Senthil Kumar (a) Senthil v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 6.1.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANHabeas Corpus Petition No.1044 of 2008Senthil Kumar (a) Senthil ...PetitionerVs.1. State of Tamil Nadu, rep.by its Secretary to Government, Home Prohibition and Excise Department, Fort St.George, Chennai-600009.2. The Commissioner of Police, Chennai Police, Chennai. ...RespondentsHabeas Corpus Petition filed under Article 226 of theConstitution of India, praying to call for the entire records,related to petitioner's detention under the Tamil Nadu Act 14 of1982, vide detention order dated 26.6.2008 on the file of thesecond respondent herein made in proceedings No.169/2008, quash thesame as illegal and consequently direct the respondent herein toproduce the said petitioner namely Senthil Kumar (a) Senthil son ofManickam, aged 32, before this Court and set him at liberty fromdetention now detained in Central Prison, Puzhal, Chennai-66.For Petitioner : Mr.R.Sankarasubbu for Mr.C.C.ChellappanFor Respondents : Mr.N.R.Elango, APPO R D E RELIPE DHARMA RAO, J.The petitioner, who has been detained as 'Immoral TrafficOffender' under Section 3(1) of the Tamil Nadu Prevention of https://hcservices.ecourts.gov.in/hcservices/ Dangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982),has filed this Habeas Corpus Petition, praying to quash thedetention order and set him at liberty. 2. It is alleged that the petitioner, under the guise ofgetting good employment in the export company for good salary,brought poor and innocent girls from Andhra Pradesh with hisassociates and by keeping them in a locked house, induced andforced them to indulge in prostitution business and also took out ahouse for rent and is living on the earnings of prostitution.3. Against the detenu/petitioner besides the ground case, anadverse case has also been reported. Both the adverse case and theground case are registered for the offences punishable underSections 3(2)(a), 4(1), 5(1)(a), 6(1) and 7(1) of the ImmoralTraffic Prevention Act. 4. Heard Mr.R.Sankarasubbu for the petitioner andMr.N.R.Elango, Additional Public Prosecutor for the State.5. The detention order has been challenged on various grounds.The main ground of attack to the detention order byMr.R.Sankarasubbu, learned counsel appearing for the petitioner, isthat in the grounds of detention, the detaining authority hasstated that in the ground case registered in Cr.No.72/2008 of theAnti Vice Squad Police Station, the Police have rescued a girlnamely Devaki @ Mownika Devi, who was kept in a locked room, andproduced her before the VI Metropolitan Magistrate Court, Egmore,Chennai and while the accused/petitioner was remanded to judicialcustody till 27.6.2008, the rescued girl Devaki @ Mownika Devi wassent to Government Home, Mylapore, but the respondent Police havenot furnished the copy of the order passed by the VI MetropolitanMagistrate, Egmore, Chennai to the detenu to show that the saidgirl was produced before the Court and sent to the Government Home,Mylapore, Chennai. It has further been submitted on the part ofthe petitioner that he has specifically requested the firstrespondent in his representation dated 5.7.2008 to furnish him thecopy of the order passed by the VI Metropolitan Magistrate, Egmore,Chennai in the ground case in Cr.No.72/2008, in respect ofproduction of the said girl Devaki @ Mownika Devi before the Courtin the above said case, but the same has not been furnished to himtill date and there is no explanation, whatsoever, offered on thepart of the respondents, for non-supply of the said document to thedetenu, which has prevented the detenu from making an effectiverepresentation.6. It has further been argued on the part of the petitionerthat in the 161 Cr.P.C. statement said to have been recorded from https://hcservices.ecourts.gov.in/hcservices/ Devaki @ Mownika, there was no signature of her's and the specialreport is signed by the Inspector. 7. On the part of the respondents, Mr.N.R.Elango, the learnedAdditional Public Prosecutor, would submit that the document, whichhas been sought for by the petitioner/detenu is not at all animportant document and non-supply of the same to the detenu willnot vitiate the order of detention. The learned Additional PublicProsecutor would further submit that liberty of an individual hasto be subordinated, within reasonable bounds, to the common good ofthe people and the interference of the Court to the orders ofdetention must be an exception rather than the rule. In support ofhis contentions, the learned Additional Public Prosecutor wouldrely on a judgment of the Honourable Apex Court in STATE OFMAHARASHTRA AND OTHERS vs. BHAURAO PUNJABRAO GAWANDE [(2008) 2 SCC(Cri) 128], wherein it has been held:"The Court must be conscious and mindful of the fact thatthe jurisdiction to order preventive detention is a"suspicious jurisdiction" i.e. Jurisdiction based onsuspicion and an action is taken "with a view topreventing" a person from acting in any mannerprejudicial to certain activities enumerated in therelevant detention law. Interference by a court of lawat that stage must be an exception rather than the ruleand such an exercise can be undertaken by a writ courtwith extreme care, caution and circumspection. A detenucannot ordinarily seek a writ of mandamus if he does notsurrender and is not served with an order of detentionand the grounds in support of such order.""Liberty of an individual has to be subordinated, withinreasonable