Madras High Court
John vs The State Rep By on 18 August, 2014
Bench: S.Manikumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.08.2014
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
H.C.P.(MD) No.444 of 2014
John .. Petitioner
versus
1.The State rep by
The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-9.
2.The Commissioner of Police,
Office of the Commissioner of Police,
Madurai.
3.The Superintendent of Police,
Madurai Central Prison,
Madurai. .. Respondents
Petition filed under Article 226 of the Constitution for the issuance
of a Writ of Habeas Corpus directing the respondents to call for the entire
records connected with the detention order in No.18/BDFGISSV/2014 dated
04.04.2014 passed by the 2nd respondent and quash the same as illegal and
direct the respondents to produce the detenu by name John, son of Paulraj,
aged about 23 years being detained at Madurai Central Prison before this
Hon'ble Court and set him at liberty forthwith.
!For petitioner : Mr.R.Alagumani
^For respondents : Mr.C.Ramesh
Addl. Public Prosecutor
:ORDER
(Order of the Court is delivered by S. MANIKUMAR) The detenu, John, branded as Goonda, lodged in Madurai Central Prison, by order in No.18/BDFGISSV/2014, dated 04.04.2014, passed by the Commissioner of Police, Madurai City, Madurai, 2nd respondent, under Section 3(2) 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) (hereinafter referred to as ?the Act?), has sought for a Writ of Habeus Corpus.
2.Though the petitioner has raised several grounds, inviting the attention of this Court to the grounds of detention that when the detenu was informed that he is entitled to be heard in person, before the Advisory Board and when he was permitted to have the assistance of his friend/relative, if he so desires, at the time of personal hearing of the Advisory Board and that when he has to make his own arrangement to get a friend/relative to be present, at the time of personal hearing of the Advisory Board, Mr.Alagumani, learned counsel for the petitioner submitted that in the light of the above, it is imperative on the part of the authorities that the detenu should be given adequate time to contact his friend or relative, make his own arrangements to get his friend/relative, to be present, at the time of personal hearing of the Advisory Board and that such friend/relative should have sufficient time, to assist the detenu in presenting his case before the State Advisory Board, and if the time given is not adequate or sufficient, then the Constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India, to make an effective representation before the Advisory Board, would be infringed, and in such circumstances, the detention order is liable to be set aside.
3.Inviting the attention of this Court to Letter No.6079, Home, Prohibition, Excise (IX) Department, dated 07.05.2014 of the Deputy Secretary to the Government, Chennai, in particular, to the time and date of service of the said letter to the detenu, through the Additional Superintendent, Central Prison, Madurai, Mr.Alagumani, learned counsel for the petitioner further submitted that when the Advisory Board at Chennai, proposed to have a personal hearing of the detenu on 12.05.2014 at 12.00 P.M., the detenu was informed only on 09.05.2014 at 13.50 Hours. In between 09.05.2014 and 12.05.2014, there were three days. 09.05.2014 was a Friday. 10.05.2014 and 11.05.2014 happened to be Saturday and Sunday. At early hours, on 11.05.2014, Sunday, the detenu was taken to Chennai.
4.Learned counsel for the petitioner further submitted that the visitors are not allowed to meet the persons detained under detention laws, on Fridays and Saturdays. He therefore submitted that the detenu did not have sufficient time to contact his friend/relative on Friday, and discuss the matter with him, with the materials supplied, for the proposed personal hearing scheduled on 12.05.2014, at 12.00 P.M., at Chennai. He therefore submitted that the right provided to the detenu, to have the assistance of his friend/relative, at the time of personal hearing, before the Advisory Board, was thus denied and on this sole ground itself, the impugned order of detention is liable to be set aside. Reliance was also placed on the decisions of the Hon'ble Division Bench of this Court made in Dharman v. The State of Tamil Nadu reported in 2002 (1) CTC 477 and followed in HCP.No.996 of 2011, dated 12.01.2012 [K.Mayilammal v. State of Tamil Nadu]. For the abovesaid reasons, he prayed to set aside the order of detention.
5.Per contra, based on the counter affidavit, Mr.C.Ramesh, learned Additional Public Prosecutor, submitted that vide impugned order, dated 04.04.2014, the Detaining Authority has already informed the detenu that he can have the assistance of his friend/relative, during the personal hearing of the Advisory Board and that therefore, no sooner, he was served with the grounds of detention and booklet, the detenu could have very well contacted his friend or relative, furnished him with the entire materials or discussed the matter, with such friend or relative. He further submitted that if the detenu had intended to avail the assistance of any such friend or relative, he could have made the arrangements, well in advance, before the date scheduled for personal hearing, before the Advisory Board.
6.Inviting the attention of this Court to the confessional statement of the detenu in Madurai City K.Pudur Police Station Crime No.191/2012, under Sections, 457 and 380 IPC, learned Additional Public Prosecutor submitted that when the detenu himself has admitted that his brother has studied M.Com, the representation made before the Advisory Board that he has no educated person, in the family is a false statement.
7.Placing reliance on G.O.Ms.No.524, Home, Prohibition, Excise (IX) Department, dated 16.09.2011, learned Additional Public Prosecutor further submitted that the Government have issued orders, sanctioning a huge sum towards the purchase and installation of 54 numbers of Telephone Booths, with accessories to all the Central Prisons, Special Prisons for Women and Borstal School, Pudukottai and when such telephone facility is already available in the Central Prison, Madurai City, the contention that the petitioner was not given adequate time to contact his friend/relative and make his own arrangements to get his friend/relative, to be present, at the time of personal hearing of the Advisory Board, should not be accepted.
