Anbu v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.11.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1190 of 2007Anbu.. PetitionerVs1. The State of Tamil Nadu, rep. by its Secretary, Prohibition and Excise Department Secretariate, Chennai.2. The District Magistrate and District Collector, Kanchipuram District Kanchipuram... RespondentsPetition filed under Article 226 of the Constitution of India forissue of Writ of Habeas Corpus as stated therein.For Petitioner:Ms.P.AnbazhaganFor Respondents:Mr.N.R.Elango,Addl. Public ProsecutorO R D E R(Made by P.D.DINAKARAN,J.)The petitioner, husband of the detenue by name Govindammal, who wasincarcerated at the Central Prison for Women, Puzhal, Chennai, pursuant toan order dated 13.7.2007 of the second respondent under the provisions ofthe Tamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14of 1982) branding her as a Bootlegger, has preferred this writ petitionfor issue of Writ of Habeas Corpus to call for the records in connectionwith the order of detention passed by the second respondent dated13.7.2007 in BDFGISSV.No.45/2007, to set aside the same and to direct therespondents to produce the detenue before this Court and set her atliberty. https://hcservices.ecourts.gov.in/hcservices/

2. The ground case, based on which the detention order was passed,is that on 13.6.2007, while the Inspector of Police attached to ChunambeduPolice Station along with his police party at Puthirankottai village wasconducting prohibition raid, the detenue was found in possession ofplastic cans containing arrack and selling the same to the personsstanding in front of her and when the police apprehended her, she tried toescape, but she was caught. On enquiry, the detenue admitted the offenceand when the police smelt the arrack seized from the detenue, it causedirritation in the nose and eyes and also caused giddiness. The detenuewas arrested and three white coloured plastic cans, containing about 102litres of country arrack and other properties were seized. Samples inthree bottles were sent for chemical analysis. A case was registered inCrime No.315 of 2007 on the file of Chunambedu Police Station for offencespunishable under Sections 4(1)(i), 4(1)(aaa), 4(1-A) of the Tamil NaduProhibition Act and the detenue was sent to Court for judicial remand.The chemical analysis report revealed that samples of illicit arrack takenin three bottles contained 9.3% mg., 8.8% and 8.8% w/v of atropinerespectively.3. The second respondent, taking into consideration the above groundcase and finding that the detenue came to the adverse notice of theauthorities in eleven cases of similar nature, viz. in Crime Nos.88/2006,324/2006, 506/2006, 27/2007 and 109 of 2007 on the file of same policestation and in Crime Nos.193/2006, 421/2006, 942/2006, 77/2007, 285/2007and 490/2007 on the file of Madurantakam Prohibition Enforcement Wing,having satisfied that there is a compelling necessity to detain thedetenue in order to prevent her from indulging in the activities which areprejudicial to the maintenance of public order and public health, orderedher detention dubbing her as a Bootlegger. 4.1. The detention order is assailed on the main ground of omissionto set out certain lines in the detention order furnished to the detenuein the language known to her, which deprived of the opportunity of thedetenue to make her effective representation objecting to the order ofdetention. 4.2. In para(i) of the English version of the grounds of detention,while substantiating the subjective satisfaction, the detaining authorityhas observed as follows:-" 5.(i) ... Further the recourse to normal criminal law willnot have the desired effect of effectively preventing her fromindulging in such activities which are prejudicial to themaintenance of public health and public order. On the materialsplaced before me, ..."Whereas, in the translated version given to the detenue in Tamil, the onlylanguage known to her, it is observed thus:- https://hcservices.ecourts.gov.in/hcservices/ "nkYk; rhjhuz Fw;wr; rl;lg;gphpt.fspd; cjtpia ehLjy; nghjpa gyid juhky;ngha;tpLk; vd;gija.k; ehd; ed;F mwpntd;;/ vdf;F Kd;ghf jhf;fy;bra;ag;gl;l Mtz';fspypUe;J ///// "According to the learned counsel, the above said underlined words found inthe English version are the most relevant one, indicating the subjectivesatisfaction of the detaining authority to detain the detenue under Act 14of 1982 and in omission of the same in the Tamil version, vitiates thedetention order itself.5. We have heard the learned Additional Public Prosecutor on theabove point and perused the paper book placed before us.6.1. Communicate is a strong word. It requires that sufficientknowledge of the basic facts consisting the grounds should be impartedeffectively and fully to the detenue in writing in a language which heunderstands, so as to enable the detenue to make a purposeful andeffective representation. Where the grounds are not properly translated,it would tantamount to not serving the grounds to the detenu and wouldthus vitiate the detention ex facie. 