Madras High Court
Eswari vs The Additional Chief Secretary To ... on 17 April, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
H.C.P.(MD) No.1372 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.04.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
H.C.P.(MD) No.1372 of 2023
Eswari ... Petitioner
-vs-
1.The Additional Chief Secretary to Government
Home, Prohibition and Excise Department
Secretariat, Chennai-600 009
2.The District Collector
and District Magistrate
Office of the District Collector
and District Magistrate
Madurai District
3.The Superintendent of Prison
Special Prison for Women
Madurai District ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus to call for the entire records in detention order in
B.C.D.F.G.I.S.S.S.V.No.21/2023, dated 31.10.2023, on the file of the second
____________
Page 1 of 8
https://www.mhc.tn.gov.in/judis
H.C.P.(MD) No.1372 of 2023
respondent and quash the same and direct the respondents herein to produce
the body of the petitioner's daughter, namely, Sivanammal, wife of Muthaiah,
aged about 38 years, now confined in Central Prison, Madurai, before this
Court and set her at liberty forthwith.
For Petitioner : Mr.R.Alagumani
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
[Order of the Court was made by A.D.JAGADISH CHANDIRA, J.]
The petitioner is the mother of the detenue viz., Sivanammal, wife
of Muthaiah, aged about 38 years. The detenue has been detained by the
second respondent by his order in B.C.D.F.G.I.S.S.S.V.No.21/2023, dated
31.10.2023, holding her to be a "Drug Offender", as contemplated under
Section 2(e) of Tamil Nadu Act 14 of 1982. The said order is under challenge
in this habeas corpus petition.
2. We have heard the learned counsel appearing for the petitioner
and the learned Additional Public Prosecutor appearing for the respondents.
We have also perused the records produced by the Detaining Authority.
____________
https://www.mhc.tn.gov.in/judis
3. Though several grounds have been raised in the habeas corpus
petition, learned counsel for the petitioner submitted that the Detaining
Authority, while detaining the detenue, has relied on remand order, which is
available at Page No.65 of the typed set of papers and it is in English
language. Though the petitioner asked for translated copy of the same in the
vernacular language, the same has not been furnished by the Detaining
Authority. It is, therefore, stated that the detenue is deprived of her valuable
right to make an effective representation.
4. On a perusal of the Booklet, this Court finds that the translated
copy of the remand order relied on by the Detaining Authority at Page No.65 of
the typed set of papers, in vernacular language, has not been furnished to the
detenue. Therefore, we are of the view that the non-furnishing of the said
document would deprive the detenue of her valuable right to make an effective
representation. It is in the said circumstances, this Court finds that the
impugned detention order passed by the Detaining Authority is vitiated.
5. In this context, it is useful to refer to the Judgment of the
Honourable Supreme Court in the case of Powanammal vs. State of Tamil
____________
https://www.mhc.tn.gov.in/judis
Nadu, reported in (1999) 2 SCC 413, wherein the Apex Court, after
discussing the safeguards embodied in Article 22(5) of the Constitution of
India, observed that the detenu should be afforded an opportunity of making a
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. The relevant portion of the said decision is extracted hereunder:
''6. The short question that falls for our
consideration is whether failure to supply the Tamil version
of the order of remand passed in English, a language not
known to the detenue, would vitiate her further detention.
...
...
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
____________
https://www.mhc.tn.gov.in/judis
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
nonsupply 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. We find that the above cited Powanammal's case applies in all
force to the case on hand as we find that non-furnishing of translated copy of
the remand order relied on by the Detaining Authority at Page No.65 of the
typed set of papers, in vernacular language, to the detenue, has impaired her
constitutional right to make an effective representation against the impugned
preventive detention order. To be noted, this constitutional right is ingrained
in the form of a safeguard in Clause (5) of Article 22 of the Constitution of
____________
https://www.mhc.tn.gov.in/judis
India. We, therefore, have no hesitation in quashing the impugned detention
order.
7. In the result, the Habeas Corpus Petition is allowed and the
order of detention in B.C.D.F.G.I.S.S.S.V.No.21/2023, dated 31.10.2023,
passed by the second respondent is set aside. The detenue, viz., Sivanammal,
wife of Muthaiah, aged about 38 years, is directed to be released forthwith
unless her detention is required in connection with any other case.
[A.D.J.C., J.] [K.R.S., J.]
17.04.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Collector
and District Magistrate,
Office of the District Collector
and District Magistrate,
Madurai District.
____________
https://www.mhc.tn.gov.in/judis
3.The Superintendent of Prison,
Special Prison for Women,
Madurai District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
____________
https://www.mhc.tn.gov.in/judis
A.D.JAGADISH CHANDIRA, J.
AND
K.RAJASEKAR, J.
krk
17.04.2024
____________
https://www.mhc.tn.gov.in/judis
