Madras High Court
Bharathi vs The Secretary To The Government on 1 December, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.1338/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 01.12.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1338/2023
Bharathi .. Petitioner
Versus
1.The Secretary to the Government
Home, Prohibition & Excise Department
Secretariat, Chennai 600 009.
2.District Collector and District Magistrate of
Kancheepuram District, Kancheepuram.
3.The Superintendent of Police
Kancheepuram District, Kancheepuram.
4.The Superintendent of Prison
Special Prison for Women, Vellore.
5.The Inspector of Police
Kancheepuram PEW Police Station
Kancheepuram District. .. Respondents
1
https://www.mhc.tn.gov.in/judis
HCP.No.1338/2023
Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for a Writ of Habeas Corpus calling for the records in
connection with the order of detention passed by the 2nd respondent dated
11.07.2023 in Rc.No.123/2023/M6-DO.No.22/2023 against the petitioner
mother Kalaiyarasi, female, aged 50 years, wife of Ganesan, who is confined
at Specia Prison for Women, Vellore and set aside the same and direct the
respondents to produce the detenue before this Court and set her at liberty.
For Petitioner : Mr.D.Balaji
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
assisted by Mr.Aravind.C
ORDER
[Order of the Court was made by S.S.SUNDAR, J.]
(1)The petitioner, daughter of the detenue, has come forward with this
petition challenging the detention order passed by the 2nd respondent
dated 11.07.2023 slapped on her mother, branding her as "Bootlegger"
under the Tamil Nadu Act 14 of 1982.
(2)Heard the learned counsel for the petitioner and the learned Additional
Public Prosecutor appearing for the respondents.
(3)Though several grounds are raised in the petition, the learned counsel for
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the petitioner submitted that the order of Detention passed by the
Detaining Authority is vitiated as the detenu is deprived of a fair
opportunity to make an effective representation on account of the fact that
the Forensic Report and the bail order in the ground case in the English
version has not been translated in the vernacular language.
(4)On a perusal of the Booklet, this Court finds the English version of the
Forensic Report and the bail order in the ground case in pages No.97, 977
and 137. However, the said vital documents are not made available to the
detenu in the vernacular language. It is in the said circumstances, this
Court finds that the detenu is deprived of his right to make effective
representation to the authorities concerned as against the Detention Order.
(5)In this context, it is useful to refer to the judgment of the Hon'ble
Supreme Court in Powanammal Vs. State of Tamil Nadu reported in
(1999) 2 SCC 413. The Hon'ble Supreme Court had occasion to deal with
similar situation where in the Grounds of Detention referred to an order
remanding the detenu therein to judicial custody was in English language.
Since the tamil version of the document was not supplied to the detenue
therein, a specific issue was raised by the Hon'ble Supreme Court whether
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failure to supply tamil version of the Forensic Report and the bail order in
the ground case passed in English, a language not known to the detenu
therein, would vitiate the detenu's further detention. The Hon'ble Supreme
Court, after discussing the safeguards embodied in Article 22[5] of the
Constitution, observed that the detenu should be afforded an opportunity
of making representation effectively against the Detention Order and that,
the failure to supply every material in the language which can be
understood by the detenu, is imperative. In the said context, the Hon'ble
Supreme Court has held in Paragraphs 9 and 16 {as in SCC journal} as
follows:
''9.However, this Court has maintained a
distinction between a document which has been relied
upon by the detaining authority in the grounds of
detention and a document which finds a mere
reference in the grounds of detention. Whereas the
non-supply of a copy of the document relied upon in
the grounds of detention has been held to be fatal to
continued detention, the detenu need not show that
any prejudice is caused to him. This is because the
non-supply of such a document would amount to
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denial of the right of being communicated the grounds
and of being afforded the opportunity of making an
effective representation against the order. But it would
not be so where the document merely finds a reference
in the order of detention or among the grounds
thereof. In such a case, the detenu's complaint of non-
supply of document has to be supported by prejudice
caused to him in making an effective representation.
What applies to a document would equally apply to
furnishing a translated copy of the document in the
language known to and understood by the detenu,
should the document be in a different language.
.....
16. For the above reasons, in our view, the non-
supply of the Tamil version of the English
document, on the facts and in the circumstances,
renders her continued detention illegal. We,
therefore, direct that the detenue be set free
forthwith unless she is required to be detained in
any other case. The appeal is accordingly allowed.''
(6)In view of the ratio laid down by the Hon'ble Supreme Court and in view
of the aforesaid facts, this Court is of the view that the detenion order is
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liable to be quashed.
(7)Accordingly, the detention order passed by the 2nd respondent dated
11.07.2023 in Rc.No.123/2023/M6-DO.No.22/2023 is hereby set aside
and the Habeas Corpus Petition is allowed. The detenue is directed to be
set at liberty forthwith unless she is required in connection with any other
case.
[S.S.S.R., J.] [S.M, J.]
01.12.2023
AP
Internet : Yes
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To
1.The Secretary to Government
State of Tamil Nadu
Home, Prohibition & Excise Department
Fort St George, Chennai-9.
2.The District Collector and District Magistrate
Tiruvannamalai District, Tiruvannamalai.
3.The Superintendent of Police
Tiruvannamalai District, Tiruvannamalai.
4.The Superintendent
Central Prison, Vellore.
5.The Inspector of Police
Thamdrampet Police Station
Tiruvannamalai District.
6.The Public Prosecutor
High Court, Madras.
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S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
AP
01.12.2023
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