Kamarunisha v. The Commissioner of Police, Madurai City, Madurai

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 20.04.2012CORAMTHE HONOURABLE MR.JUSTICE K.MOHAN RAMandTHE HONOURABLE MR.JUSTICE M.VIJAYARAGHAVANH.C.P.(MD)No.1186 of 2011Kamarunisha .. Petitioner Vs.1.The Commissioner of Police, Madurai City, Madurai.2.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-9. .. RespondentsPetition filed under Article 226 of the Constitution of India toissue a Writ of Habeas Corpus calling for the entire records connectedwith the detention order in 23/BDFGISSV/2011 dated 01.12.2011 passed bythe first respondent and quash the same and direct the respondents toproduce the body and person of the petitioner's son named AsmathkhanGhori, son of Mohammed Ismail Ghori, aged about 36 years, and set him atliberty, now detained in the Central Prison, Madurai. For petitioner : Mr.S.MuruganFor respondents : Mr.C.Ramesh, Additional Public Prosecutor O R D E R(Order of the Court was made by K.MOHAN RAM, J.)In the above Habeas Corpus Petition, the petitioner is the mother ofthe detenu-Asmathkhan Ghori. The detenu came to the adverse notice of thepolice authorities in the following four adverse cases:-Sl.No.Police Station and Crime NumberOffences u/s1.Coimbatore City Central CrimeBranchCrime No.35/2010420 r/w 511 IPC and 4,5 of the Prize Chitsand Money CirculationSchemes (Banning) Act19782.Erode District Bhavani Police StationCrime No.401/2011 420, 506(i) IPC3.Tirunelveli City Central CrimeBranchCrime No.24/2011420, 406 IPC4.Madurai Economic Offences Wing-IICrime No.03/2011406, 420 IPC r/w 5 ofTamil Nadu Protectionof Interest ofDepositors Act, 1997. https://hcservices.ecourts.gov.in/hcservices/ 2The detenual also came to the adverse notice of the police authorities inthe ground case in Crime No.4 of 2011 on the file of the Madurai EconomicOffences Wing-II for offence under Sections 406, 420, 506(ii) IPC r/w 5of Tamil Nadu Protection of Interest of Depositors Act 1997. 2.The sponsoring authority, by placing all the relevant materialsbefore the detaining authority, recommended the detention of the detenuas “Goonda” under Tamil Nadu Act 14 of 1982. The detaining authority, ona perusal of the materials placed before him, came to the subjectivesatisfaction that the detenu is a “Goonda” as defined under Section 2(f)of Tamil Nadu Act 14 of 1982. Further, the detaining authority came tothe subjective satisfaction that there is a compelling necessity todetain him in order to prevent him from indulging in such activitieswhich are prejudicial to the maintenance of public order, under theprovisions of Tamil Nadu Act 14 of 1982, and passed the impugned order ofdetention. Challenging the order of detention, the petitioner has filedthe above Habeas Corpus Petition.3.Heard the learned counsel for the petitioner and the learnedAdditional Public Prosecutor appearing for the respondents.4.Mr.S.Murugan, learned counsel for the petitioner submitted thatthough several grounds have been raised in the Habeas Corpus Petitionchallenging the order of detention, he is confining his submissionsrelating to Ground No.6 raised in the affidavit. The learned counsel forthe petitioner submitted that in the grounds of detention, in paragraph-3, the detaining authority has stated as follows:-“Hence, Tr.Lakshmi Kanthan invested two lacs in his nameand invested Rs.4½ lacs in the name of his family memberstotally invested Rs.6½ lacs and obtained receipt of the firm andagreement bond for the same.”The learned counsel for the petitioner submitted that though the copiesof fixed deposit receipts to an extent of Rs.6,00,000/- is furnished inthe booklet furnished to him, the receipt for a sum of Rs.50,000/- hasnot been furnished. Further, the Agreement Bond said to have beenexecuted by the detenu has also not been furnished. It is pointed outthat when the detaining authority has referred to and relied upon thereceipt of firm and agreement bond for the same, to reach the subjectivesatisfaction, then, such relied upon documents should be furnished to thedetenu, and the non-furnishing of the said relied upon documents, willvitiate the order of detention. In support of his contention, the learnedcounsel placed reliance on the following two decisions of the Apex Court. i) Judgment reported in (2009) 1 MLJ (Crl) 407 (SC) (State of T.N. v.Abdullah Kadher Batcha) andii) Judgment reported in (2009) 1 MLJ (Crl) 54 (SC) (Union of India v.Ranu Bhandari). 5.Countering the aforesaid submission, the learned Additional PublicProsecutor submitted that the detaining authority, when admittedly, hasfurnished 6 receipts which cover the extent of Rs.6,00,000/-, non-furnishing of the receipt for a sum of Rs.50,000/- and the agreement bondwill not prejudice the right of the detenu in making effective https://hcservices.ecourts.gov.in/hcservices/ 3representation. The learned Additional Public Prosecutor submitted thatit has not been pleaded by the detenu that he has been prejudiced by thenon-supply of the relied upon documents. In support of his contention,the learned Additional Public Prosecutor placed reliance on the decisionof the Apex Court reported in AIR 1989 SUPREME COURT 497 (HaridasAmarchand Shah of Bombay v. K.L.Verma and others). Further, a contentionwas raised that the agreement bond is admittedly available with thedetenu and hence it cannot be heard to be contended that non-supply ofthe said document even though relied upon by the detaining authority,will vitiate the order of detention.6.We have heard the aforesaid submissions made on either side andperused the materials available on record.7.In the grounds of detention, the detaining authority has statedthat Thiru.Lakshmi Kanthan invested Rs.2 lakhs in his name and investedRs.4½ lakhs in the name of his family members, and totally invested Rs.6½lakhs, and obtained the receipt of the firm and agreement bond for thesame. Thus it is clear that only based on the receipts said to have beenobtained from the complainant, and the agreement bond, the detainingauthority has reached the subjective satisfaction that the complainanthad invested a total sum of Rs.6 ½ lakhs. Therefore, the receipts for theinvestment of Rs.6 ½ lakhs and the agreement bond for the same, are therelied upon documents for the detaining authority reaching the subjectivesatisfaction. There cannot be any dispute that it is the constitutionalright of the detenu to be supplied with the relied upon documents.Further, as per Section 8 of Act 14 of 1982, the grounds of detentionwhich includes the documents relied upon by the detaining authority,should be supplied to the detenu not later than 5 days from the date ofdetention. If there is any infraction of the statutory right aforesaid,the order of detention cannot be sustained. 