BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04/08/2009
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms.JUSTICE R.MALA
H.C.P.(MD)No.204 of 2009
Sangeetha ... Petitioner
vs.
1.State of Tamil Nadu,
Rep. by its
Secretary to Government,
Home, Prohibition & Excise
(XVI) Department,
Fort St. George,
Chennai - 600 009.
2.The District Collector & District
Magistrate,
Trichirappalli District,
Trichirappalli.
3.The Superintendent of Prison,
Tiruchirappalli Central Prison,
Tiruchirappalli.
4.The Secretary,
Advisory Board,
32, Rajaji Salai,
Singaravelar Malihai,
Chennai - 600 001. ... Respondents
Prayer
Petition under Article 226 of the Constitution of India praying for
issuance of a Writ of Habeas Corpus calling for the entire records connected
with the detention order of the Respondent No.2 in Cr.M.P.No.22/2009 dated
19.03.2009 and quash the same and direct the respondents to produce the body and
person of the petitioner's husband by name Mahamuni, aged about 25 years son of
Sannsi, now confined at Trichirappalli Central Prison before this Court and set
him at liberty forthwith.
!For Petitioner ... Mr.R.Alagumani
^For Respondents ... Mr.P.N.Pandithurai, A.P.P.
:ORDER
R.MALA,J.
In this Habeas Corpus Petition, wife of the detenu challenges the
order passed by the 2nd Respondent, whereby the Detenu was detained branding him
as a "Goonda" as contemplated under Section 2(f) of the Tamil Prevention of
Dangerous Activities of Book-leggers, Drug Offenders, Forest Offenders, Goondas,
Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act,
1982 (in short "Tamil Nadu Act 14/1982).
2.Based on the recommendations made by the Sponsoring Authority that the
Detenu was involved in three adverse cases, as detailed below,
Sl.NO. Police Station and Crime No. Section of law
1 Musiri P.S.Cr.No.437/2006 U/s.454, 380 IPC
2 Musiri P.S.Cr.No.09/2007 U/s.379 IPC
3 Musiri P.S.Cr.No.92/2009 U/s.394 IPC
The ground case in crime No.92/2009 under Section 394 IPC on the file of Musiri
P.S. was registered on the complaint given by one Neelamegham S/O.Ramasami
Pillai, alleging that on 07.02.2009, at about 22.15 hours, when he proceeded to
his house from his tiffin stall with a cycle along his friend Natesan, while he
was going near Santhi school at Thathengarper one unidentified person
threatened him to stop his cycle, but Neelamegham instructed his friend Natesan
to proceed further and then, the accused by name Mahamuni chased them and kicked
the cycle and Neelamegham fell on the road and the accused pulled his shirt and
slapped on his cheek and uttering the words "kfhKdpA;fw Bgiu Bfl;lh
fPHre;ijghisak; vd;d KrpwpBa myWk; mg;goapUf;f ne;j kfhKdp brhd;dh irf;fpis
epg;ghl;lhk Bghapl;oUf;f" and again slapped on his cheek and later he threatened
Neelamegham demanded money for consuming liquor, but he refused to pay the
amount. It was further stated in the complaint that again Mahamuni threatened
him by uttering words "vj;jidg; Bgiug; ghh;j;jpUf;Bfd;. vj;jid thl;o b$apYf;F
BghapUf;Bfd; bjhpa[kh vk; BgU Bf.o. yp!;l;oBy nUf;F" and wilfully put his hand
in his shirt pocket and robbed a sum of Rs.485 and ran away. On being satisfied
that the Detenu has acted in a manner prejudicial to the maintenance of public
order committing crime of threatening the public on the point of deadly weapon
and branding him as a "Goonda" as contemplated under Section 2(f) of the Tamil
Prevention of Dangerous Activities of Book-leggers, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and
Video Pirates Act, 1982 (in short "Tamil Nadu Act 14/1982).
3. The learned counsel for the petitioner would advance his arguments and
prayed for quashing the detention order in following three grounds:
(i) The representation dated 28.03.2009 submitted by the petitioner was
not considered by the detaining authority.
(ii) The detaining authority filed to forward the representation dated
28.03.2009 of the petitioner.
(iii) Even though the petitioner sought for a copy of remand extension
order, the same has not been furnished.
4. The learned counsel for the petitioner would contend that the
petitioner was branded as Goonda and the detention order has been passed on
19.03.2009. He further submit that the petitioner, wife of the detenu sent a
representation on 28.03.2009 and as per paragraph No.6 of the grounds of
detention, the petitioner sent the representation within 12 days from the date
of detention order, but the same has not been considered by the detaining
authority and hence, he prayed for the quashing of detention order.
