Thiru VeluS/o Arumugam v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:03.04.2008CORAM THE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHH.C.P.No.1599 of 2007Thiru VeluS/o Arumugam..Petitioner -vs-1. The State of Tamil Nadu rep.by its Secretary to Government Prohibition and Excise Department Fort St.George Chennai 600 0092. The District Magistrate and District Collector Vellore District Vellore..Respondents Petition filed under Article 226 of The Constitution of India,praying for the issue of a Writ of Habeas Corpus, calling for therecords in connection with the order of detention passed by thesecond respondent dated 31.10.2007 in his officeRef.C3.D.O.No.100/2007 against the petitioner's motherTmt.Kaliyammal, W/o Arumugam now confined at Special Prison forWomen, Vellore, set aside the same and direct the respondents toproduce the above said detenue before this Hon'ble Court and set herat liberty.For Petitioner::Mr.V.Parthiban forMr.E.KannadasanFor Respondents::Mr.M.Babu Muthu MeeranAddl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ ORDERD.MURUGESAN, J.The petitioner is the son of the detenue-Kaliyammal, who hasbeen detained under Tamil Nadu Act 14 of 1982 branding her as"bootlegger" by the orders of the District Magistrate and DistrictCollector, Vellore District made in his officeRef.No.C3.D.O.No.100/2007 dated 31.10.2007. Prior to the passing ofthe impugned detention order, four adverse cases were noticed againstthe detenue, namely, one under Section 4(1)(i) of the Tamil NaduProhibition Act, two under Section 4(1)(a) of the Tamil NaduProhibition Act and one under Section 4(1)(aa) of the Tamil NaduProhibition Act on the file of the Vaniyambadi ProhibitionEnforcement Wing Police Station, Vellore District. 2. On the afternoon of 9.10.2007, the Sub Inspector of Police,Vaniyambadi Prohibition Enforcement Wing Police Station along withpolice party reached Velakkal Natham in Natrampalli Police Stationlimits and at about 13.30 hours, they conducted prohibition raid andnoticed the detenue sitting on the floor keeping one 10 litrescapacity white colour plastic can in front of her, pouring someliquid substance from the said white colour plastic can into a greencolour plastic tumbler and offered the same to a person standing infront of her. On seeing the police party, the person who came toconsume arrack escaped from the place dropping the plastic tumbler.Hence the detenue was arrested and a case in Crime No.857 of 2007 forthe offence under Section 4(1)(1), 4(1)(aaa), 4(1-A)(ii) of the TamilNadu Prohibition Act read with Section 328 IPC on the file ofVaniyambadi Prohibition Enforcement Wing Police Station wasregistered. The detenue was produced before the Judicial MagistrateNo.IV, Tirupattur on 9.10.2007 and she was ordered to be remandedtill 23.10.2007 and the remand was further extended upto 6.11.2007.In the meantime, the order of detention was passed.3. Mr.V.Parthiban, learned counsel appearing for the petitionerhas questioned the order of detention on two grounds. Firstly, hewould submit that though the detaining authority has relied upon thefact that the detenue had filed a bail application before the HighCourt, Chennai in Crl.O.P.No.32374 of 2007 and the same was pending,the copy of the bail application was not furnished. Secondly, thelearned counsel would submit that the detenue had made arepresentation on 7.11.2007 seeking for a copy of the said bailapplication and the bail order in order to make an effectiverepresentation, but the same have not been supplied. 4. We have heard Mr.M.Babu Muthu Meeran, learned AdditionalPublic Prosecutor for the respondents. 5. Insofar as the non-supply of the bail application, thelearned counsel for the petitioner would rely upon a Division Benchjudgment of this Court in Jarinabegam v. State of Tamil Nadu rep.bySecretary to Government, Prohibition and Excise Department, Chennai https://hcservices.ecourts.gov.in/hcservices/ and another (2007-1-L.W.(Crl.) 276 and contend that the failure tosupply the bail application would vitiate the order of detention.Before we consider the said contention, we would like to refer to thejudgments of the Apex Court on this aspect. 