8.According to the learned Additional Public Prosecutor, sufficient time has been given to the detenu. The representation, dated 16.04.2012, submitted before the Advisory Board, on 12.05.2014, was received by the detaining authority only on 21.05.2014, and that remarks were sent to the Government on 22.05.2014, without any delay. He submitted that the antecedents of the detenu, required detention.
9.Placing reliance on the judgment in Vijay Kumar v. Union of India reported in 1988(2) SCC 57, learned Additional Public Prosecutor submitted that even taking it for granted that the time given to the detenu was not sufficient, to make an effective representation with the assistance of his friend or relative, the detenu could have sought for an adjournment, before the Advisory Board. In the absence of any request made by him, to the Advisory Board, the Prosecutor submitted that there is no violation of principles of natural justice.
10.Attention was also invited to paragraph 21 of the judgment made in Sharad Kumar Tyagi v. State of Uttar Pradesh reported in AIR 1989 SC 764, wherein, the Apex Court has observed that when the detenu did not choose to represent to the Advisory Board that he was not given sufficient time, to secure the services of his friend, then it should be construed that he has failed to avail the opportunity, and for his lapse, detention order cannot be quashed. He further submitted that both the decisions made in Vijay Kumar's case (stated supra) and Vijay Kumar's case (stated supra), were not placed before the Hon'ble Division Benches of this Court in, Dharman v. The State of Tamil Nadu reported in 2002 (1) CTC 477 and HCP.No.996 of 2011, dated 12.01.2012 [K.Mayilammal v. State of Tamil Nadu]. For the reasons, stated supra, he prayed for dismissal of the petition.
Heard the learned counsel for the petitioner and perused the materials available on record.
11. While adverting to the limited challenge, this Court deems it fit to have a cursory look, at the provisions, relating to the reference to the Advisory Board, Procedure followed by the Advisory Board and the action, upon report of Advisory Board. Sections 10, 11 and 12 of the Act, as follows:
?10. In every case where a detention order has been made under this Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them, under Section 9, the grounds on which the orders has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under sub-Section (3) of Section 3.
11.(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the State Government or from any person called for the purpose through State Government or from the person concerned and if, in any particular case, the Advisory Board considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the State Government, within seven weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.
(3) When there is a difference of opinion among the members forming the advisory board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
(4) The proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
(5) Nothing in this Section shall entitle any person whom a detention order has been made to appear by any legal practitioner in any matter concerned with reference to Advisory Board.
12. (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Section 13, as they think fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause, for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith.?
12.As per the grounds of detention, two things are clear, viz., (1) The detenu has right to make a representation to the Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai, through the Superintendent of Central Prison concerned, (2) The detenu has right to make a representation to the Chairman, Advisory Board, through the Superintendent of Prisons concerned, whereat, he is detained. Any representation made by him, to the Government, should be placed before the Advisory Board, along with his case details, for consideration, under Section 10 of the Act.
13.As per Section 11 of the Act, the detenu is entitled to be heard. In the case on hand, reiterating the statutory provisions, in the grounds of detention, the Detaining Authority has informed the detenu that he is entitled to be heard in person, before the Advisory Board. The detenu has also been instructed to intimate to the Secretary to the Government, Home, Prohibition and Excise Department, Chennai, specifically in writing, as expeditiously as possible, as to whether he is desirous to be heard in person, by the Advisory Board or not. The detenu has been permitted to avail the assistance of his friend or relative, at the time of personal hearing before the Advisory Board, provided that his friend or relative, is not an Advocate and that the detenu has to make his own arrangements to get his friend or relative to be present, at the time of personal hearing before the Advisory Board.
14.At this juncture, from the material on record, let us consider, as to when the detenu was informed about his personal appearance, before the Advisory Board, at Chennai. By letter, dated 07.05.2014, of the Deputy Secretary to the Government, Home, Prohibition and Excise (IX) Department, Chennai-9, an intimation has been given to the detenu and that the said intimation is stated to have been read over, explained. The letter, dated 07.05.2014, has been served on the detenu on 09.05.2014 at 13.50 Hours, by the Additional Superintendent of Police, Central Prison, Madurai. As attention of this Court was invited to the telephonic facilities provided to the prisoners to contact a friend or relative, we wish to reproduce the same. ABSTRACT Prisons Introduction of Telephone Facility for the use of prisoners in Prisons ? Administrative and financial sanction for a sum of Rs.158.00 lakhs towards purchase and installation of 54 numbers of Telephone Booths with the accessories to all Central Prisons, Special Prison for Women and Borstal School, Pudukottai through M/s.ELCOT ? Sanctioned ? Orders ? Issued.
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Home(Prl.III) Department G.O.(Ms.)No.524 Dated : 16.09.2011 Read :
1.From the Additional Director General of Police/ Inspector General of Prisons,letter No.21821/ PW1/2007, dated 25.02.2011.
2.From the Additional Director General of Police/ Inspector General of Prisons,letter No.21821/ PW1/2007, dated 26.04.2011.
