Madras High Court
S.Rathina vs The State Rep. By on 9 September, 2024
Author: C.V. Karthikeyan
Bench: C.V. Karthikeyan, J.Sathya Narayana Prasad
H.C.P.(MD) No.700 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN
and
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
H.C.P.(MD) No.700 of 2024
S.Rathina ... Petitioner/Wife of the detenu
Vs.
1.The State rep. by
The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2.The District Collector and District Magistrate,
Toothukudi District,
Toothukudi.
3.The Superintendent of Prison,
Palayamkottai Central Prison,
Tirunelveli District.
4.The Inspector of Police,
PEW-Thoothukudi Police Station,
Thoothukudi District. ... Respondents
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H.C.P.(MD) No.700 of 2024
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus to call for the records in H.S.
(M)Confdl.No.127/2023, dated 26.09.2023, on the file of the second
respondent herein and set aside the same and direct the respondents herein
to produce the detenu Saravanan, son of Muthukrishnan, aged about 45
years, who has been termed as “Drug Offender” now confined in Central
Prison, Palayamkottai, before this Court and set the detenu at liberty.
For Petitioner : Mr.D.Selvanayagam
For Respondents : Mr.S.Ravi
Additional Public Prosecutor
ORDER
The petitioner is the wife of the detenu viz., Saravanan, son
of Muthukrishnan, aged about 45 years. The detenu has been detained by
the second respondent by his order in H.S.(M)Confdl.No.127/2023, dated
26.09.2023 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.
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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.
3. The detenue was the 16th accused in FIR in Crime No.584
of 2023 registered by the PEW Police Station, Thoothukudi, under
Sections 8(c), 20(b)(ii)(c), 25 and 29(1) of Narcotic Drugs and
Psychotropic Substances Act, 1985.
4. We are conscious of the fact that this is the second Habeas
Corpus Petition filed by the petitioner herein. Earlier, a petition filed in
H.C.P. (MD) No.1248 of 2023 had been dismissed by a Coordinate
Division Bench of this Court by order dated 22.03.2024.
5. Mr.S.Ravi, learned Additional Public Prosecutor had
placed reliance on (i) the judgment reported in 2006 (2) MLJ (Crl) 699,
Geetha -vs- State of Tamil Nadu, rep. by Secretary to Government and
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another, for the proposition that a detenue cannot raise second Habeas
Corpus Petition, a point which was available but not raised during the
hearing of the first Habeas Corpus Petition and (ii) the judgment reported
in 2009 (2) CIJ 197, Mohan @ Mohan Reddy -vs- Commissioner of
Police and another, for the proposition that a second Habeas Corpus
Petition can be filed only on new grounds that were not available at the
time when the first Habeas Corpus Petition was dismissed.
6. It had been however held by the Hon'ble Supreme Court
that there is no bar in filing a second Habeas Corpus Petition. It had also
been held that the earlier order will not act as res judicata. The Hon'ble
Supreme Court of India in Ghulam Sarwar -vs- Union of India and
others, [reported in AIR 1967 SC 1335], in paragraph No.9, had observed
as follows:-
“.... in India the person detained can file
original petition for enforcement of his
fundamental right to liberty before a court other
than the High Court, namely, this Court. The
order of the High Court in the said writ is not
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res judicata as held by the English and the
American Courts either because it is not a
judgment or because the principle of res
judicata is not applicable to a fundamentally
lawless order. If the doctrine of res judicata is
attracted to an application for a writ of habeas
corpus, there is no reason why the principle of
constructive res judicata cannot also govern the
said application, for the rule of constructive res
judicata is only a part of the general principles
of the law of res judicata, and if that be applied,
the scope of the liberty of an individual will be
considerably narrowed. The present case
illustrates the position. Before the High Court
the petitioner did not question the constitutional
validity of the President's order made under
Article 359 of the Constitution. If the doctrine
of constructive res judicata be applied, this
Court, though it is enjoined by the Constitution
to protect the right of a person illegally
detained, will become powerless to do so. That
would be whittling down the wide sweep of the
constitutional protection.”
[Emphasis Supplied]
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7. Though several points have been raised by the learned
counsel for the petitioner, it is stated that the detention order is liable to be
quashed on the ground that the detenu was furnished with illegible copy
of the 'Remand Order' relied on by the Detaining Authority, more
particularly at Page No.329 of the booklet. Hence, it is submitted that the
detenu was deprived of making effective representation.
8. On a perusal of the Booklet, it is seen that Page No.329 of
the Booklet, which is the 'Remand Order', furnished to the detenu, is
illegible. This furnishing of illegible copy of the vital document would
deprive the detenu of making effective representation to the authorities
against the order of detention.
9. 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
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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:
''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
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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.''
10. We find that the above cited Powanammal's case applies
in all force to the case on hand as we find that the Remand Order made by
the authority concerned, which is available at Page No.329 of the Booklet
is illegible and non-furnishing of legible copy of the document relied on
by the Detaining Authority at Page No.329 of the Booklet 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
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Article 22 of the Constitution of India. We, therefore, have no hesitation
in quashing the impugned detention order.
11. In the result, the Habeas Corpus Petition is allowed and
the order of detention in H.S.(M)Confdl.No.127/2023, dated 26.09.2023,
passed by the second respondent is set aside. The detenu, viz., Saravanan,
son of Muthukrishnan, aged about 45 years, is directed to be released
forthwith unless his detention is required in connection with any other
case.
[C.V.K., J.] [J.S.N.P., J.]
09.09.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
RM
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To:
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2.The District Collector and District Magistrate,
Toothukudi District,
Toothukudi.
3.The Superintendent of Prison,
Palayamkottai Central Prison,
Tirunelveli District.
4.The Inspector of Police,
PEW-Thoothukudi Police Station,
Thoothukudi District.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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C.V. KARTHIKEYAN, J.
AND
J.SATHYA NARAYANA PRASAD, J.
RM
(1/2)
09.09.2024
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