Periyasamy v. The Secretary to Government of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.11.2007CORAMTHE HON'BLE MR.JUSTICE P.D.DINAKARANANDTHE HON'BLE MR.JUSTICE R.REGUPATHIHabeas Corpus Petition No.985 of 2007Periyasamy.. Petitionervs.1. The Secretary to Government of India, Ministry of Home Affairs, Dept. of Internal Security, North Block, New Delhi.2. The Secretary to the Government, Public (Law and Order-F) Dept., Secretariat, Chennai-9.3. The District Collector and District Magistrate, District Collector's Office, Tiruvarur. .. RespondentsPetition filed under Article 226 of the Constitution of Indiapraying for issue of Writ of Habeas Corpus as stated therein.-----For Petitioner:Mr.S.Vadivel MuruganFor Respondents:Mr.P.KumaresanACGSC for R-1:Mr.N.R.ElangoAPP for RR2 and 3-----O R D E R(Made by P.D.DINAKARAN, J.)The order of detention dated 4.5.2007 passed by the thirdrespondent herein in C.O.C.No.9/2007/N.S.A., against oneManoharan, son of the petitioner herein, in exercise of the powers https://hcservices.ecourts.gov.in/hcservices/ conferred under sub Section (2) of Section 3 of the NationalSecurity Act, 1980 (Central Act 65 of 1980) read with orders issuedby the Government in G.O.Ms.No.947, Public (L&O-F) Department dated15.5.2007, is being challenged in this petition by the father ofthe said Manoharan, seeking to issue writ of habeas corpus callingfor the records in connection with the detention order and quashthe same and to direct the respondents to set the detenu Manoharan,now detained in Central Prison, Tiruchirapalli at liberty.2. The ground case, on the basis of which the detainingauthority passed the impugned detention order, is that on 21.4.2007at about 9.00 a.m., one Palanivel lodged a complaint before theInspector of Police, Muthupettai Police Station, alleging that thestatue of E.V.R. Periyar erected at the outlet of Muthupettai NewBus Stand was disintegrated and its head and hands were missing andhence, necessary action has to be taken against the culprit. Basedon the said complaint, a case was registered in Crime No.103 of2007 for offences under Sections 153, 427, 120(b) of I.P.C. readwith Section 3(1) of Tamil Nadu Public Property (Damage and Loss)Act, 1992 and investigation was taken up. During investigation, thedetenu Manoharan and his associate were arrested and wheninterrogated, they gave confessional statements, on the basis ofwhich, the head of E.V.R. Periyar and other properties were seized.The detenu and his associate were produced before JudicialMagistrate, Thiruthuraipoondi, for remanding them into judicialcustody.3. The detaining authority, the third respondent herein,taking note of the above ground case and also finding that thedetenu came to the adverse notice of the authorities in two cases,viz. in Crime No.90 of 2005 registered on the file ofPerugavalanthan Police Station for offences punishable underSections 147, 341, 323, 294(b) and 506(ii) I.P.C. and in CrimeNo.398 of 2005 on the file of Muthupettai Police Station foroffences under Sections 294(b), 352 and 506(ii) I.P.C., havingsatisfied that the detenu Manoharan acted in a manner prejudicialto the maintenance of public peace, national harmony andinstigation of ill-feeling on caste, religious and communal basis,ordered his detention in order to prevent him from indulging insuch activities which are prejudicial to the security of theNation.4. The learned counsel for the petitioner inviting ourattention to para 10 of the grounds of detention, viz.,"On 25-4-2007, a petition was received from one ThiruPeriasamy of Alangadu Village, Tiruvarur District statingthat his son Thiru Manoharan was taken by MuthupettaiPolice and registered a false case against him as he is https://hcservices.ecourts.gov.in/hcservices/ involved in the demolition of E.V.R.Periyar statue anddid not try to arrest the real culprit and they aretrying to register a case against him under NationalSecurity Act, stop impose against him. In this regard,after conducting detailed enquiry by the RevenueOfficials, the petition is not considered in favour ofthe petitioner.",contends that admittedly, the detaining authority has relied uponthe report of the revenue officials while rejecting the pre-detention representation made on behalf of the detenu and the saidreport of the revenue officials does not find place in the paperbook furnished to the