8.In the decision reported in (2009) 1 MLJ (Crl) 54 (SC) (Union ofIndia v. Ranu Bhandari), a Division Bench of the Hon'ble Apex Court, inparagraph-25, has laid down as follows:-“25.We have indicated hereinbefore that the consistent viewexpressed by this Court in matters relating to preventivedetention is that while issuing an order of detention, theDetaining Authority must be provided with all the materialsavailable against the individual concerned, both against him andin his favour, to enable it to reach a just conclusion that thedetention of such individual is necessary in the interest of theState and the general public. It has also been the consistentview that when a detention order is passed all the materialrelied upon by the Detaining Authority in making such an order,must be supplied to the detenu to enable him to make aneffective representation against the detention order incompliance with Article 22(5) of the Constitution, irrespectiveof whether he had knowledge of the same or not. These have beenrecognized by this Court as the minimum safeguards to ensurethat preventive detention laws, which are an evil necessity, donot become instruments of oppression in the hands of theconcerned authorities or to avoid criminal proceedings whichwould entail a proper investigation.”The aforesaid decision makes it very clear that when a detention order is https://hcservices.ecourts.gov.in/hcservices/ 4passed, all the materials relied upon by the Detaining Authority inmaking such an order, must be supplied to the detenu to enable him tomake an effective representation against the detention order incompliance with Article 22(5) of the Constitution, irrespective ofwhether he had knowledge of the same or not. 9.In the Full Bench decision reported in (2009) 1 MLJ (Crl) 407 (SC)(State of T.N. v. Abdullah Kadher Batcha), the Hon'ble Apex Court, inparagraph-8 has laid down as follows:-“8.While examining whether non supply of a document wouldprejudice a detenu the Court has to examine whether the detenuwould be deprived of making an effective representation in theabsence of a document.Primarily, the copies which form the ground for detentionare to be supplied and non supply thereof would prejudice tothe detenu. But documents which are merely referred to for thepurpose of narration of facts in that sense cannot be termed tobe documents without the supply of which the detenu isprejudiced.”Thus, it is clear that the materials which form the ground for detentionare to be supplied to the detenu and non-supply thereof, would prejudicethe detenu. Therefore, the contention of the learned Additional PublicProsecutor that since non-supply of relied upon documents has not causedany prejudice to the detenu, the non-supply will not vitiate the orderof detention, cannot be countenanced. When considering the non-supply ofrelied upon document, the question as to whether such non-supply ofrelied upon document has caused prejudice to the detenu, is irrelevant. 10.It has been repeatedly held by the Apex Court that the reliedupon documents are to be supplied within a period of five days from thedate of detention as otherwise, the order of detention cannot be upheld.In the decision reported in AIR 1989 SUPREME COURT 497 (Haridas AmarchandShah of Bombay v. K.L.Verma and others), which has been relied upon bythe learned Additional Public Prosecutor, it has been laid down asfollows:-“There is no dispute that all the documents which wereconsidered by the detaining authority in reaching hissubjective satisfaction and referred to in the grounds ofdetention have been furnished to the detenu. It is notnecessary to furnish copies of all the documents including thebank pass books which are not material and relevant forreaching the subjective satisfaction of the detaining authoritymerely because they were mentioned in the panchnama. Moreover,no application had been made before the detaining authority forgiving the detenu the copies of the bank pass books necessaryfor making an effective representation against the order ofdetention.”In that decision, there was no dispute that all the documents which wereconsidered by the detaining authority in reaching subjective satisfactionand referred to in the grounds of detention, have been furnished to thedetenu. The question that arose for consideration before the Apex Courtin that case was whether the non-supply of the documents which have beenmerely mentioned in the panchnama, but not relied upon in the grounds ofdetention, are necessary to be furnished to the detenu. In that decision, https://hcservices.ecourts.gov.in/hcservices/ 5it has not been laid down that it is not necessary to furnish the reliedupon document or non-supply should have caused some prejudice to thedetenu and only then the order of detention can be quashed. Therefore,the said decision is not applicable to the facts of the present case. 11.In view of the aforesaid reasons, we are of the considered viewthat non-furnishing of the relied upon documents to the detenu, vitiatesthe order of detention. Accordingly, the Habeas Corpus Petition isallowed and the order of detention in No.23/BDDFGISSV/ 2011 dated01.12.2011 passed by the first respondent is set aside. The detenu isdirected to be released forthwith unless his presence is required inconnection with any other case. Sd/-Assistant Registrar (Records)/True copy/ Sub Assistant Registrar(C.S) To1.The Commissioner of Police, Madurai City, Madurai.2.The Secretary to Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-9. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.4.The District Magistrate and District Collector, Madurai.5.The Superintendent, central Prison, Madurai.6.The Joint Secretary to Government, Public (Law and order) Fort St.George, Chennai-9.KM H.C.P.(MD)No.1186 of 201120.04.2012TR : 08.05.2012: 5p/7c