advanced by Mr.R.Alagumani, learned counsel appearing for the petitioner and also by Mr.S.P.Samuel Raj, learned Additional Public Prosecutor appearing for the respondents and perused the materials available on record.
3. Citing two adverse cases and a ground case, the detention order was passed by the second respondent in exercise of the powers conferred on him under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Boot- leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). Therein the detenu has been described to be a Goonda. The two adverse cases registered against the detenu are (i) Crime No.1226/2005 registered on the file of B-11 Karimedu Police Station, Madurai for alleged offences punishable under Sections 397 and 506(ii) IPC and (ii) Crime No.2403/2005 registered on the file of the very same police station for alleged offences punishable under Sections 387 and 506(ii) IPC. The ground case is Crime No.371/2007 registered on the file of C-5 Karimedu Police Station for alleged offences punishable under Sections 397 and 506(ii) IPC. The order of detention has been approved by the Government of Tamil Nadu on 16.03.2007 vide G.O.No.690/Home, Prohibition and Excise (ix).
4. Even though several grounds have been raised in the habeas corpus petition against the order of detention, at the time of hearing, the learned counsel for the petitioner, without pressing all other grounds, confined his arguments with regard to two grounds alone. They are: (i) There was avoidable delay in considering the representation made by the petitioner on behalf of the detenu; and (2) There was denial of reasonable opportunity to the petitioner to make an effective representation on behalf of the detenu against the order of detention and for the revocation of the same.
5. From the counter-statement and the proforma submitted on behalf of the respondents, we are able to find out that there was a delay in putting up the file and submitting the same for the consideration of the Advisory Board. The remarks on the representation dated 25.06.2007 made by the petitioner was admittedly received on 06.07.2007. But, there was a delay of 5 days in submitting the file for the consideration of the Advisory Board. The respondents have not come forward with any kind of explanation for the above said delay. Therefore, we are satisfied that the petitioner has made out a case that there has been an avoidable delay in considering the representation made by the petitioner on behalf of the detenu for the revocation of the detention order.
6. So far as the next contention is concerned, the petitioner had made a request in his representation that he should be furnished with the copies of the following documents: (i) a copy of the G.O.(D).No.9, Home, Prohibition and Excise (xvi) Department dated 18.01.2007; (ii) a copy of the rough sketch prepared by the Investigating Officer in the ground case, namely Crime No.371/2007; and (iii) a copy of the original complaint given by the de facto complainant in the ground case. However, the learned counsel for the petitioner has chosen not to advance any argument on the ground that the failure to supply a copy of the G.O.(D).No.9, Home, Prohibition and Excise (xvi) Department dated 18.01.2007, did in fact cause prejudice to the petitioner. As revealed from the copy of the representation, the petitioner had made the request for supply of a copy of the above said G.O. in order to ascertain whether the notification under Section 3(2) of the Act stood extended for the concerned area during the relevant period. Perhaps, subsequently the petitioner might have come across the G.O. and satisfied with the fact that the notification under Section 3(2) of the Act had been extended for the relevant area covering the period during which the order of detention was passed and that is why the learned counsel for the petitioner avoided making any reference to the above said ground in his argument.
7. On the other ground, the learned counsel for the petitioner put forward a vehement argument that the non-supply of the copies of the other two documents, namely rough sketch prepared by the Investigating Officer in the ground case and the original complaint of the de facto complainant in the ground case, did definitely cause prejudice to the detenu, as the same amounted to denial of reasonable opportunity to make an effective representation against the detention order.
8. On the other hand, the learned Additional Public Prosecutor would contend that those documents are not documents relied on by the Detaining Authority but they were only documents referred to by the Detaining Authority and that the respondents are obliged to supply copies of the documents relied on and not the documents referred to. The learned Additional Public Prosecutor argued that out of the two documents, the rough sketch prepared by the Investigating Officer in the ground case could not be stated to be a relevant one and that the demand for the supply of copy of the original complaint was misconceived because the printed First Information Report contains verbatim the entire text of the complaint and the documents supplied along with the grounds of detention to the detenu include a copy of the First Information Report prepared in the printed form in the ground case.
