Madras High Court
Suganya vs The Secretary To Government on 16 August, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
HCP.No.1207 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
H.C.P.No.1207 of 2024
Suganya ... Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
2.The District Collector & District Magistrate,
Cuddalore District, Cuddalore.
3.The Superintendent of Police,
Cuddalore District, Cuddalore.
4.The Superintendent of Prison,
Central Prison, Cuddalore.
5.The Inspector of Police,
Pudupettai Police Station,
Cuddalore District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus, to call for the records in connection with the order of
Detention passed by the second respondent dated 15.05.2024 in
C3/D.O.No.41/2024 against the petitioner husband Kamalraj, Male aged 33
years S/o.Arumugam, who is confined at Central prison, Cuddalore and set
aside the same and direct the respondents to produce the detenue before the
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Page 1 of 8
HCP.No.1207 of 2024
Court and set him at liberty.
For Petitioner : Mr.D.Balaji
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.)
The order of detention passed by the 2nd respondent in proceedings
C3/D.O.No.41/2024, dated 15.05.2024 is sought to be quashed in the present
Habeas Corpus Petition.
2.The Government Order furnished to the detenue has not been translated.
Even certain immaterial documents, if supplied to the detenue, the said
documents must be translated in the language known to the detenue. After
supply of documents, the State cannot plead that such documents are immaterial
for passing detention order. Such stand would result in drawing an inference that
the Authorities have not applied their mind while passing the detention order.
Therefore, it is made clear that all the required documents ought to be supplied
to the detenue and supplied the documents must be translated in the language
known to the detenue, enabling him to submit effective representation.
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3.The principle in this regard has been considered by the Hon'ble
Supreme Court of India in the case of E.Subbulakshmi Vs. State of Tamil
Nadu reported in [2017 1 SCC 757]. The relevant portion of the judgment is
extracted herein under,
“From the plain language of the impugned detention
order, it is seen that the stated Government Order dated 18th
October, 2015 is an order issued by the State Government
authorizing or delegating power to the Commissioner of
Police, Chennai, to issue order under Section 3(2) of the Act
of 1982. The question is, whether it was mandatory for the
Detaining Authority to supply copy of this Government order
to the detenu. The order having been issued in exercise of
powers conferred under Section 3(1) of the Act of 1982 and
being a statutory order has nothing to do with the grounds of
detention. What is imperative is to supply all the documents
which are relied upon by the Detaining Authority for forming
subjective satisfaction for the purposes of Article 22(5) of the
Constitution of India. The Government order, however, is
regarding the delegation of power to the Commissioner of
Police to issue detention order. The validity of that order has
not been challenged by the petitioner. In other words, the
power of the Commissioner of Police, Greater Chennai
Police, Chennai to pass a detention order, is not put in issue.
The said Government order is not relevant for forming
subjective satisfaction by the Detaining Authority. The
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grounds of detention are about the prejudicial activities in
which the detenu had indulged in the past; or in the view of
the Detaining Authority the detenu has the propensity to
indulge in similar prejudicial activities even in future. That is
the quintessence for exercising power to detain any person.
Suffice it to observe that the subject document, not being a
relied upon document in the grounds of detention or for
forming subjective satisfaction by the Detaining Authority,
failure to furnish copy thereof to the detenu does not vitiate
the action taken by the Detaining Authority nor the continued
detention of the detenu. In our opinion, even this submission
is devoid of merits.”
4.The learned Additional Public Prosecutor appearing for the respondents
would submit that on some occasion, the Government Order though not
considered as a required document is furnished to the detenue. Such immaterial
documents produced by itself cannot constitute a ground to quash the detention
order.
5.We are in agreement with such proposition stated by the learned
Additional Public Prosecutor. However, the discretion requirement is that,
furnishing of an immaterial document is one aspect and non translation of the
documents served on the detenue is the other aspect of the matter. Once the
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Government Order is served on the detenue, then such order must be served in
the language known to the detenue. He cannot be put in dark about the
documents and in such circumstances, he may not be able to verify whether the
Government Order served on him is material or immaterial. Detenue cannot be
in doubtful circumstances about any document served on him along with the
detention order.
6.That apart, when the Detaining Authority is of the opinion that the
Government Order or any other document is immaterial and need not be served
on the detenue and if those documents are served him, there is a possibility of
drawing an factual inference that the Detaining Authority has not applied his
mind, while serving the required documents to the detenue. In either way, the
ground goes is in favour of the detenue and not in favour of the State.
7.In view of the fact that Article 22 of the Constitution of India stipulates
the conditions while invoking preventive detention laws. Since the preventive
detention laws must be in consonance with the Article 21 and 22 of Constitution
of India, the fundamental rights enshrined under the Constitution to a citizen
cannot be tinkered merely by stating that the documents served on the petitioner
is unnecessary and therefore, no translated version is required. Such argument
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made by the learned Additional Public Prosecutor itself is devoid of merits.
8. Hence, for the aforesaid reason, the detention order passed by the
second respondent in proceedings C3/D.O.No.41/2024, dated 15.05.2024 is
quashed and the Habeas Corpus Petition is allowed. The detenue viz.,
Kamalraj, Male aged 33 years S/o.Arumugam, who is confined at Central
prison, Cuddalore, is directed to be set at liberty forthwith, unless he is required
in connection with any other case.
[S.M.S., J.] [V.S.G., J.]
16.08.2024
Index: Yes/No
Internet:Yes/No
Neutral Citation: Yes/No
gd
To
Rep. by its Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai, Chennai.
3.The Inspector of Police,
F-2, Egmore Police Station, Chennai.
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4.The Superintendent,
Central Prison, Puzhal, Chennai.
5.The Public Prosecutor,
Madras High Court.
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S.M.SUBRAMANIAM, J.
AND
V.SIVAGNANAM, J.
gd
16.08.2024
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