****** ORDER The Additional Director General of Police / Inspector General of Prisons in his letter second read above has stated that in order to implement the Telephone facilities to the prisoners without compromising the security of the prison, it is felt necessary to adopt certain safeguards like monitoring, regulation and recording of outgoing calls tgo be make by prisoners etc. Hence, it is desirable to implement this scheme through ELCOT as they have technical expertise in the field, competent to prepare detailed project report arrange for the purchase of proper equipments and arrange for technical assistances to attend the technical problems that may arise during the course of its usage since Prison Department does not have technical persons to oversee the implementation of this scheme. Further he has stated that the Madurai Bench of Madras High Court directed in its orders dated 1.3.2011 in W.P(MD)No.6505/2010 has directed the respondents to expedite the said process and decide the issue regarding provision of telephone facilities to the welfare of the prisoners in all the prisons throughout the State of Tamil Nadu within a period of Six Months from the date of receipt of a copy of this order. Therefore, he has requested the Government to accord administration and financial sanction towards installation of 54 Numbers of Telephone Booths with accessories to all the Central Prisons, Special Prisons for Women and Borstal School, Pudukottai as detailed below at a total cost of Rs.158.00 lakhs through M/s.ELCOT, Chennai in the first instance.
Sl.No. Name of the Prison No. of Telephone Booth proposed 1 Central Prison-I, Puzhal.
2 2Central Prison-II, Puzhal.
6 3Central Prison, Vellore.
7 4Central Prison, Cuddalore.
3 5Central Prison, Trichy.
8 6Central Prison, Salem.
5 7Central Prison, Coimbatore.
8 8Central Prison, Madurai.
5 9Central Prison, Palayamkottai.
6 10Special Prison for Women, Puzhal.
1 11Special Prison for Women, Vellore.
1 12Special Prison for Women, Trichy.
1 13Borstal School, Pudukottai.
1Total 54 He has also stated that, this scheme may be extended to all the District Jails and Sub-Jails after successful implementation of this scheme in the above prisons.
2. The guidelines prescribed by Additional Director General of Police / Inspector General of Prisons to allow the prisoners to have this facility are as follows:-
a.All prisoners can avail outgoing telephone facility to contact their family members/friends and their advocates within the Country subject to security surveillance.
b.Any 3 telephone numbers with details to be furnished at the time of admission itself.
c.Maximum Call time 30 minutes per month ? call duration is 10 minutes ? Once in 10 days one call ? maximum 3 calls (including any one Sunday). d.The timings between is 8.00 a.m. to 4.00 p.m. e.The amount of buying telephone cards will be deducted from the Prisoners Cash Property from the concerned. The expenditure will be excluded in the ceiling amount of Prisoners Cash Property amount. f.The balance of calls not used during that month if any will not be carried out to next month.
g.The prisoner cannot claim this facility as a matter of right per month.
h.The classification, segregation and individual identification of prisoners under allotment of different machines and modalities will be worked out by the concerned Superintendent.
I.If the prisoner, found got any prison punishment, he will not be allowed to avail this facility till the punishment period is over. j.If any prisoner, found to be indulging any illegal activity by using this facility, will be barred once for all to use this facility apart from initiating necessary criminal action.
k.The Superintendent of Prisons shall have the discretionary powers to permit and debar any prisoner from using this facility in the interest of security and prison administration.
3. One of the decision points taken during the review meeting by the Hon'ble Chief Minister on 30.6.2011. The decision point dealt is reproduced below:-
'Prisoners will be given access to telephones after making a study of the system in vogue in other States.?
While moving Demand for grants No.24, Prison Department on the floor of the Assembly on 07.09.2011, the Hon'ble Minister (Information, Law, Courts and Prisons) has announced among other things as follows:-
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4. The Government have examined the proposal of the Additional Director General of Police / Inspector General of Prisons in detail and decided to accept the proposal of the Additional Director General of Police / Inspector General of Prisons. Accordingly, the Government sanction a sum of Rs.1,58,00,000/- (Rupees One crore and fifty eight lakhs only) towards purchase and installation of 54 Numbers of Telephone Booths with accessories to all Central Prisons viz., Puzhal-I and II Vellore, Cuddalore, Trichy, Salem, Coimbatore, Madurai, Palayamkottai, Special Prison for Women, Puzhal, Vellore and Trichy and Borstal School, Pudukottai as indicated in para 1 above through M/s.ELCOT, Chennai subject to the following conditions:-
I. Standard operating system be generated for recording of calls and following are to be implemented:-
a.The delete facility should be only with administrator and should feature in logs.
b.The recording software should log all attempts to copy / transfer the audio files. The same should be disabled.
c.The data should be in password protected files / folders and accessible only to the administrator to be seen in file format. They should be accessible to the user only through the recording software. d.Archiving of data / destructing of data be supervised and definite time frames be devised.
II. Intelligence Wing of Criminal Investigation Department has to be allowed to access to the recording software in situ with proper authentication.
5.The expenditure sanctioned in para 4 above shall be debited to the following head of account:-
?2056-00-Jails-101 Jails ? I Non Plan AA- Jails (Other than Sub Jails) 19-Machinery and Equipments - 01 Purchase (DPC : 2056-00-001-AA-1916)?