6. The Apex Court in K.Varadharaj v. State of Tamil Nadu (2002(6) SCC 735) upon noticing some of the earlier decisions, inparagraph-6 observed as follows:-"From the above observations, it is clear thatplacing of the application for bail and the ordermade thereon are not always mandatory and suchrequirement would depend upon the facts of eachcase."From the above observation it is clear that placing of the bailapplication and the order made thereon are not always mandatory andsuch requirement would depend upon the facts of each case. 7. While dealing with the obligation of the detaining authorityto supply only such of those documents which are relevant, the ApexCourt in the judgment in Radhakrishnan Prabhakaran v. State of TamilNadu (2000 (9) SCC 170) has held in paragraph-8 as follows:-"We may make it clear that there is no legalrequirement that a copy of every document mentionedin the order shall invariably be supplied to thedetenu. What is important is that copies of onlysuch of those documents as have been relied on bythe detaining authority for reaching thesatisfaction that preventive detention of the detenuis necessary shall be supplied to him. It isadmitted by the learned counsel for the petitionerthat the order granting bail has been supplied tohim. Application for bail has been submitted by thedetenu himself when the order of detention waspassed which was subsequent to the order grantingbail. We cannot comprehend as to how a prior orderrejecting bail would be of any relevance in thematter when it was later succeeded by the ordergranting bail...."Quoting the above two judgments with approval, the Apex Court inSunila Jain v. Union of India and another (2006 (2) SCC (Crl.) 90,has held in paragraph-18 as follows:-"The decisions of this Court referred tohereinbefore must be read in their entirety. It isno doubt true that whether a detenu on the date ofthe passing of the order of detention was incustody or not, would be a relevant fact. It wouldalso be a relevant fact that whether he is free onthat date and if he is, whether he is subjected tocertain conditions in pursuance to and infurtherance of the order of bail. If pursuant toor in furtherance of such conditions he may not be https://hcservices.ecourts.gov.in/hcservices/ able to flee from justice, that may be held to berelevant consideration for the purpose of passingan order of detention but the converse is not true.Some such other grounds raised in the applicationfor bail and forming the basis of passing an orderof bail may also be held to be relevant. It would,however, not be correct to contend thatirrespective of the nature of the application forbail or irrespective of the nature of therestrictions, if any, placed by the court ofcompetent jurisdiction in releasing the detenu onbail, the same must invariably and mandatorily beplaced before the detaining authority and thecopies thereof supplied to the detenu."Having held so, the Apex Court has further observed that it isnot a universal rule that irrespective of the fact and circumstancesof the case, it would be imperative to place an application for bailas also the orders passed thereupon before the detaining authorityand the copies thereof shall be supplied to the detenu. A carefulreading of the above judgment of the Apex Court would make it clearthat it is not mandatory for placing an application for bail to thedetaining authority and the consequent supply of the said applicationto the detenu in all cases. Of course, a distinction is sought to bemade by the Apex Court in the judgment in P.U.Abdul Rahiman v. Unionof India (1991 Supp.2 SCC 274), wherein the Apex Court has observedthat in the two applications for bail, the appellant therein hadspecifically stated that he and the co-accused had retracted from thestatements made by them and in that circumstance, failure to supplythe bail application which contained material facts and which weretaken into consideration by the detaining authority ought to havebeen supplied. 