6.2. Concededly, in the instant case, as rightly pointed out by thelearned counsel for the petitioner, the words, viz., of effectivelypreventing her from indulging in such activities which are prejudicial tothe maintenance of public health and public order, were totally omitted tobe translated in the Tamil version furnished to the detenue.7. In an identical matter, in H.C.P.No.19 of 2002 (K.Veeramani v.State of Tamil Nadu and another), whereunder a whole paragraph of theoriginal order in English, was omitted to be translated in Tamil, the onlylanguage the detenu therein knows, a Division Bench of this Court, byorder dated 25.06.2002, observed as follows:-" 10. The State's power to make orders of preventive detention isa power which is required to be exercised with utmost care andcaution, and with scrupulous regard to the need to comply withevery one of the constitutional guarantees as also the statutoryrequirements. The Courts have time and again emphasised thatpreventive detention is a hard law and strict compliance with therequirements of law will be insisted upon by the Courts. Theduty of the State in this regard is a heavy one, but it is aduty, which must be discharged to the satisfaction of the Courtsif it expects to make effective use of its powers of preventivedetention. https://hcservices.ecourts.gov.in/hcservices/

11. The rationale for preventive detention is the need to protectsociety from persons whose conduct is inimical to the country'ssafety or society's welfare and the urgency of the need to takeprompt action against them without having to wait for the normalprocedures of the person being brought to trial and, thereafter,in case of conviction being incarcerated. The duty to protectthe country and the society casts an obligation on the State toensure that whenever it exercises power of preventive detention,it exercises the same with due care and that the exerciseconforms to other requirements of law. Omission to do so wouldbe an instance of the State failing in its duty to protect thecountry and the society."The Division Bench, while observing thus, necessitated the Government andthe officials concerned, to take necessary steps to prevent recurrence ofsuch mistakes while passing the detention order and also to takeappropriate action against the persons, who deliberately make omission bymala fide intentions, in order to protect the public from the very personswhose activity is considered by the State to be inimical to public welfareand whose detention is considered by the State itself to be necessary.8. That apart, when a similar ground, as raised in this H.C.P., wasraised before this Court in H.C.P. No.2 of 2007 (between R.Indira andState of Tamil Nadu and another), a Division Bench of this Court, by orderdated 12.4.2007, while observing that the grounds of detention must bemade known to the detenu in a language known to him, which is theconstituent requirement of law, held that since the Tamil order ofdetention does not indicate about the conclusion of the detainingauthority on factual aspect, the order of detention is liable to bequashed.9. Admittedly, in the instant case, the words found in the Englishversion of the grounds of detention, viz., of effectively preventing herfrom indulging in such activities which are prejudicial to the maintenanceof public health and public order, do not find place in the Tamil versionof the grounds of detention furnished to the detenue. Unless the detenuewas made known as to the grounds of detention in clear terms, i.e., in thelanguage known to her, in our considered opinion, undoubtedly, it wouldhave caused prejudice to the detenue to submit her effectiverepresentation, since, as observed earlier, where the grounds are notproperly translated, it would tantamount to not serving the grounds itselfto the detenu and would thus vitiate the detention ex facie. https://hcservices.ecourts.gov.in/hcservices/ For our foregoing conclusion, the order of detention is set aside andthe habeas corpus petition is allowed. The detenue is directed to be setat liberty forthwith unless her presence is required in connection withany other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsraTo:1. The Secretary to Government Prohibition and Excise Department Secretariat, Chennai-9.2. The District Magistrate and District Collector, Kanchipuram District Kanchipuram.3. The Superintendent, Special Prison for Women, Puzhal, Chennai.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government, Public (Law and Order) Fort St.George, Chennai -9.H.C.P.No.1190 of 2007 AKR(CO)RVL 29.11.2007