Allowed

G.K.Saibaba v. the Secretary to the

Madras HC28 Apr 2015HCP/3135/2014

Case brief

AI extract

What is this about?

Habeas corpus petition challenging a detention order under the TN Prevention of Dangerous Activities Act. The Court held that failing to supply the detenu with a copy of the bail application in a similar case, which formed the basis of the detention decision, vitiated the order and denied the right to make effective representation.

What did the court decide?

Impugned detention order set aside. Detenu directed to be released forthwith unless presence required for any other case.

G.K.Saibaba Vs the Secretary to the — Constitutional and Fundamental Rights | Madras HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 28.04.2015

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CORAM:

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THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND

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THE HONOURABLE MR.JUSTICE B.RAJENDRAN

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H.C.P.No.3135/2014
G.K.Saibaba .. Petitioner
Vs
1.The Secretary to the Government
Home, Prohibition and
Excise Department
Secretariat
Chennai-600 009.
2.The Commissioner of Police
Chennai City. .. Respondents

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Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus calling for the records in Memo No.1606/BDFGISSV/2014, dated 28.10.2014 on the file of the second respondent herein and quash the same and direct the respondents herein to produce the body of petitioner's son Rahul, Male, aged 23 years, Son of Saibaba, now confined in Central Prison, Puzhal-II, Chennai, before this Court and set him at liberty.

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For Petitioner : Mr.S.Senthilvel For Respondents : Mr.M.Maharaja, Additional Public Prosecutor ORDER

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(Order of the Court is made by S.TAMILVANAN,J)

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Challenge is made to the order of detention passed by the second respondent in Memo No.1606/BDFGISSV/2014, dated 28.10.2014, whereby the detenu, viz., petitioner's son Rahul, Male, aged 23 years, Son of Saibaba, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of https://hcservices.ecourts.gov.in/hcservices/ Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral

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Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA”.

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2.Though many grounds have been raised in the petition, Mr.S.Senthilvel, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of nonsupply of copy of the bail application in similar case, referred to in the grounds of detention, for arriving at the subjective satisfaction that there is likelihood of the detenu coming out on bail, which has affected the constitutional right of making an effective and purposeful representation to the authorities concerned, thereby vitiating the detention.

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3.Per contra, Mr.M.Maharaja, the learned Additional Public Prosecutor would submit that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. However, he submitted that the copy of the bail application in similar case, referred to in the grounds of detention was not supplied to the detenu.

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4.We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and thoroughly scanned through the impugned detention order and the entire materials available on record.

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5.It is seen from paragraph No.3 of the Grounds of Detention that in similar case, the accused was released on bail by this Court in Crl.O.P.No. 13843/2009 in respect of the case in Cr.No.301/2009 for the offences under Sections 147, 148, 341 and 302 IPC on the file of R-7 K.K.Nagar Police Station. On a perusal of the Paper Book furnished by the Prosecution, it is seen that it does not contain the copy of the said bail application in similar case. The said bail application filed in similar case was the document relied upon by the Detaining Authority to come to a subjective satisfaction that the detenu was likely to be released on bail. Admittedly, such document has not been supplied to the detenu, as it did not form part of the Paper Book furnished by the Prosecution. Therefore, non-supply of the copy of the bail application in similar case to the detenu would vitiate the impugned detention order. Any bail application moved by the detenu in the ground case or in the adverse cases, necessarily would have to be considered by the Court concerned solely on merits, uninfluenced by the order of this Court.

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6.The Honourable Supreme Court in M.Ahamed Kutty Vs. Union of India and another (1990-2-SCC-1) has observed thus:-

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“7. Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the https://hcservices.ecourts.gov.in/hcservices/

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satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case.” (Emphasis added).”

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This Court in Jarinabegam Vs. State of Tamil Nadu by Secretary to Government, Prohibition and Exercise Department, Chennai and another (2007-1-MLJ-Crl-18) relying upon the decision of the Honourable Supreme Court cited supra has held that non supply of the copy of the bail application in similar case to the detenu has the effect of vitiating the order or detention.

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8.As already analysed by us, in the facts and circumstances of the present case, non-supply of the copy of the bail application in similar case, to the detenu has the effect of vitiating the impugned detention order. Further, due to non-supply of such a vital document, the detenu has lost valuable right to make an effective representation to the authorities concerned.

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In the light of the above said principles laid down by the Honourable Supreme Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed.

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In the result, this Habeas Corpus Petition is allowed. The impugned detention order is set aside. The detenu is directed to be released forthwith, unless his presence is required in connection with any other case.

Sd/-

Assistant Registrar

//True Copy//

Sub Assistant Registrar

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paa

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https://hcservices.ecourts.gov.in/hcservices/

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1.The Secretary to the Government
Home, Prohibition and
Excise Department
Secretariat
Chennai-600 009.
2.The Commissioner of Police
Chennai City.
3.The Superintendent of Central Prison,
Puzhal-II, Chennai.
4.The Joint Secretary to Government,
Public(Law & Order)
Fort St.George, Chennai - 600 009.
5.The Public Prosecutor,
High Court, Chennai.
H.C.P.No.3135/2014
jsv(co)
pmk.22.5.2015

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https://hcservices.ecourts.gov.in/hcservices/

G.K.Saibaba v. the Secretary to the

Case brief

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G.K.Saibaba v. the Secretary to the

Case brief

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