6.The expenditure sanctioned in para 4 above constitutes an item of ?New Service? and the approval of the Legislature will be obtained in due course. Pending approval of the legislature, the expenditure will be initially met by an advance from Contingency Fund of the State Government and orders in this regard will be issued by the Government in Finance (BG.I) Department separately. The Additional Director General of Police / Inspector General of Prisons is requested to apply for drawal of advance from the Contingency Fund in the prescribed form along with copy of this order. He is also requested to send necessary explanatory note to Government in Finance (BG.I / Home.II) Department for inclusion of the above amount in the Supplementary Estimates at the appropriate time.
7.This orders issued with the concurrence of Finance Department vide its U.O.No.45799/Home ? II/2011 Dated 13.09.2011. Additional Sanction Ledger No.531 [Five Hundred and Thirty One].
(BY ORDER OF THE GOVERNOR) RAMESHRAM MISHRA PRINCIPAL SECRETARY TO GOVERNMENT
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15.Right of representation to the detenu is a procedural safeguard, under Article 22(5) of the Constitution of India. Dealing with the procedure, affecting the right to life, it is worthwhile to consider a passage from the landmark judgment of the Hon'ble Supreme Court in Manka Gandhi vs. Union of India, reported in 1978 (1) SCC 248 = AIR 1978 SC 597. ?Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus understood, ?procedure? must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes.... What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process is emphasised by the strong word ?established? which means ?settled firmly? not wantonly or whimsically. If it is rooted in the legal consciousness of the community it becomes ?established? procedure. And ?law? leaves little doubt that it is normae regarded as just since law is the means and justice is the end.
Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights; observance of fundamental rights is not regarded as good politics and their transgression as bad politics.?
16.In A.K. Roy v. Union of India reported in (1982 (1) SCC 271 = 1982 SCC (Cri) 152 = 1982 (2) SCR 272, this court laid down at paragraph 94 : (SCC p. 335) ?Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. A detenu, taken straight from his cell to the Board?s room, may lack the ease and composure to present his point of view. He may be ?tongue-tied, nervous, confused or wanting in intelligence?, (see Pett v. Greyhound Racing Association Ltd.(1969 1 QB 125 = 1968 (2) WLR 1471 = 1968 2 All ER 545, and if justice is to be done, he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas. Incarceration makes a man and his thoughts dishevelled. Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural justice per se, and therefore, if a statute excludes that facility expressly, it would not be open to the tribunal to allow it. Fairness as said by Lord Denning M.R. in Maynard v. Osmond 1976 (3) WLR 711 = 1977 (1) All ER 64 can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility.? This was followed in Johney D?Couto v. State of Tamil Nadu (1988 (1) SCC 116 = 1988 SCC (Cri) 70 = AIR 1988 SC 109. It was said in paragraph 6 : (SCC p.
121) ?The rule in A.K. Roy case (1982 (1) SCC 271 = 1982 SCC (Cri) 152 = 1982 (2) SCR 272 made it clear that the detenu was entitled to the assistance of a ?friend?. The word ?friend? used there was obviously not intended to carry the meaning of the term in common parlance. One of the meanings of the word ?friend?, according to the Collins English Dictionary is ?an ally in a fight or cause; supporter?. The term ?friend? used in the judgments of this Court was more in this sense than meaning ?a person known well to another and regarded with liking, affection and loyalty?. A person not being a friend in the normal sense could be picked up for rendering assistance within the frame of the law as settled by this Court. The Advisory Board has, of course, to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is not entitled to representation through a lawyer. As has been indicated by this Court, what cannot be permitted directly should not be allowed to be done in an indirect way. Sundararajan, in this view of the matter, was perhaps a friend prepared to assist the detenu before the Advisory Board and the refusal of such assistance to the detenu was not justified. It is not for this Court to examine and assess what prejudice has been caused to the detenu on account of such denial. This Court has reiterated the position that matters relating to preventive detention are strict proceedings and warrant full compliance with the requirements of law.?
17.In Rajendrakumar Verma v. The State of Tamil Nadu reported in 1993 Crl.L.J. 2590, notices were served on 11.11.2012 at 18.40 Hours, to the detenus to make their representation before the Advisory Board, through their friends, who were in other States. Advisory Board meeting was to be held on 13.11.1992. One of the contentions raised in Rajendrakumar Verma's case, was that the detenus were not in position to contact their friends to get their assistance, at the time of personal hearing, before the Advisory Board. Though in the reported case, the learned Public Prosecutor submitted that the detenus could have made a representation before the Advisory Board, for an adjournment, attention of the Court was brought to the decisions made in State of Andra Pradesh v. B.Subbarajamma reported in AIR 1989 SC 389, by the detenu therein. Though an attempt was also made to distinguish the said decision, on the facts and circumstances of Rajendrakumar Verma's case and taking note of the decision of the Division Bench in W.P.No.10010 of 1984, dated 09.04.1985 [Babu v. State by Public Prosecutor], wherein, the Hon'ble Division Bench held that the detenu in that case was prejudiced, and it cannot be said that the proceedings before the Advisory Board was fair, and in accordance with the provisions of the statute. In W.P.No.10010 of 1984, it has been observed as follows:
?In the circumstances, therefore, unless sufficient time is given to the detenu for making his written representation, it could not said that the mandatory provision in S. 11 had been complied with. If the Advisory Board's report was not in accordance with the provisions of the Act, then the confirmation of the detention order on the basis of the Advisory Board's report also gets vitiated."