9. On the other hand, the learned counsel for the petitioner would contend that since the allegation against the detenu was that his act caused traffic congestion and made the shop keepers to close their shops and the public ran away from the place of occurrence, the supply of a copy of the rough sketch prepared by the Investigating Officer was very much relevant. So far as the original complaint is concerned, it is the contention of the learned counsel for the petitioner that the supply of a xerox copy of the original complaint would enable the petitioner to find out whether there is any correction or interpolation in the original complaint. In the light of the above said submission made by the learned counsel for the petitioner, we do not think that the above said documents could be termed entirely irrelevant. Hence, we are inclined to accept the contention of the learned counsel for the petitioner that the request made in the representation made by the petitioner was for the supply of relevant documents only and not irrelevant documents.
10. The learned counsel for the petitioner relied on the observation made by the Honourable Supreme Court in Kirit Kumar Chaman Lal Kundaliya v. Union of India reported in [1981(2) SCC 437]. In support of his contention that the Detaining Authority is duty bound to supply copies of the documents either relied on or referred to in the grounds of detention. Our attention has been drawn to a still recent judgment of the Supreme Court in POWANNAMMAL V. STATE OF TAMIL NADU & OTHERS reported in 1999 SCC (Crl) 231 which was followed by another Division Bench of this Court in "Saravanan vs. The Secretary, Government of Tamil Nadu, Prohibition and Excise Department, Fort St.George, Chennai-9 and another" in H.C.P.No.219 of 2007. The Division Bench of this Court in the above said habeas corpus petition has made the following observations:
"Law is now well settled that where a document is a relied upon document in the grounds of detention, the detaining authority is required to furnish copy of such relied upon document to the detenu and the order of detention becomes invalid, if such document is not furnished. (See 1999 SCC (Crl) 231 (POWANNAMMAL V. STATE OF TAMIL NADU & OTHERS). Where a document is not relied upon document, but merely referred to, non-supply of such document does not have the ipso facto effect of making the order of detention vulnerable. However, if the detenu request for supply of such documents, which have been referred to, ordinarily such documents are to be supplied and at any rate such request should not be rejected mechanically. Similarly, where a document is neither relied upon nor referred to any yet the detenu makes a representation for supply of such document, such request should not be mechanically rejected unless on the face of it such a document is entirely irrelevant from the point of view of making representation.
Even if the document is not relevant for the purpose of detention, but if the detenu considers it relevant for the purpose of his defence and asks for the same, it has to be supplied to him. In this case, detenu has asked for Para Register, Food Distribution Register and Prisoner's Search Register. But his representation was mechanically rejected by the Government and the detention order is liable to be quashed. In H.C.P.No.1844/1999, a Division Bench of this Court has quashed the detention order on the same ground of non-furnishing of Lock up Register, Food Distribution Register and Prisoner's Register where the detenu has taken a specific plea that he was in illegal custody. In such view of clear position, we find that the detention order is liable to be quashed."
11. From the above said excerpts made from the judgment of the Division Bench in H.C.P.No.219/2007, it is quite clear that the non-supply of copy of a document not relied on by the Detaining Authority but merely referred to in the grounds of detention does not ipso facto vitiate the detention order. However, if a request for the supply of copies of such documents are made, the mechanical rejection of the same without assigning any reasons will amount to denial of reasonable opportunity to make effective representation. Even in respect of a document neither relied on nor referred to in the grounds of detention, if a representation is made on behalf of the detenu for supply of a copy of such document, unless the documents are totally irrelevant, rejection of such a request, will definitely amount to denial of a reasonable opportunity. The observations made by the earlier Division Bench in H.C.P.No.219/2007 squarely apply to the facts of the case on hand in respect of non-supply of copies of the above cited documents.
12. Following the above said judgment of the earlier Division Bench of this Court, we hold that there is also denial of opportunity to make an effective representation for the revocation of the impugned detention order and that such a denial of opportunity vitiates the detention order itself. Therefore, we are inclined to quash the impugned detention order passed by the second respondent dated 08.03.2007 in No.8/BDFGISSV/2007.
13. In the result, this Habeas Corpus Petition is allowed and the detention order passed by the second respondent in No.8/BDFGISSV/2007, dated 08.03.2007 is hereby quashed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.
SML To
1.The Secretary to Government of Tamil Nadu, The State of Tamil Nadu Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009.
2.The Commissioner of Police, Madurai City.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.