Madras High Court
Mrs.Raheer vs The Secretary To Government on 21 December, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.2166/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 21.12.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.2166/2023
Mrs.Raheer .. Petitioner
Versus
1.The Secretary to Government
Department of Home, Prohibition and Excise
Secretariat, Fort St George, Chennai-9.
2.The Commissioner of Police/Detaining Authority
O/o.The Commissioner of Police
Tiruppur City.
3.The Superintendent
Central Prison, Coimbatore.
4.The Inspector of Police
Tiruppur City Police Station
[Excise and Prohibition]
Tiruppur. .. Respondents
1
https://www.mhc.tn.gov.in/judis
HCP.No.2166/2023
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 detention passed by the 2nd respondent dated
10.03.2023 in C.No.09/DO/IS/Tiruppur City/2023 against the petitioner /
detenu Muhammed Rahul male aged 22 years son of Muhammed Rafeeq,
who is confined at Central Prison, Coimbatore and set aside the same and
direct the respondents to produce the detenu before this Court and set him at
liberty.
For Petitioner : Mr.A.Mohammed Feroz
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
assisted by Mr.C.Aravind
ORDER
[Order of the Court was made by S.S.SUNDAR, J.]
(1)The petitioner, mother of the detenu, has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
10.03.2023 slapped on her son, branding him as "Drug Offender" 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 points have been raised by the petitioner in the Grounds
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of Detention, the learned counsel for the petitioner made the following
two-fold submissions:-
➔ The detenu was furnished with a Booklet in the English and Tamil
Version. However, the detenu is the native of Kerala and he knows
only Malayalam. Therefore, the documents which were relied
upon by the Detaining Authority to arrive at the subjective
satisfaction about the possibility of the detenu's release on bail is
not furnished to him in the language known to the detenu.
➔ There is no application of mind on the part of the Detaining
Authority in arriving at the subjective satisfaction. Learned
counsel pointed out that the Detaining Authority though has
specifically mentioned about the real possibility of the detenu
coming out on bail in the ground case, he has not relied upon any
similar case to arrive at the subjective satisfaction. He has merely
stated ''...I am aware that he has not moved any bail petition in
the above case in any court till this date. However, I am also
aware that there is a ''real possibility'' of coming out on bail in
future by filing bail petition before the concerned Court in
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future....''. This statement of the Detaining Authority without any
material, is mere ipse dixit not supported by any material and
suffers from non application of mind.
(4)It is seen that in the Booklet furnished to the detenu, the English version
and the Tamil Version of all the documents relied on by the Detaining
Authority, has been furnished. However, the detenu who is a Malayali,
has not been furnished with the documents, in the vernacular language
known to him, namely, Malayalam. This non furnishing of the vital
documents in vernacular language would deprive the detenu of making
effective representation to the authorities against the order of detention.
(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
failure to supply tamil version of the remand order passed in English, a
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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 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
denial of the right of being communicated the grounds
and of being afforded the opportunity of making an
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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)With regard to the second contention raised by the learned counsel for the
petitioner, from a perusal of the Grounds of Detention, in particular,
paragraph No.5, it is seen that the subjective satisfaction arrived by the
Detaining Authority, with regard to the real possibility of the detenu
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coming out on bail is not based on any materials and there is no reference
to any similar cases to arrive at such subjective satisfaction. This
subjective satisfaction of the Detaining Authority is mere ipse dixit and
suffers from non-application of mind.
(7)The Hon'ble Supreme Court, in the case of Rekha Vs. State of Tamil
Nadu through Secretary to Government and Another reported in 2011
[5] SCC 244, has considered a case where no details had been given
about the alleged similar cases in which bail was allegedly granted by the
Court concerned, and it is held by Hon'ble Supreme Court that in the
absence of details, the statement which is mere ipse dixit, cannot be relied
upon and that itself is sufficient to vitiate the detention order. When the
subjective satisfaction was irrational or there was non-application of mind,
the Hon'ble Supreme Court held that the order of detention is liable to be
quashed. It is relevant to extract paragraphs No.10 and 11 of the said
judgment of the Hon'ble Supreme Court:-
''10. In our opinion, if details are given by the
respondent authority about the alleged bail orders in
similar cases mentioning the date of the orders, the
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bail application number, whether the bail order was
passed in respect of the co-accused in the same case,
and whether the case of the co-accused was on the
same footing as the case of the petitioner, then, of
course, it could be argued that there is likelihood of
the accused being released on bail, because it is the
normal practice of most courts that if a co-accused has
been granted bail and his case is on the same footing
as that of the petitioner, then the petitioner is
ordinarily granted bail. However, the respondent
authority should have given details about the alleged
bail order in similar cases, which has not been done in
the present case. A mere ipse dixit statement in the
grounds of detention cannot sustain the detention
order and has to be ignored.
11. In our opinion, the detention order in
question only contains ipse dixit regarding the alleged
imminent possibility of the accused coming out on bail
and there was no reliable material to this effect.
Hence, the detention order in question cannot be
sustained.''
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(8)Thus, the detention order is vitiated on the ground of non furnishing of
the vital documents in the vernacular language as well as non-application
of mind and hence, the same is liable to be quashed.
(9)In view of the aforesaid reasons, the detention order passed by the 2nd
respondent dated 10.03.2023 in C.No.09/DO/IS/Tiruppur City/2023 is
hereby set aside and the Habeas Corpus Petition is allowed. The detenu is
directed to be set at liberty forthwith unless he is required in connection
with any other case.
[SSSRJ] [SMJ]
21.12.2023
AP
https://www.mhc.tn.gov.in/judis
To
1.The Secretary to Government
Department of Home, Prohibition and Excise
Secretariat, Fort St George, Chennai-9.
2.The Commissioner of Police/Detaining Authority
O/o.The Commissioner of Police
Tiruppur City.
3.The Superintendent
Central Prison, Coimbatore.
4.The Inspector of Police
Tiruppur City Police Station
[Excise and Prohibition]
Tiruppur.
5.The Public Prosecutor
High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
AP
21.12.2023
https://www.mhc.tn.gov.in/judis
