Madras High Court
G.Mala vs The Principal Secretary To Government on 16 October, 2024
Author: C.V. Karthikeyan
Bench: C.V. Karthikeyan
H.C.P.(MD) No.1148 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :16.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
H.C.P.(MD) No.1148 of 2024
G.Mala ... Petitioner / wife of the Detenue
-Vs-
1.The Principal Secretary to Government,
Government of Tamil Nadu,
Prohibition and Excise Department,
Secretariat, George Fort, Chennai -600 009.
2.The District Collector and District Magistrate
Tenkasi District, Tenkasi.
3. The Superintendent of Central Prison,
Madurai Central Prison
Madurai. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus calling for the records on the file of the second
respondent in M.H.S.Confdl No.5 of 2024 dated 18.01.2024 and set aside the
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H.C.P.(MD) No.1148 of 2024
order of detention passed therein; direct the respondents to produce the detenue
by name Gopi aged 29 years son of Senthurpandi(the detenue) before this Court
now detained at Central Prison,Madurai and set him at liberty forthwith.
For Petitioner : Mr.J.William Christopher
For Respondents : Mr.S.Ravi
Additional Public Prosecutor
ORDER
The petitioner, wife of the detenue namely, Gopi, son of Senthurpandi,
aged 29 years . The detenu has been detained by the second respondent by his
order in M.H.S.Confdl No.5 of 2024 dated 18.01.2024 , holding him 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.
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3. Though the learned counsel for the petitioner has raised several other
grounds to assail the order of detention, he has mainly focused his argument on
the ground that the detaining authority, while detaining the detenu, has been given
with the wrong translation of the remand order passed by the learned Magistrate
relied on by him. This deprived the detenu from making effective representation.
Therefore, on this ground, the detention order is liable to be quashed.
4. On consideration of the submissions made on either side and upon
perusal of the documents available on record of the booklet, it is clear that the
wrong translation of the remand order has been furnished to the detenue. Thus
the impugned detention order is liable to be set aside on this ground.
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 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
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material in the language which can be understood by the detenu, is imperative.
The relevant portion of the said decision is extracted hereunder:
''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 language
known to and understood by the detenu, should the document be
in a different language.
...
...
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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 the wrong translation of the remand
order was furnished to the detenue. This non furnishing of remand order in the
translated version to the detenu, has impaired his 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 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 M.H.S.Confdl No.5 of 2024 dated 18.01.2024 , passed by the second
respondent is set aside. The detenu, viz., Gopi, son of Senthurpandi, aged 29
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years , is directed to be released forthwith unless his detention is required in
connection with any other case.
[C.V.K., J.] & [R.P., J.]
16.10.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
aav
To:
1.The Principal Secretary to Government,
Government of Tamil Nadu,
Prohibition and Excise Department,
Secretariat, George Fort, Chennai -600 009.
2.The District Collector and District Magistrate
Tenkasi District, Tenkasi.
3. The Superintendent of Central Prison,
Madurai Central Prison
Madurai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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C.V. KARTHIKEYAN, J.
AND
R.POORNIMA, J.
aav
16.10.2024
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