5. The learned Additional Public Prosecutor would contend that the
representation of the petitioner dated 28.03.2009 has been received on
30.03.2009 and it has been considered and rejected on 02.04.2009 and the same
was served on the respondents on 03.04.2009 and hence the representation of the
petitioner has been properly considered and he prayed for the dismissal of the
habeas corpus petition.
6. While considering the arguments and perusal of the records placed
before us, it has clearly proved that the representation dated 28.03.2009 of the
petitioner has been received by the detaining authority on 30.03.2009 and the
detaining authority has considered the matter on 02.04.2009 and sent the
rejection letter to the petitioner on 03.04.2009. In the above said
circumstances, we are of the considered opinion that the first ground advanced
by the learned counsel for the petitioner that the representation dated
28.03.2009 submitted by the petitioner was not considered by the detaining
authority is not sufficient to quash the detention order.
7. The learned counsel for the petitioner further contended that in the
representation dated 28.03.2009, in paragraph No.8, it was stated that the
petitioner had made a request to place the matter before the Secretary to
Government, Home, Prohibition & Excise(XVI) Department, Fort St. George, Chennai
- 600 009, but the same has not done. He further contended that the date of
approval is 30.03.2009 and after the approval, the detaining authority has no
right to consider the representation of the petition and on this ground, the
learned counsel for the petitioner prayed for the quashing of detention order.
To substantiate his case, he relied upon the decision reported in 2006-1-
L.W.(Crl.) 369 (Rajeswari Vs. The Secretary to Government, Prohibition and
Excise Department, Fort St. George, Chennai and another).
8. The learned Additional Public Prosecutor would contend that it is
true, the date of detention order is 19.03.2009 and the date of approval is
30.03.2009, but the same has been received by the detaining authority only on
08.04.2009. He further urged that the detaining authority has received the
representation of the petitioner on 30.03.2009 and he dealt with the matter on
02.04.2009 and in the above said circumstances, he had no knowledge about the
date of approval and the decision relied upon by the petitioner is not
applicable to the facts of this case and he prayed for the dismissal of habeas
corpus petition.
9. While considering the arguments of both sides counsel and perused the
decision relied upon by the petitioner, it is an admitted fact that the
detention order has been passed on 19.03.2009 and the date of approval is
30.03.2009. On perusal of records, the approval has been received by the
detaining authority only on 08.04.2009. But, before he received the approval
communication from the State Government, he received the representation from the
petitioner on 30.03.2009 and he considered the same on 02.04.2009 and sent the
rejection letter on 03.04.2009. In the above said circumstances, the arguments
advanced by the learned counsel for the petitioner does not merit acceptance.
10. In the decision reported in 2006-1-L.W.(Crl.) 369 (Rajeswari Vs. The
Secretary to Government, Prohibition and Excise Department, Fort St. George,
Chennai and another), it was mentioned that the detention order has been passed
on 07.11.2005 and the Government approved the detention order on 18.11.2005 and
the District Collector has received the representation on 21.11.2005 and it is
but proper on his part to forward the same to the government, since after
approval of the detention order by the Government, he has also no power to pass
an order on the representation. But, here, as already discussed, the detention
order has been passed on 19.03.2009 and approved on 30.03.2009, the same has
been received by the detaining authority only on 08.04.2009, but before that he
received the representation on 30.03.2009 and considered the same on 02.04.2009
and he sent the rejection order on 03.04.2009. Therefore, we do not think that
the ratio of the said Division Bench cannot have show readily apply to the facts
of this case.
11. Further more, the representation was only addressed to the detaining
authority. But, the detaining authority received the representation and
considered the same before he got approval order from the Government. So, we
are of the considered opinion that the second ground advance by the learned
counsel for the petitioner that the detaining authority filed to forward the
representation dated 28.03.2009 of the petitioner is also not sufficient to
quash the detention order.
12. The learned counsel appearing for the petitioner would contend that in
the ground case i.e. crime No.92/2009 under Section 394 IPC on the file of the
Musiri P.S., alleged to be taken place on 07.02.2009 at 22.15 hours and the
accused was arrested and remanded to judicial custody on 08.02.2009 till
20.02.2009. He further urged that the remand period was extended upto
06.03.2009 and again extended upto 20.03.2009. But, the detention order was
passed on 19.03.2009, but the remand extension report has not been furnished.
