Madras High Court
Vinod @ Poothar vs State Of Tamil Nadu 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.249 of 2012 Vinod @ Poothar ... Petitioner Vs 1.State of Tamil Nadu, Rep. By Secretary of State, Prohibition & Excise Department, St. George Fort, Chennai-600 009. 2.The Commissioner of Police, Chennai 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 entire records relating to the detention of petitioner as Goondas confined in Central Prison, Chennai vide the order of the 2nd respondent in memo No.796/BDF/GISSV/2011, dated 27.12.2011 and quash the same as illegal and set the petitioner at liberty. For Petitioner : Mr.T.I.Ramanathan For Respondents : Mr.K.P.Anantha Krishnan Additional Public Prosecutor - - - - - - J U D G M E N T
P.DEVADASS, J., The petitioner, who has been branded as a 'Goonda' and detained under Act No.14 of 1982 by the Commissioner of Police, Chennai, challenges his detention order dated 27.12.2011.
2. Among various grounds, one of the ground raised by him 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 he 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. The respondents in their counter denied this allegation. We have heard the learned Additional Public Prosecutor.
5. We have anxiously considered the submissions of the learned counsels. Perused the materials placed before us.
6. 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)
7. 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.
8. In this case, the detention order has been passed on 27.12.2011. It was served on him on 28.12.2011. Now, calculating the 5 days contemplated in Section 8 of Act No.14 of 1982, that is to say, from 28.12.2011, it ends on 01.01.2012. So, grounds of detention should be served him by 01.01.2012. Admittedly, it was served on the detenu only on 02.01.2012. Thus, it is a clear case of non-observation of the mandatory provision incorporated in Section 8 of Act No.14 of 1982. On this ground alone the detention order is vulnerable and vitiated.
9. In the result, the Habeas Corpus Petition is allowed. The detention order dated 27.12.2011 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 Inspector of Police, No.J-11, Kannagi Nagar Police Station, Chennai-600 097.
4.The Additional Public Prosecutor, High Court, Madras.
5.The Section Officer, Criminal Section, High Court, Madras