Allowed

Malliga v. the Secretary to Government

Madras HC27 Apr 2015HCP/3729/2014

Case brief

AI extract

What is this about?

The High Court allowed a Habeas Corpus petition challenging a detention order under Tamil Nadu Act 14 of 1982. The court held that the failure to supply the detenu with the bail application from a similar case, which formed the basis for the detention, violated Article 22(5) of the Constitution and vitiated the order.

What did the court decide?

Impugned detention order set aside; detenu directed to be released forthwith unless presence required in another case.

Malliga Vs the Secretary to Government — Constitutional and Fundamental Rights | Madras HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 27.04.2015

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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

H.C.P.No.3729/2014

Malliga Petitioner

1.The Secretary to Government

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Home, Prohibition & Excise Department Government of Tamil Nadu,

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Fort St George, Chennai 600 009.

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2.The District Collector & District Magistrate Krishnagiri District, Krishnagiri. .. 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 relating to the 2^nd respondent, pertaining to the detention order made in SC.No.57/2014 dated 20.11.2014 in detaining the detenu under Tamil Nadu Act 14/1982 as Sand Offender, quash the same and direct the respondents to produce the said detenu namely Thiru Murali, son of Munirathinam aged about 40 years who is detained at Central Prison, Salem before this Court and set him at liberty.

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For Petitioner : Mr.I.Abrar Md Abdullah For Respondents : Mr.M.Maharaja, APP

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ORDER

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Challenge is made to the order of detention passed by the second respondent vide Proceedings in SC.No.57/2014 dated 20.11.2014, whereby the detenu/the son of the petitioner herein, by name, Murali, son of Munirathinam, aged 40 years, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "SAND OFFENDER”.

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2.Though many grounds have been raised in the petition, Mr.I.Abrar Md Abdullah, the learned counsel for the petitioner has assailed the impugned detention order only on the ground of nonhttps://hcservices.ecourts.gov.in/hcservices/ supply of copy of the bail application in similar case, referred

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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.4 of the Grounds of Detention that in similar case, the accused Suresh was released on bail by the learned Principal Sessions Judge, Krishnagiri in Crl.MP.No.1770/2014 in respect of the case in Cr.No.139/2014 for the offence u/s.379 IPC r/w 21[1][iv] Mines and Minerals Act and 3 of Tamil Nadu Public Property [Prevention of Damages and Loss] Act on the file of Samalpatti 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 were the documents relied upon by the Detaining Authority to come to a subjective satisfaction that the detenu was likely to be released on bail. Admittedly, such documents have 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.

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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 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 https://hcservices.ecourts.gov.in/hcservices/ violation of Article 22(5) of the Constitution of India

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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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7.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. 10. 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 AP To 1.The Secretary to Government Home, Prohibition & Excise Department Government of Tamil Nadu, Fort St George, Chennai 600 009. 2.The District Collector & District Magistrate Krishnagiri District, Krishnagiri. 3. The Public Prosecutor, High Court, Madras. 4. The Superintendent Central Prison, Salem. 5. The Joint Secretary to Government, Public(Law & order) Fort St. George Chennai-9

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RSY(CO)

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HCP.No.3729/2014

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https://hcservices.ecourts.gov.in/hcservices/ EU 19.05.2015

Malliga v. the Secretary to Government

Case brief

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Malliga v. the Secretary to Government

Case brief

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