The learned counsel for the petitioner would also submit that the petitioner, in
paragraph No.5 of her representation, had made a request for furnishing the copy
of remand extension report and she further stated that the remand extension
order dated 20.02.2009 to 20.03.2009, were not found place in the booklet and
she requested the copy of the same and without the said document she was unable
to make her representation and the learned counsel prayed for quashing the
detention order.
13. The learned Additional Public Prosecutor has vehemently opposed the
above said contention stating that the sponsoring authority has furnished the
memo given by the jail authority in page No.72 of booklet in respect of the
detenu's remand extension particulars and the same has also been considered by
the detaining authority and after substantive satisfaction, the detaining
authority has passed the detention order and he prayed for the dismissal of the
habeas corpus petition.
14. While considering the arguments of both sides counsels, the ground
case has been registered in Musiri P.S. Crime No.92 of 2009 under Section 394
IPC and the occurrence has been alleged to be taken place on 07.02.2009 midnight
and the accused/detenu was arrested on that date itself and he was produced
before the Judicial Magistrate on 08.02.2009. The learned Judicial Magistrate
made an endorsement in the remand extension report that the accused produced,
age verified, ground of arrest explained, accused has no complaint against the
police, remand extended to 20.02.2009.
15. In this case, the detention order passed only on 19.03.2009. In
between, the remand was extended on 20.02.2009 to 06.03.2009 and again
06.03.2009 to 20.03.2009. But, except the above said memo, no remand extension
order has been found place in the booklet, which was furnished by the
respondents. Even though, it is true that the petitioner herein made a request
to furnish the same, it was not furnished to her.
16. At this juncture, the learned counsel appearing for the petitioner has
taking upon us on the decision of Full Bench decision of this Court reported in
2007(5) CTC 657 (Full Bench) (G.Kalaiselvi Vs. The State of Tamil Nadu, rep. by
Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department,
Fort St. George, Chennai - 600 009 and one another), wherein, it was stated as
follows:
"21. Law is well settled that the Detaining Authority is required to give
copies of the relied upon documents along with grounds of detention and non-
furnishing of relied upon document has the effect of vitiating the order of
detention. See Pownammal V. State of Tamil Nadu and another, 1999 SCC (Crl.)
231. Where, however, a document is not relied upon, yet the detenu asks for
copy of such document, which is either referred to or has got some bearing, it
is the duty of the appropriate authority to furnish such co[y or atleast
indicate the reason why such copy is not supplied to the detenu in spite of
specific request by the detenu. As already indicated, where a document asked
for is on the face of it irrelevant, non-furnishing of such document is
immaterial. where, however, the document has got some relevance, refusal of
supply such copy, in spite of specific request, without any valid reason, may
have the effect of vitiating the order of detention as the detenu is likely to
be prejudiced, inasmuch as he would not be in a position to make an effect
representation.
22.In the present case, in our opinion, when the detenu specifically asked
for a copy of the remand order dated 30.03.2007, the appropriate authority
should have either furnished copy of such order or furnished sufficient reasons
as to why such order could not be furnished. On this ground, the order of
detention is liable to be quashed."
While considering the above citation, even though the document is not relied
upon by the detaining authority, yet the petitioner asks for copy of such
document, which is either referred to or has got some bearing, it is the duty of
the appropriate authority to furnish such copy or atleast indicate the reason
why such copy is not supplied to the detenu in spite of specific request made by
her. Here also, without any reply has been given, the representation has been
rejected.
17. In such circumstances, as per the decision stated earlier, we are of
the considered opinion that non furnishing of remand extension order requested
by the petitioner is a valid ground for quashing the detention order. The
detaining authority should have furnished the copy of remand extension order
from 20.02.2009 to 20.03.2009 or should have furnished sufficient reason as to
why such copy of order cannot be furnished and on this ground alone, the
detention order is liable to be quashed.
18. Accordingly, the Habeas Corpus Petition is allowed and the impugned
order of detention in Cr.M.P.No.22/2009 dated 19.03.2009, is quashed. The
Detenu is directed to be released forthwith, unless his presence is required, in
accordance with law, in connection with any other case.
arul
To:
1.The Secretary to Government,
Home, Prohibition & Excise
(XVI) Department,
Fort St. George,
Chennai - 600 009.
2.The District Collector & District
Magistrate,
Trichirappalli District,
Trichirappalli.
3.The Superintendent of Prison,
Tiruchirappalli Central Prison,
Tiruchirappalli.
4.The Secretary,
Advisory Board,
32, Rajaji Salai,
Singaravelar Malihai,
Chennai - 600 001.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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