Ultimately, on the facts and circumstances of Rajendrakumar Verma's case, it has been held as follows:
?We have given the date on which the notices regarding the Advisory Board meeting were served on the detenus and also the date of Advisory Board meeting. In the light of the facts stated above, we have no doubt that the detenus were not given reasonable opportunity for making effective and meaningful representation before the Advisory Board. We are also unable to agree with the learned Additional Public Prosecutor that the decision (supra) must be confined to the facts of that case alone. Though there was special circumstance, the extract from the decision of the Supreme Court given above is not with reference to the facts of that case, and, applying the extract of the Supreme Court as given above, we hold that the detenus in these cases were not given reasonable opportunity to put forward their effective and meaningful representation before the Advisory Board. For both these reasons, we hold that the orders of detention in all these three cases are vitiated, and accordingly they are quashed. The petitions are allowed. The respondent, who is common in all these three cases, is directed to release the detenus forthwith from custody unless they are liable to be detained in the custody for some other cause.?
18. In Vijay Kumar v. Union of India reported in 1988(2) SCC 57, cited by Mr.C.Ramesh, learned Additional Public Prosecutor, the grievance of the detenu therein, was that he was not given an opportunity to examine the witness and also to have the assistance of his friend, who was waiting outside the Board room, in defending the appellant before the Advisory Board.
Affidavits of the said witnesses and also of the friend, who was present to assist the detenu, have been filed before the High Court, in support of the allegation that they were all present and waiting outside the Board room. The detaining authority has filed a counter affidavit, wherein, he has stated that the detenu did not ask for the examination of these witnesses, though he had stated so, in his representation. The detenu himself explained his case before the Advisory Board and kept silent, as to whether his witnesses were present outside or whether he would like to examine them, in rebuttal of the charges made against him. The Detaining Authority, in his counter affidavit, has also stated that though the detenu was permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing, he did not avail of the same. In the abovesaid circumstances, at Paragraph 21, the Apex Court held as follows:
?It appears from the observation made by the High Court that the appellant, without making any prayer before the Advisory Board for the examination of his witnesses or for giving him assistance of his friend, started arguing his own case, which in all probability, had given an impression to the members of the Advisory Board that the appellant would not examine any witness. The appellant should have made a specific prayer before the Advisory Board that he would examine witnesses, who were standing outside. The appellant, however, did not make any such request to the Advisory Board. There is no reason for not accepting the statement of the detaining authority that the appellant was permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing, but the appellant did not avail himself of the same. In the circumstances, we do not think that there is any substance in the contention made on behalf of the appellant that the Advisory Board acted illegally and in violation of the principles of natural justice in not examining the witnesses produced by the appellant at the meeting of the advisory Board and in not giving permission to the appellant to have the assistance of his friend.?
19.Here is a case, where the detenu had no sufficient time to even inform his friend or relative. The issue before us is not whether the Advisory Board had denied him the opportunity, violating the principles of natural justice. But whether the competent authority did provide sufficient opportunity and reasonable time to seek for the assistance of his friend or relative or not.
20.In Sharad Kumar Tyagi v. State of Uttar Pradesh reported in AIR 1989 SC 764, on the facts and circumstances of the reported judgment, at Paragraph 21 of the judgment, the Apex Court observed that, ?From the materials on record, we are satisfied that the appellant was accorded permission to have the services of a friend and the radiogram sent by the Government was duly communicated to him but for some reason he had not availed the services of a friend. He did not also choose to represent to the Advisory Board that he was not given sufficient time to secure the services of a friend.?
21.In the reported case, the Advisory Board directed the State Government, through its letter, dated 21st July, 1988 that since the detenu had requested to appear along with his next friend, he may be informed to attend the Board's meeting, along with his next friend on the date of hearing. The State Government complied with the instructions of the Advisory Board and sent necessary directions to the District Authorities, through its radiogram message dated 26 July, 1988. Radiogram message has been conveyed to the detenu, by the Superintendent of Police, Meerut District Jail. Though in Sharad Kumar Tyagi's case, the learned counsel for the detenu contended that the detenu was not given sufficient time, on the facts and circumstances of the case, the Apex Court observed as follows:
?It was not therefore his case that he was shown the radiogram belatedly and he did not have time to make arrangements for anyone to appear alongwith him before the Advisory Board. Another circumstance which militates the contention of Mr.Jain is that there is no material to show that the petitioner had orally represented to the Chairman of the Advisory Board that he wanted the services of a friend and that he had been shown the radiogram very late.?
22.Thus from the above judgment, it could be seen that if there was a case of belated intimation and thus the detenu was not given adequate time, then it could have been a ground to canvass on the denial of reasonable opportunity. Yet another fact considered by the Apex Court was that the detenu did not orally represent before the detaining authority that he wanted the services of a friend and that he had been shown the radiogram belatedly.
23.Let us now consider the decision made in Dharman v. The State of Tamil Nadu reported in 2002 (1) CTC 477. It is a short judgment and therefore, the same is extracted hereunder:
?1. The point that is taken in this HCP is that the detenu was informed only on 27.08.2001 at 4.40 P.M., about the meeting of the Advisory Board on 29.08.2001 and by reason of which the detenu has lost his opportunity to make an effective representation before the Advisory Board. We find considerable force in the submission made by the learned counsel for the petitioner. We heard the learned Additional Public Prosecutor as well and we do not accept the submission that the detenu had sufficient time to make a proper and effective representation.