bounds, to the good of the people. Theframers of the Constitution were conscious of thepractical need of preventive detention with a view tostriking a just and delicate balance between need andnecessity to preserve individual liberty and personalfreedom on the one hand and security and safety of thecountry and interest of the society on the other hand.Security of State, maintenance of public order andservices essential to the community, prevention ofsmuggling and black-marketing activities, etc. demandeffective safeguards in the larger interests ofsustenance of a peaceful democratic way of life.""In considering and interpreting preventive detentionlaws, courts ought to show greatest concern and solitudein upholding and safeguarding the fundamental right ofliberty of the citizen, however, without forgetting thehistorical background in which the necessity – an unhappy https://hcservices.ecourts.gov.in/hcservices/ necessity – was felt by the makers of the Constitution inincorporating provisions of preventive detention in theConstitution itself. While no doubt it is the duty ofthe court to safeguard against any encroachment on thelife and liberty of individuals, at the same time theauthorities who have the responsibility to discharge thefunctions vested in them under the law of the countryshould not be impeded or interfered with withoutjustification."8. On the other hand, the learned counsel appearing for thepetitioner, insisting on the point that non-supply of the documentswhich are having direct bearing on the detention order, wouldvitiate the order of detention, has relied upon a judgment of theHonourable Apex Court in UNION OF INDIA vs. RANU BHANDARI [2008 (6)Supreme 601], wherein it has been held that 'on account of the non-supply of the documents, detenu prevented from making an effectiverepresentation against his detention.' 9. The specific stand of the respondents is that in the groundcase, the Police have rescued a girl by name Devaki @ Mownika, whowas kept in a locked room at the time of arrest of the detenu andshe was also produced before the learned VI MetropolitanMagistrate, Egmore, Chennai, who sent her to Government Home,Mylapore, Chennai. When the allegation is that the petitioner hasinduced innocent, poor girls to indulge in prostitution and alsoforced them into the flesh-trade, not only the fact of rescuing agirl, who is alleged to be in the illegal custody of thepetitioner, but also the order passed by the Magistrate, whilesending her to the Government Home, after enquiring her, attainsvital importance and there cannot be any doubt that such documentis a vital document and the detaining authority ought to havesupplied the copy of such a document to the detenu. However, inspite of request of the petitioner, no such document has beenfurnished to him and there is no explanation offered on the part ofthe respondents, as to why they have not furnished the copy of thesaid document to the detenu. The non-supply of copy of such avital document has prevented the detenu from making an effectiverepresentation to the authorities concerned.10. True, individual liberty is subordinate to the common goodof the people, as has been held by the Honourable Apex Court inBhaurao Punjabrao Gawande case (supra), cited by the learnedAdditional Public Prosecutor. But, if, while passing the order ofdetention, the basic principles are not adhered to by theauthorities, thus depriving the detenu from making effectiverepresentation to the authorities, the same will vitiate the orderof detention, as has been held by the Honourable Apex Court in itssubsequent and latest judgment in Ranu Bhandari's case (supra),cited by the learned counsel for the petitioner. https://hcservices.ecourts.gov.in/hcservices/

11. When the materials placed on record would show that thedetenu was prevented from making an effective representationagainst his detention, the impugned order of detention would getvitiated on this ground.12. The other ground on which much reliance has been placed onthe part of the petitioner is that the initial arrest of thepetitioner was not informed to his family members and with regardto the arrest information, the respondent Police have furnished atelegram in the booklet, but the same is not a certified copy andthe police have not furnished a telegram receipt and, therefore, onthis ground also, the order of detention gets vitiated.13. For this, no explanation, much less a satisfactory one, iscoming forth from the respondents except arguing that the arresthas been intimated to the family members of the petitioner. In theabsence of any valid material on record to substantiate the case ofthe respondents, we are unable to accept that the arrest of thepetitioner was intimated to the family members of the petitioner.Therefore, even on this ground, the impugned order of detentiongets vitiated.For all the above reasons and discussions, we hold that theimpugned order of detention is bad in law and, accordingly, thisHabeas Corpus Petition is allowed and the impugned order ofdetention is quashed. The detenu is ordered to be set at libertyforthwith, if he is not required in any other case.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarRaoTo1. The Secretary to Government of Tamil Nadu, Home Prohibition and Excise Department, Fort St.George, Chennai-600009.2. The Commissioner of Police, Chennai Police, Chennai.3. The Superintendent, Central Prison, Puzhal, Chennai. Order in H.C.P.No.1044 of 2008SV (CO)GSK 20.01.2009.