Madras High Court
Mageshkumar vs The Secretary To Government on 21 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.1382/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 21.11.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1382/2023
Mageshkumar .. Petitioner
Versus
1.The Secretary to Government
Home, Prohibition and Excise Department
Secretariat, Fort St George, Chennai 600 009.
2.The District Collector & District Magistrate
Coimbatore, Coimbatore District.
3.The Superintendent of Police
Coimbatore, Coimbatore District.
4.The Superintendent of Prison
Central Prison, Coimbatore,
Coimbatore District.
5.The Inspector of Police
Mettupalayam Police Station
Coimbatore District. .. Respondents
1
https://www.mhc.tn.gov.in/judis
HCP.No.1382/2023
Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for a Writ of Habeas Corpus calling for the entire records
relating to the petitioner's brother detention order under Tamil Nadu Act 14
of 1982 vide detention order dated 22.06.2023 on the file of the 2nd
respondent made in proceedings Memo Cr.MP.No.23/G/2023 quash the
same as illegal and consequently direct the respondents herein to produce
the petitioner's brother namely Surya, son of Balan, aged 21 years before
this Court and set the petitioner's brother at liberty from detention now the
petitioner's brother detained at Central Prison, Coimbatore.
For Petitioner : Mr.W.Camyles Gandhi
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, brother of the detenu has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
22.06.2023 slapped on his brother, branding him as "Goonda" 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, the learned
counsel for the petitioner raised the following points for consideration:-
(a)The Arrest Intimation in the Ground Case has been furnished in
English language and has not been translated in the vernacular
language. The detenu has studied upto 7th standard only.
(b)There is no application of mind on the part of the Detaining
Authority in arriving at the subjective satisfaction that the detenu
is likely to be released on bail in the ground case as the order
passed in the similar case in Crl.MP.No.32244/2022 by the
learned Judicial Magistrate No.1, Coimbatore, is not similar to the
present case. Learned counsel pointed out that the learned Judge
while granting bail to the accused in the similar case, had taken
note of the fact that the investigation in the similar case was
completed and charge sheet was filed. Whereas, it is not so in the
case of the detenu.
Hence, it is stated that the detention order is liable to be quashed on the
above grounds and the order of detention is vitiated on the ground of total
non application of mind and non translation of the vital document depriving
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of the detenu from making effective representation against the detention
order to the authorities concerned.
(4)This Court, upon examination of the records, is unable to discard any of
the contentions of the learned counsel for the petitioner. A perusal of page
No.90 of the Booklet would reveal that the English version of the Arrest
Intimation Form in the ground case has not been translated in the
vernacular language. This non furnishing of the vital document 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
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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
effective representation against the order. But it would
not be so where the document merely finds a reference
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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)The second ground raised by the learned counsel for the petitioner is also
substantiated. From a perusal of the Booklet, in particular, pages No.125
and 126, it is seen that the Detaining Authority has relied upon the said
bail order in Crl.MP.No.32244/2022 granted to the accused therein, to
arrive at the subjective satisfaction that the detenu herein is likely to be
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released on bail in the ground case. However, it is to be pointed out that
the learned Judge while granting bail in Crl.MP.No.32244/2022 has
particularly recorded the fact that the investigation was completed and
charge sheet was filed against the accused therein. Whereas, it is not so
in the present case. The Detaining Authority has not taken into
consideration this vital aspect, while arriving at the subjective satisfaction.
Hence, the subjective satisfaction of the Detaining Authority 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 it is stated that in the grounds
of detention that relatives of detenu are taking action to take him on bail
in the criminal case in which the detenu was in remand and that in similar
cases, bail was granted by Courts. Since no details had been given about
the alleged similar cases in which bail was allegedly granted by the Court
concerned, 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
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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 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.
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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) 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 order is
liable to be quashed.
(9)Accordingly, the detention order passed by the 2nd respondent dated
22.06.2023 in Cr.MP.No.23/G/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]
21.11.2023
AP
Internet : Yes
https://www.mhc.tn.gov.in/judis
To
1.The Secretary to Government
Home, Prohibition and Excise Department
Secretariat, Fort St George, Chennai 600 009.
2.The District Collector & District Magistrate
Coimbatore, Coimbatore District.
3.The Superintendent of Police
Coimbatore, Coimbatore District.
4.The Superintendent of Prison
Central Prison, Coimbatore,
Coimbatore District.
5.The Inspector of Police
Mettupalayam Police Station
Coimbatore District.
6.The Public Prosecutor
High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
AP
21.11.2023
https://www.mhc.tn.gov.in/judis