2. In this view of the matter, the HCP is allowed. The order of detention, dated 30.07.2001, passed by the 2nd respondent is set aside. The detenu is directed to be set at liberty forthwith, unless he is required in some other case.?
24.In an unreported decision made in HCP.No.996 of 2011, dated 12.01.2012, dated 12.01.2012 [K.Mayilammal v. The State of Tamil Nadu], one of the grounds for issuance of writ of Habeas Corpus was that sufficient time was not given to the detenu, to prepare an effective representation to be submitted before the Advisory Board. Following Dharman's case (cited supra), at Paragraph 8, held as follows:
?The third ground is that the State Advisory Board meeting was fixed on 03.10.2011 at 12.00 Noon and the intimation regarding the same was given to the detenu only on 30.09.2011, giving only two days time in between and therefore, the detenu was not given sufficient time to prepare effective representation to be submitted before the State Advisory Board. In the decision of this Court reported in 2002 (1) CTC 477 (Dharman v. State of Tamil Nadu) giving only two days time to make effective representation was found as insufficient time to make proper and effective representation and on that ground, the habeas corpus petition was allowed. Thus, the said ground is also held in favour of the detenu.?
25.Placing reliance on G.O.Ms.No.524, Home, Prohibition, Excise (IX) Department, dated 16.09.2011, the learned Additional Public Prosecutor has contended that telephone facilities are already available in the Central Prison, Madurai, where the detenu is detained and in other institutions and further contended that right from the date of service of grounds of detention, the detenu had sufficient time and opportunity to inform his friend or relative, to make himself available before the Advisory Board.
26.The contention that 09.05.2014 was a Friday and the ensuing dates, i.e., 10.05.2014 and 11.05.2014 were Saturday and Sunday, is not disputed.
In between 09.05.2014 and 12.05.2014, there were three days. The further contention that persons detained under the Preventive Laws, are not permitted to have visitors on Saturdays and Sundays, though not specifically proved by any documents, but the same has not been disputed by the respondent, by placing any material document. From the above, it could be seen that there are telephone facilities to contact a friend/relative/advocate, subject to certain conditions. As per the instructions, at the most, a prisoner, in a month, can converse with his friend/relative/advocate, for not more than 30 minutes. The conversation should not exceed 10 minutes. In between each call, there should not be a gap of 10 days. The maximum permitted calls are
3. Therefore, even taking it for granted that the prisoners are given telephone facilities to talk to their friends/relatives/advocates, in view of the restrictions stated, and considering the voluminous pages in the booklet and grounds of detention, there will not be sufficient time to discuss with any friend or relative, about the details of the order, and get his assistance. At best, he can only intimate. But he may or may not have adequate time to discuss. Therefore, in order to brief his friend/relative, the detenu must have sufficient time.
27.Relevancy of the materials considered by the Detaining Authority or the legal aspects, which required to be placed before the Advisory Board, comprising of a Retired High Court Judge and two other Hon'ble members, in all probabilities, may not be expected to be known to the detenu. If adequate and reasonable time is given to the detenu, to have a discussion with his friend or relative, who is permitted to be present, before the detaining authority, then, it can be said that the detenu has been given sufficient time or reasonable opportunity to putforth his case before the Advisory Board. A right conferred on the detenu should not be mere reproduction of words, which is always made in every detention order. But it should enable the detenu to have any discussion with his friend or relative, on the entire materials considered against him, by the Detaining Authority and for that purpose, the detenu should have sufficient time.
28.As per Section 10 of the Act, the State Government shall within three weeks from the date of detention of a person, place before the Advisory Board, the grounds of detention the order has been passed and the representation, if any, made by the detenu. Though in the detention order, it is stated that the detenu has a right to make a representation to the Government, as well as to the Advisory Board, nowhere, it is stated that the Advisory Board would consider his case within three weeks from the date of detention order, so that he can make his arrangement within such time. In such circumstances, he may not know, as to when, his case would be placed before the Advisory Board. His friend or relative may not be available at all times. Therefore, between the date of such intimation, and the date scheduled by the Advisory Board, there should be a reasonable time, so as to enable him, to contact his friend or relative. The assistance should be of some use to the detenu, at the time of personal hearing by the Advisory Board and not mere presence. Grounds of detention merely reads that he can make a representation to the Advisory Board and if he is desirous of availing the assistance of a friend or relative, he can do so, and that he must make his own arrangements. A contention can also be raised that even if the detenu is not in a position to make any effective representation, in person, to the Advisory Board, still the Board comprising of a Retired High Court Judge and others would on their own, would consider the merits of each case, from their opinion as to whether there is sufficient cause for the detention certainly concerned. The Advisory Board would consider the representation, if any, made along with the oral submission of the detenu. But when an opportunity of being heard, is statutorily provided, exercise of that right should be meaningful.
29.Even taking it for granted that no sooner, the detenu received the ground of detention, the detenu can inform his friend or relative to accompany him, before the Advisory Board, on any day, to be fixed by the Board, it cannot be said that such a right once exercised by the detenu, by informing the name and other particulars of his friend or relative, the Competent Authority lateron, cannot permit him to change his friend/relative, due to non-availability of such person. Reasons for non-availability may be bona fide. However, the only embargo in the Act is that such a friend or relative should not be an Advocate. In such circumstances, the detenu can avail any other friend or relative, during the personal hearing before the Advisory Board and the right conferred on the detenu should not be curtailed.