8. In M.Ahmedkutty v. Union of India (1990) 2 SCC 1, the ApexCourt has observed as follows:-"Considering the facts in the instant case, thebail application and the bail order were vitalmaterials for consideration. If those were notconsidered the satisfaction of the detainingauthority itself would have been impaired, and ifthose had been considered, they would be documentsrelied on by the detaining authority though notspecifically mentioned in the annexure to theorder of detention and those ought to have formedpart of the documents supplied to the detenu withthe grounds of detention and without them thegrounds themselves could not be said to have beencomplete. We have, therefore, no alternative butto hold that it amounted to denial of the detenu'sright to make an effective representation and thatit resulted in violation of Article 22(5) of theConstitution of India rendering the continueddetention of the detenu illegal and entitling thedetenu to be set at liberty in this case." https://hcservices.ecourts.gov.in/hcservices/ In Abdul Sathar Ibrahim Manik v. Union of India (AIR 1991 SC 2261),the Apex Court while considering the failure on the part of thedetaining authority to furnish copy of the bail application and theorder had observed as follows:-"12(3) If the detenu has moved for bail then theapplication and the order thereon refusing baileven if not placed before the detaining authorityit does not amount to suppression of relevantmaterial. The question of non application of mindand satisfaction being impaired does not arise aslong as the detaining authority was aware of thefact that the detenu was in actual custody.....12(5) When the detaining authority has merelyreferred to them in the narration of events andhas not relied upon them, failure to supply bailapplication and order refusing bail will not causeany prejudice to the detenu in making an effectiverepresentation. Only when the detaining authorityhas not only referred to but also relied upon themin arriving at the necessary satisfaction thenfailure to supply these documents, may, in certaincases depending upon the facts and circumstancesamount to violation of Article 22(5) of theConstitution of India. Whether in a given case thedetaining authority has casually or passinglyreferred to these documents or also relied uponthem depends upon the facts and the grounds, whichaspect can be examined by the Court."9. Keeping the above law in mind, the facts of the present casemust be considered. An application for bail filed in Crl.M.P.No.8430of 2007 was dismissed by the Sessions Court on 24.10.2007.Thereafter, the detenue had filed an application for bail before thisCourt in Crl.O.P.No.32374 of 2007. While the said application waspending, the detention order came to be passed on 31.10.2007. Thecontention of Mr.V.Parthiban, learned counsel for the petitioner isthat the bail application is a material document and the failure tosupply the said document would vitiate the order of detention. Inour opinion, the said contention cannot be accepted in the light ofthe judgment of the Apex Court in Radhakrishnan Prabhakaran's caseand in Sunila Jain's case (supra).10. In fact, after having considered the judgment inM.Ahmedkutty's case and in Abdul Sathar Ibrahim Manik's case, aDivision Bench of the Madurai Bench of this Court (one of us was aparty) in the judgment in M.Rakku v. Secretary to the Government,State of Tamil Nadu, Prohibition and Excise Department and another(2007) 2 MLJ (Crl.) 269 has also held that the detenu has to provethat the non-supply of the documents placed before the detainingauthority has adversely affected his right to make an effectiverepresentation. In this case, the application for grant of bail wasearlier dismissed by the learned Sessions Judge and as against that, https://hcservices.ecourts.gov.in/hcservices/ an application for bail was filed before this Court and the same waspending. The contents of the copy of the application were within theknowledge of the detenue and therefore the non-supply of the saidcopy will not cause any prejudice to the detenue. As far as theforming of subjective satisfaction by the detaining authority isconcerned, it would be sufficient that the detaining authority wasaware of the fact that the application for bail was pending and thereis every possibility of the detenue coming out on bail.11. For all the above reasons, we are of the considered view thatboth the grounds raised by the learned counsel for petitioner mustfail. Accordingly, the habeas corpus petition is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssTo1. The Secretary to Government of Tamil Nadu Prohibition and Excise Department Fort St.George Chennai 600 0092. The District Magistrate and District Collector Vellore District Vellore3. The Public Prosecutor High Court, Madras4. The Superintendent, Special Prison for Women Vellore.5. The Joint Secretary, Public (Law & Order) Fort St. George, Chennai -9.+ 1 CC to Mr.E.Kannadasan Advocate SR NO.15558 H.C.P.No.1599 of 2007MDR(CO)JJM(15/04/08)