Madras High Court
Chandralekha vs The State Of Tamil Nadu Rep.By on 29 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.1866/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 29.11.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1866/2023
Chandralekha .. Petitioner
Versus
1.The State of Tamil Nadu rep.by
its Additional Chief Secretary to Government,
Home, Prohibition & Excise Department
Fort St George, Secretariat, Chennai 600 009.
2.The Commissioner of Police
O/o.The Commissioner of Police
Avadi, Chennai 600 054.
3.The Superintendent,
Central Prison, Puzhal, Chennai 600 066.
4.The Inspector of Police,
Law and Order
E3 Korattur Police Station
Chennai Tamil Nadu 600 080. .. Respondents
1
https://www.mhc.tn.gov.in/judis
HCP.No.1866/2023
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 order of detention dated 01.07.2023 passed by the 2nd
respondent vide No.169/BCDFGISSSV/2023 against the petitioner's
husband namely Kulasekaran @ Kutty, aged about 44 years, now confined
at Central Prison, Puzhal, Chennai and set aside the same and direct the
respondents to produce the above named detenu before this Court and set
him at liberty.
For Petitioner : Mr.K.Prabakar
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, wife of the detenu has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
01.07.2023 slapped on her husband, branding him as "Goonda" under the
Tamil Nadu Act 14 of 1982.
(2)Heard the learned counsel for the petitioner and the learned Additional
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Public Prosecutor appearing for the respondents.
(3)Though several grounds are raised in the petition, the learned counsel for
the petitioner made the following two submissions:-
(a) The order of Detention passed by the Detaining Authority suffers
from non application of mind as paragraph No.6 of the similar case
bail order in Crl.MP.No.1759/2018 in the English version in the
Booklet, differs in the vernacular version.
(b) He also assailed the order of detention on the ground of delay in
considering the representation of the detenu, dated 01.08.2023.
According to the learned counsel for the petitioner, the representation
dated 01.08.2023, was received by the Government on 03.08.2023 ;
and though the file has been dealt with by the Deputy Secretary on the
next day on 04.08.2023, the Minister concerned dealt with the file
only on 11.08.2023 and the Rejection Letter prepared and was sent to
the detenu on the same day. 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
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on the judgment of the Hon'ble Supreme Court in Rajammal vs.
State of Tamil Nadu, reported in (1999) 1 SCC 417.
(4)On a perusal of the Booklet, in particular, page No.253, it is seen that
bail order granted to the accused in a similar case is furnished and in
paragraph No.6, it is stated as follows:-''......The murder case pending
against the petitioner is of the year 2012 and another case is of the
year 2014...''. However, in the translated copy of the said bail order in
the vernacular version, it is stated as follows:-'',td; kPJ Vw;fdnt
bfhiy tHf;F kw;Wk; bfhiy Kaw;rp tHf;F cs;sJ////// ''
Hence, it is seen that there is an improper translation of the similar case
bail order in the vernacular version.
(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
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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
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
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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
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)As regards the second contention of the learned counsel for the petitioner
in relation to the delay in considering the representation, on perusal of the
records, we find that, the representation of the detenu, dated 01.08.2023,
which was received by the Government on 04.08.2023 ; which was dealt
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with by the Deputy Secretary on 04.08.2023, was dealt with by the
Minister concerned only on 11.08.2023 and the Rejection Letter was
prepared on the same day. Thus, we find there is a considerable delay of
five days [after excluding the intervening holidays, namely 05.08.2023
and 06.08.2023] in considering the representation of the petitioner. This
delay in considering the detenu's representation remain unexplained.
(8)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 of four days. Therefore, we have to hold that the delay has vitiated
further detention of the detenu.
(9)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
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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."
(10)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 four days, has
not been properly explained at all.
(11)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.
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(12)In the light of the above facts and law, we have no hesitation in
quashing the order of detention on the ground of delay on the part of the
Government in disposing of the representation of the detenu and on the
ground of improper translation depriving the detenu a fair opportunity to
make effective representation against the detention order before the
authorities concerned.
(13)Accordingly, the detention order passed by the 2nd respondent dated
01.07.2023 in No.169/BCDFGISSSV/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.]
29.11.2023
AP
Internet :Yes
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To
1.The Additional Chief Secretary to Government,
State of Tamil Nadu
Home, Prohibition & Excise Department
Fort St George, Secretariat, Chennai 600 009.
2.The Commissioner of Police
O/o.The Commissioner of Police
Avadi, Chennai 600 054.
3.The Superintendent,
Central Prison, Puzhal, Chennai 600 066.
4.The Inspector of Police,
Law and Order
E3 Korattur Police Station
Chennai Tamil Nadu 600 080.
5.The Public Prosecutor
High Court, Madras.
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S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
AP
29.11.2023
https://www.mhc.tn.gov.in/judis
