Madras High Court
Amina vs Secretary To The Government on 21 December, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.2216/2023
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.2216/2023
Amina .. Petitioner
Versus
1.Secretary to the 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
Prohibition Enforcement Wing
Tiruppur City,
Tiruppur. .. Respondents
1
https://www.mhc.tn.gov.in/judis
HCP.No.2216/2023
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.10/DO/IS/Tiruppur City/2023 against the petitioner's
son / detenu Altaf male aged 19 years son of Hakeem, 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.
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(3)Though several points have been raised by the petitioner in the Grounds
of Detention, the learned counsel for the petitioner made the following
three-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
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filing bail petition before the concerned Court in 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.
➔ The impugned order of detention in the petition, is vitiated on the
ground of delay in considering the representation of the detenu,
dated 19.04.2023. According to the learned counsel for the
petitioner, though the representation dated 19.04.2023, was
received by the Government on 20.04.2023 ; and though the file
has been dealt with by the Deputy Secretary on 21.04.2023, the
Minister concerned dealt with the file only on 27.04.2023 and the
Rejection Letter prepared on the same day, was sent to the detenu
on 28.04.2023. It is the further submission of the learned counsel
that this inordinate delay in considering the representation remains
unexplained and the same vitiates the detention order. In support
of his contention, the learned counsel for the petitioner relied on
the judgment of the Hon'ble Supreme Court in Rajammal vs.
State of Tamil Nadu, reported in (1999) 1 SCC 417.
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(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 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
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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 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
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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
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.
https://www.mhc.tn.gov.in/judis
(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 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
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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.''
(8)As per the submission of the learned counsel for the petitioner and on
perusal of the records, we find that, the representation of the detenu,
dated 19.04.2023, which was received by the Government on 20.04.2023,
was dealt with by the Minister concerned only on 27.04.2023 and the
Rejection Letter was prepared on the next day. Thus, we find there is a
considerable delay of four days [after excluding the intervening Saturday
and Sunday [22.04.2023 and 23.04.2023] in considering the
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representation of the petitioner. This inordinate delay in considering the
detenu's representation remain unexplained.
(9)It is trite law that the representation should be very expeditiously
considered and disposed of with a sense of urgency and without
avoidable delay. Any unexplained delay in the disposal of the
representation would be a breach of the constitutional imperative and it
would render the continued detention impermissible and illegal. From the
records produced, we find that no acceptable explanation has been
offered for the inordinate delay. Therefore, we have to hold that the delay
has vitiated further detention of the detenu.
(10)In the judgment of the Hon'ble Supreme Court in Rajammal's case
(cited supra), it has been held as follows:
"It is a constitutional obligation of the Government to
consider the representation forwarded by the detenu without
any delay. Though no period is prescribed by Article 22 of the
Constitution for the decision to be taken on the representation,
the words "as soon as may be " in clause (5) of Article 22
convey the message that the representation should be
considered and disposed of at the earliest."
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(11)As per the dictum laid down by the Supreme Court in above cited
Rajammal's case, number of days of delay is immaterial and what is to
be considered is whether the delay caused has been properly explained by
the authorities concerned. But, here the inordinate delay from 21.04.2023
to 27.04.2023, has not been properly explained at all.
(12)Further, in a recent decision in Ummu Sabeena vs. State of Kerala -
2011 STPL (Web) 999 SC, the Hon'ble Supreme Court has held that the
history of personal liberty, as is well known, is a history of insistence on
procedural safeguards. The expression 'as soon as may be', in Article
22(5) of the Constitution of India clearly shows the concern of the makers
of the Constitution that the representation, made on behalf of the detenu,
should be considered and disposed of with a sense of urgency and
without any avoidable delay. 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.
(13)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 detention
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order is liable to be quashed.
(14)Accordingly, the detention order passed by the 2nd respondent dated
10.03.2023 in C.No.10/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
Internet: Yes
https://www.mhc.tn.gov.in/judis
To
1.Secretary to the 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
Prohibition Enforcement Wing
Tiruppur City,
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
