Madras High Court
M.Eswari vs The Government Of Tamil Nadu on 11 September, 2024
Author: C.V. Karthikeyan
Bench: C.V. Karthikeyan, J.Sathya Narayana Prasad
H.C.P.(MD) No.428 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN
AND
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
H.C.P.(MD) No.428 of 2024
M.Eswari ... Petitioner
-Vs-
1.The Government of Tamil Nadu
Rep. by its the Principal Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Magistrate and District Collector,
Theni District, Theni
3.The Superintendent,
Central Prison, Madurai
Madurai, 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 records pertaining to the proceedings of the
second respondent made in detention order No.14 of 2024 dated 14.03.2024 and
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H.C.P.(MD) No.428 of 2024
quash the same and set petitioner's husband by name Manikandan, S/o.
Palanichamy, aged about 26 years at liberty from the third respondent.
For Petitioner : Mr.K. Prabakaran
For Respondents : Mr.S.Ravi
Additional Public Prosecutor
ORDER
The petitioner is wife of the detenue namely, Manikandan,
S/o. Palanichamy, who is aged about 26 years. The detenu has been detained by
the second respondent by his Detention Order No. 14 of 2024 dated 14.03.2024,
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 not
furnished with remand order relied on by him. This deprived the detenu from
making effective representation. Therefore, on these 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 , it is clear that the remand order
has not 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 remand order itself was not furnished
to the detenue. This non furnishing of initial remand order 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.
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7. In the result, the Habeas Corpus Petition is allowed and the order of
detention in detention order No.14 of 2024 dated 14.03.2024, passed by the
second respondent is set aside. The detenu, viz., Manikandan, S/o. Palanichamy,
aged about 26 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.]
11.09.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
aav
To:
1.The Principal Secretary to Government,
Government of Tamil Nadu
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Magistrate and District Collector,
Theni District, Theni
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3.The Superintendent,
Central Prison, Madurai
Madurai, Madurai District
4.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.
aav
11.09.2024
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