Madras High Court
R.Vasanthi vs The Secretary To Government on 22 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.1429/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 22.11.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1429/2023
R.Vasanthi .. Petitioner
Versus
1.The Secretary to Government
Home, Prohibition & Excise Department
Secretariat, Fort St George, Chennai-600 009.
2.The District Collector & District Magistrate
Cuddalore, Cuddalore District.
3.The Superintendent of Police
Cuddalore, Cuddalore District.
4.The Superintendent of Police
Central Prison, Cuddalore,
Cuddalore District.
5.The Inspector of Police
Thiruppapuliyur Police Station
Cuddalore District. .. Respondents
1
https://www.mhc.tn.gov.in/judis
HCP.No.1429/2023
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 son detention under Tamil Nadu Act 14 of 1982
vide detention order dated 22.06.2023 on the file of the 2 nd respondent
herein made in proceedings Memo C3/D.O/30/2023, quash the same as
illegal and consequently direct the respondents herein to produce the
petitioner's son namely Sathish @ Haridoss, son of Rajendiran, aged 23
years before this Court and set the petitioner's son at liberty from detention,
now the petitioner's son detained at Central Prison, Cuddalore.
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, mother of the detenu, has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
2206.2023 slapped on her son, 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.
(3)The learned counsel for the petitioner though canvassed several points
before this Court, this Court is able to find some force in his submission
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that 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 by referring to an order passed in the
similar case in Crl.MP.No.7421/2022 by the learned District and Sessions
Judge, Cuddalore, on 24.11.2022. Learned counsel pointed out that the
learned Judge while granting bail to the accused in the similar case, had
not referred to any previous cases against the accused therein. Whereas,
the detenu in the present case has five previous cases. This aspect was
not considered by the Detaining Authority while arriving at the subjective
satisfaction that the detenu is likely to be released on bail in the ground
case and hence, the learned counsel submitted that the subjective
satisfaction of the Detaining Authority suffers from non application of
mind. Hence, on the above ground, the Detention Order is liable to be
quashed.
(4)From a perusal of the Booklet, in particular, page No.269, it is seen that
the Detaining Authority has relied upon the bail order in
Crl.MP.No.7421/2022 granted to the accused therein, to arrive at the
subjective satisfaction that the detenu herein is likely to be released on
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bail in the ground case. However, it is to be pointed out that there is no
reference to any previous cases against the accused therein by the learned
Judge while granting bail in Crl.MP.No.7421/2022. Whereas, the detenu
herein has got five previous cases. 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.
(5)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
satisfaction was irrational or there was non-application of mind, the
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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.''
(6)The learned counsel for the petitioner also submitted that the Post
Mortem Certificate pertaining to the 5th adverse case in Crime
No.1324/2020 found in pages No.207 and 208 has not been translated in
the vernacular version. This Court also affirmed the said submission on
perusal of the Booklet. It is in the said circumstances, this Court finds
that serious prejudice is caused to the detenu on account of improper
translation in making effective representation against the Detention Order
and that the Detention Order passed by the Detaining Authority is
vitiated.
(7)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
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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
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
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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
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.''
(8) In view of the ratio laid down by the Hon'ble Supreme Court and in view
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of the aforesaid reason, 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 Memo No.C3/D.O/30/2023 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.
[S.S.S.R., J.] [S.M, J.]
22.11.2023
AP
Internet : Yes
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To
1.The Secretary to Government
Home, Prohibition & Excise Department
Secretariat, Fort St George, Chennai-600 009.
2.The District Collector & District Magistrate
Cuddalore, Cuddalore District.
3.The Superintendent of Police
Cuddalore, Cuddalore District.
4.The Superintendent of Police
Central Prison, Cuddalore,
Cuddalore District.
5.The Inspector of Police
Thiruppapuliyur Police Station
Cuddalore District.
6.The Public Prosecutor
High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
AP
22.11.2023
https://www.mhc.tn.gov.in/judis