detenu along with the grounds of detention,which deprived of his valuable right to make an effectiverepresentation objecting to the order of detention, as envisagedunder Article 22(5) of the Constitution of India and as requiredunder Section 8(1) of the National Security Act, before theGovernment or the Advisory Board. In support of the said plea, thelearned counsel also relied upon the decision of the Apex Court inPOWNAMMAL v. STATE OF TAMIL NADU AND ANOTHER [A.I.R. 1999 SC 618].5. On the above point, we heard the learned Additional CentralGovernment Standing Counsel appearing for the first respondent andthe learned Additional Public Prosecutor appearing for respondents2 and 3.6. In POWNAMMAL v. STATE OF TAMIL NADU, cited supra, where theTamil version of the remand order, which is a relied upon document,was not supplied to the detenue even though it was demanded by thedetenue, the Apex Court held thus -" 15. Adverting to the facts of this case, the appellanthas made a representation for supply of Tamil version ofthe copy of order of remand and specifically stated thatthe detenue could not understand English language.Admittedly, Tamil version of order of remand was notfurnished to her. A perusal of the grounds shows thatthe order of remand was relied upon by the secondrespondent to reach subjective satisfaction, so thedetenue need not show that any prejudice was caused toher due to non-supply of the Tamil version of order ofremand. Therefore, the High Court is not correct inholding that non-furnishing of the copy of the order ofremand would not in any way prejudice the detenue."7.1. That apart, a Division Bench of this Court in anunreported decision in H.C.P.No.1256 of 2006 (between Maheswari v.The Secretary to Government, Food and Consumer Protection Dept. andothers), by order dated 5.2.2007, while considering a similar case https://hcservices.ecourts.gov.in/hcservices/ of non-furnishing of Revenue Divisional Officer's Report as to theantecedents and activities of the detenu, held that the report ofthe Revenue Divisional Officer is a vital document and non-supplyof such document to the detenu would certainly deprive his valuableright to make an effective representation to the Government or theAdvisory Board. 7.2. The above view was subsequently followed by this Court inunreported decisions in H.C.P.No.320 of 2007 (between Balaji v.State and others) by order dated 4.7.2007 and in H.C.P.No.539 of2007 (between Kuppandi @ Kuppusami v. State and others) by orderdated 16.8.2007.8. Undoubtedly, in the instant case, as seen from para 10 ofthe grounds of detention, extracted above, the detaining authorityhas relied upon the report of the revenue officials made after adetailed enquiry and rejected the pre-detention representationdated 25.4.2007 made on behalf of the detenu and the said report ofthe revenue authorities, was not furnished to the detenu while theother materials were furnished, which has deprived of theopportunity of the detenu to submit his effective representationobjecting to the order of detention. Both the learned AdditionalCentral Government Standing Counsel and the learned AdditionalPublic Prosecutor also concede that the said document was notfurnished to the detenu.9. In that view of the matter, we are convinced that thedetaining authority has failed to take into consideration the saidnon-furnishing of a vital document to the detenu, which prejudicedthe detenu in making his effective representation and thus,vitiates the impunged order of detention. Hence, we are inclinedto allow this writ petition on this ground.In the result, the habeas corpus petition is allowed and theorder of detention is set aside. The detenu is directed to be setat liberty forthwith, unless he is required in connection with anyother case.SraSd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government of India, Ministry of Home Affairs, Dept. of Internal Security, North Block, New Delhi.2. The Secretary to the Government, Public (Law and Order-F) Dept., Secretariat, Chennai-9.3. The District Collector and District Magistrate, District Collector's Office, Tiruvarur.4. The Superintendent, Central Prison, Tiruchirapalli.5. The Joint Secretary to Government, Public (Law and Order), Chennai-9.6. The Public Prosecutor, High Court, Madras.1 cc to Mr.S.Vadivel Murugan, Advocate, SR.67599sru (co)dv/11.12.HCP No.985 of 2007