30.Right of liberty is a most cherished right under the Constitutional Right. At all stages, the competent authority is obligated to consider the representation and denial of the same would cause prejudice to the detenu. Viewed with the Constitutional guarantee and the right of the detenu, we are of the view that unless and until, sufficient time is given to the detenu to get the assistance of his friend or relative, personal hearing provided to the detenu would not be any use, rather, it would be illusory.
31.Reasonable opportunity of being heard involves two elements, viz., an opportunity of being heard must be given and that this opportunity must be reasonable. Both should be satisfied. Under Section 11 of the Act 14/1982, the Advisory Board is required to form an opinion, as to whether or not, there is sufficient cause for the detention of the person concerned and submit its report to the State Government. When Sub-Section (5) of Section 11 does not entitle any person, against whom the detention order has been made, to appear through an advocate in any matter concerned with the Advisory Board and when the detenu is permitted to seek the assistance of his friend or relative, assistance, offered should be useful, and it should have some relation to the purpose, for which, it is given.
32.Assistance meant to be provided to the detenu is not merely to be present, at the Advisory Board. It is to assist or help a person, who is in need. Friend or relative of the detenu is not only to make his physical presence, before the proceedings before the Advisory Board, where an opportunity of being heard, is provided, but to assist him, and it is not a mere ceremony or ritual. Assistance means an act to assist or help the one, who is desirous of taking assistance. When the detenu is statutorily deprived of assistance of an advocate before the Advisory Board, then, he must atleast be provided with a reasonable or sufficient time to brief his friend or relative to get his help. At this juncture, it is also to be noted that the booklet contains many pages. Invariably, in all cases, when the materials are furnished to the detenu, the contents thereof are read over and explained to the detenu. Not in all cases, the detenus can read and understand, and therefore, the exercise of reading and explaining of all the materials the contents is warranted. In such circumstances, unless sufficient time is given to the detenu, he cannot even discuss with his friend or relative, about the materials or even, such friend or relative may not time to go through.
33.The word ?sufficient? means adequate, enough, as much as may be necessary to answer the purposes intended. It embraces no more than that which provides a plenitude which, when done, suffice to accomplish the purpose intended in the light of the existing circumstances and when viewed from reasonable standard of practical and reasonable man. Sufficient time should receive liberal construction, so as to advance substantial justice.
34.As stated supra, reasonable opportunity of being heard has two elements. Firstly, an opportunity of being heard must be given and secondly, that opportunity should be reasonable. Reasonable time depends upon the circumstance of each case. Whether the detenu had a reasonable time to contact friend or relative, from the date of intimation, as to when the Advisory Board would consider his case, court has to examine the same, with reference to time permitted during the visitation days, in prisons, so as to enable the detenu to have atleast a brief discussion on the entire materials, furnished, and whether, within the length of time, permitted to visit, he could discuss the matter with his friend or relative, with the materials considered by the Detaining Authority and extend his assistance, before the Advisory Board.
35.In that context, a reasonable time should be so much time, as is necessary, under the circumstances, with reference to the various factors, stated supra. It should be such time, as permissible and not unreasonable, with reference to the Constitutional right of the detenu to place all the materials before the Advisory Board, with the assistance of his friend or relative. Therefore, we are of the humble view that between the date of intimation to the detenu and the proposed Advisory Board meeting, there should be sufficient time. Merely because in the grounds of detention, the detenu had been already informed of his right to take the assistance of a friend or relative, that does not mean that by stroke of intimation, he must be ready with his friend or relative, on any date.
36.In the present case, the detenu has been served with the copy of the intimation on 09.05.2014 at 13.50 Hours. Hardly, he had time to contact his friend or relative to get his assistance. In Sharad Kumar Tyagi's case, the Supreme Court reiterated the principles enunciated in Nandial Roy v. State of West Bengal reported in [1972] 2 SCC 524, wherein, it has been held that even though a detenu is not entitled to have legal assistance, yet, he does have a right to have the assistance of a friend, at the time when his case is considered by the Advisory Board and denial of opportunity to have the assistance of a friend would vitiate the detention. But, on the facts and circumstances in Sharad Kumar Tyagi's case, the Apex Court held that the detenu therein did not represent to the Advisory Board that he did not have adequate time to get the services of a friend and that he required time to have the services of a friend and such being the case, he cannot take advantage of his own lapse and raise a contention that the detention order is illegal, because he was not represented by a friend, at the meeting of the Advisory Board.
37.(1) The detenu should be informed, well in advance, of his right to have the assistance of his friend or relative, at the time, when his case is being considered by the Advisory Board.
(2) Adequate time should be given to the detenu to contact his friend or relative to discuss the matter with him.
(3) Make his own arrangements for appearance, before the Advisory Board.
38.What is observed in Sharad Kumar Tyagi's case (cited supra), is that if adequate time is not granted and if the detenu had not represented the said fact, before the Advisory Board, then he cannot take advantage of his own lapse and raise a contention that the detention order is illegal. Lapse on the part of the detenu, has been considered by the Apex Court. With due respect, the Hon'ble Supreme Court proceeded on the footing, had the detenu made a request for adjournment, the Advisory Board would have considered the request for adjournment. The Apex Court also proceeded on the basis that violation of principles of natural justice was not placed before the Advisory Board. Admittedly, in the case on hand, the detenu has not sought for any adjournment. But the issue, which this Court addresses is whether the detenu was given a reasonable opportunity to contact his friend or relative, to assist him and thus he was denied of any reasonable opportunity. Ventilating his grievance before the Advisory Board is different from, what the authority is expected to do, when a right of hearing is given.
