Madras High Court
K.Elumalai vs The State Of Tamil Nadu on 23 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.1483/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 23.11.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1483/2023
K.Elumalai .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by the Secretary,
Prohibition & Excise Department
Fort St George, Chennai 600 009.
2.The District Collector and District Magistrate
Cuddalore District.
3.The Superintendent of Police
Cuddalore District, Cuddalore.
4.The Superintendent,
Special Prison for Women
Vellore.
5.The Inspector of Police
Prohibition Enforcement Wing
Vridhachalam, Cuddalore District. .. Respondents
1
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HCP.No.1483/2023
Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for a Writ of Habeas Corpus calling for the records
pertaining to the order of detention passed by the 2nd respondent dated
19.06.2023 in circumstantial evidence/D.O/29/2023 against the petitioner
now confined at Special Prison for Women at Vellore and set aside the same
and direct the respondent to produce the detenue Tmt.Dhanalakshmi aged
35 years, wife of Elumalai before this Court and set her at liberty.
For Petitioner : Mr.R.Sethuvarayan
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, husband of the detenu has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
19.06.2023 slapped on his wife, branding her 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 grounds are raised in the petition, the learned counsel for
the petitioner made the following submissions:-
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(a) The order of Detention passed by the Detaining Authority suffers
from non application of mind. The bail order pertaining to the detenu
in the ground case in Crl.MP.No.3475/2023 in the English version in
the Booklet, insofar as recording of the previous cases, differs in the
vernacular version.
(b) The similar case relied upon by the Detaining Authority to arrive at
the subjective satisfaction that the detenu is likely to be released on
bail, is not similar.
(c) There is a delay of three days in considering the representation
submitted by the detenu to the authorities concerned.
(4)On a perusal of the Booklet, in particular, page No.74, it is seen that
dismissal order of the detenu's bail application in the ground case is
furnished and in paragraph No.3, the learned Judge has recorded the fact
that the detenue was involved in eight previous cases. However, in the
vernacular version of the said order, it has been wrongly translated as
'four previous cases'. Hence, it is seen that there is an improper
translation of the dismissal order of the bail petition filed by the detenu in
the vernacular version.
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(5)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.
(6)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 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
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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
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
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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.''
(7)The second ground raised by the learned counsel for the petitioner is 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 as the order passed in the similar case
in Crl.MP.No.4762/2022 by the learned Additional District Judge, Special
Court under EC Act, Thanjavur, 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 accused
therein has got no previous case. Whereas, the detenu herein has got two
previous case. Hence, the said case cannot be compared to the case of the
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detenu.
(8)This Court, upon examination of the records, is unable to discard the said
contention of the learned counsel for the petitioner. From a perusal of the
Booklet, in particular, pages No.82, it is seen that the Detaining Authority
has relied upon the said bail order in Crl.MP.No.4762/2022 granted to the
accused therein, to arrive at the subjective satisfaction that the detenu
herein is likely to be 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.4762/2022 has particularly recorded the fact that the accused
therein has got no previous case. Whereas, the detenu herein has got two
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.
(9)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
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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
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
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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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(10)The third contention raised by the learned counsel for the petitioner is,
the delay in considering the representation submitted by the detenu.
According to the learned counsel for the petitioner, though the
representation dated 21.07.2023, was received by the Government on the
24.07.2023 ; and though the file has been dealt with by the Deputy
Secretary on 25.07.2023, the Minister concerned dealt with the file only
on 31.07.2023 and the Rejection Letter prepared on the same day, was
sent to the detenu on 01.08.2023. 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.
(11)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 21.07.2023, which was received by the Government on 24.07.2023,
was dealt with by the Minister concerned only on 31.07.2023 and the
Rejection Letter was prepared on the same day. Thus, we find there is a
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considerable delay of three days [after excluding the intervening Saturday
and Sunday [29.05.2023 and 30.05.2023]] in considering the
representation of the petitioner. This inordinate delay in considering the
detenu's representation remain unexplained.
(12)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.
(13)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
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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."
(14)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 of three days,
has not been properly explained at all.
(15)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.
(16)In the light of the above fact and law, we also have no hesitation in
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quashing the order of detention on the ground of delay on the part of the
Government in disposing of the representation of the detenu.
(17)Accordingly, the detention order passed by the 2nd respondent dated
19.06.2023 in CD/D.O/29/2023 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.]
23.11.2023
AP
Internet :Yes
To
1.The Secretary, State of Tamil Nadu
Prohibition & Excise Department
Fort St George, Chennai 600 009.
2.The District Collector and District Magistrate
Cuddalore District.
3.The Superintendent of Police
Cuddalore District, Cuddalore.
4.The Superintendent,
Special Prison for Women
Vellore.
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5.The Inspector of Police
Prohibition Enforcement Wing
Vridhachalam, Cuddalore District.
6.The Public Prosecutor
High Court, Madras.
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S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
AP
23.11.2023
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