39.Reverting to the case on hand, the representation, dated 12.04.2014, enclosed in the typed set of papers, filed by the petitioner and also admitted by the Commissioner of Police, Madurai City, in his counter affidavit, as representation, dated 16.04.2014 and not 12.04.2014, as stated by the detenu, shows that the detenu had studied only upto primary level, and as the detention order and booklet runs upto 230 pages, he could not understand the contents and hence, not able to make an effective representation before the Advisory Board. In his representation, he has also stated that in his family, there was no educated person. In his representation, he has sought for permission to engage an Advocate. There is statutory bar for taking assistance of an Advocate.
40.At this juncture, as rightly pointed out by the learned Additional Public Prosecutor, the said statement is not correct. As per his own confessional statement enclosed in the Booklet at pages 50 and 51 of the Booklet, his brother has studied M.Com. Though the detenu had made an incorrect statement in his representation dated 12.04.2014, which is referred by the Commissioner of Police, Madurai City, as 16.04.2014, nothing prevented the authorities to bring it to the notice of the Advisory Board, about the factual position and reject his request on that ground.
41.If the detenu has no relative/friend, from whom, he cannot get any help, in advancing his case before the Advisory Board. In the case on hand, he has sought for assistance of an Advocate, which is forbidden under Section 11(5) of the Act. In such circumstances, when he was put on short notice, about the meeting of the Advisory Board, the Court can examine as to whether there is any lapse on the part of the authorities, in not giving him, reasonable time to contact any person, who could assist him, in presenting his case. Looking at from the point of view of the detenu, the time given, should be reasonable. It is one thing to state that the detenu did not represent to the Advisory Board and seek for an adjournment on the abovesaid ground, and another, to consider as to whether reasonable time was given.
42.In a given case, if the detenu's relatives are not educated, then, virtually he cannot exercise his right, through his relative. Therefore, when the detenu has been informed of his right to make a representation to the Chairman of the Advisory Board, through the Additional Superintendent of Prisons, Central Prison, Madurai, as to whether he is desirous to be heard in person, by the Advisory Board, then, he must be given a reasonable time.
43. In the detention order, when the detenu was permitted to avail the assistance of his friend or relative, if he so desirous, at the time of personal hearing before the Advisory Board, provided that his friend or relative, is not an Advocate and that the detenu has to make his own arrangement to get his friend or relative to be present, at the time of personal hearing before the Advisory Board, it is desirable also to state that his case would be considered within three weeks from the date of detention, so that he can make his own arrangements within such time.
44.Instead of finding fault with the detenu, who had not represented before the Advisory Board that he was not given adequate time, considering the right conferred on him, we are of the humble view, it is for the competent authorities, to give sufficient time, between the date of intimation and the date scheduled for the meeting of the Advisory Board, so as to enable him to either discuss the matter with anyone through the Superintendent of Prisons. The detenu has to inform his friend or relative, the nature of accusation made against him, discuss with him, for which, adequate time has to be given. Opportunity given should be real and not ritualistic. It should be effective and not illusory. A mere ritual would be an empty formality and not an opportunity. It would be a pretence or make belief. Opportunity given also includes reasonable notice of hearing, to avail the assistance of a friend or relative.
45.No doubt, the Advisory Board presided over by a Retired High Court Judge and other Hon'ble members, is obligated to consider the materials on record and from its opinion as to whether there is sufficient cause for detention, and to consider the representation, but that alone cannot be equated to personal hearing. In a given case, a representation would have been sent immediately, after the service of grounds of detention and other materials on the detenu, but lateron, if he is given sufficient notice of hearing, then probably, he may discuss the matter with his friend or relative, understand the entire contents and able to make out a case, during the personal hearing.
46.Reverting back to the case on hand, though the Advisory Board had fixed the personal hearing on 12.05.2014 at 12.00 Noon, the detenu had been intimated only on 09.05.2014 at 13.50 Hours, by the Additional Superintendent of Police, Central Prison, Madurai. As 09.05.2014 was a Friday and the ensuing days, 10.05.2014 and 11.05.2014 were Saturday and Sunday, we are of the view that the detenu was not given sufficient time to contact any of his friends or relatives to assist him, to putforth his case, before the Advisory Board.
47.For the aforesaid reasons and the decisions, stated supra, this Court is inclined to quash the order of detention. The detention order is set aside. Hence, the Habeas Corpus Petition is allowed. The respondents are directed to release the detenu forthwith, unless required to be detained in any other case. No costs.
(S.M.K., J.) (V.S.R., J.) 18.08.2014 Index : Yes Internet : Yes NB2/SKM S.MANIKUMAR,J.
and V.S.RAVI,J.
NB2 To
1.The State rep by The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9.
2.The Commissioner of Police, Office of the Commissioner of Police, Madurai.
3.The Superintendent of Police, Madurai Central Prison, Madurai.
H.C.P.(MD) No.444 of 201418.08.2014