BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/01/2007 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE G.RAJASURIA HCP (MD) No.368 of 2006 A.Raju ... Petitioner vs. 1.State of Tamil Nadu, rep.by the Secretary to Government, Department of Excise and Prohibition, Secretariat, Fort St.George, Chennai-600 009. 2.The District Collector and District Magistrate, Tiruchirappalli District, Tiruchirappalli. 3.The Inspector of Police, Thuvarankurichy Police Station, Manapparai Sub-Division, Tiruchirappalli District. ... Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus by calling for the records relating to the order of detention in Crl.M.P.No.69/2006, dated 23.09.2006, passed by the second respondent and set aside the same and set the detenue Tmt.Dhanam, wife of Dharmaraj, at liberty. !For Petitioner ... Mr.T.M.Madasamy ^For Respondents .. Mr.N.Senthurpandian, Addl.Public Prosecutor. :ORDER
(Order of the Court was made by D.MURUGESAN,J)
In this habeas corpus petition, the detention of one Dhanam, wife of
Dharmaraj, passed by the District Collector cum District Magistrate,
Tiruchirappalli District by the order in Crl.M.P.No.69/2006, dated 23.09.2006,
under the provisions of Tamil Nadu Act 14 of 1982 is questioned. By that order,
the detenue has been branched as a “bootlegger”.
2.As the order of detention is questioned on the ground that the
pre-detention representation dated 27.08.2006, made by the petitioner on behalf
of the detenue was not considered by the detaining authority before passing the
order of detention, we are not elaborating the various other details leading to
the order of detention.
3.It is the case of the petitioner that a pre-detention
representation was sent to the detaining authority and the same was acknowledged
by him on 28.08.2006. Nevertheless the same was not considered. Non-
consideration of pre-detention representation amounts to violation of
fundamental rights guaranteed and hence the order of detention is vitiated and
consequently is liable to be quashed.
4.In the counter affidavit filed by the detaining authority, the
factum of receipt of such pre-detention representation is not disputed. On the
other hand, it is stated that as the sponsoring authority has filed a sworn-in-
affidavit on 04.09.2006 and the process for detention was initiated only
thereafter, the representation if any prior to the date of sworn-in-affidavit
cannot be taken for consideration as the cause of action emanates from the date
of sworn-in-affidavit only. Hence the contention of the petitioner is liable to
be only rejected.
5.Considering the above factual position, it is to be now considered
as to whether consideration of pre-detention representation depends on the date
of sworn-in-affidavit filed by the sponsoring authority before the detaining
authority or not.
6.Before delve upon the above contentious issue, it would be
appropriate to refer to the pre-detention representation, dated 27.08.2006, sent
by the petitioner to the detaining authority. In the said representation, the
petitioner had stated that he came to know that the detenue was forcibly taken
in a car at about 5.30 a.m. on 22.08.2006 by the Valanadu Police and thereafter
the whereabouts of the detenu was not known. When the petitioner had enquired
with the Valanadu Police, he was informed that a case has been registered
against the detenue under the provisions of Tamil Nadu Prohibition Act and she
has been lodged in the Central Prison, Trichy. When the petitioner met the
detenue in the prison on 24.08.2005, he was informed by the detenue that she was
compelled to plead guilty to avoid detention under the Act 14 of 1982 and she
was also threatened that in the event of not acceding the same, an order of
detention will be clamped on her. Hence she pleaded guilty and the fine amount
was paid by the police themselves. It is also stated that within 20 days, the
respondent police had registered atleast three cases and in all those cases the
police made the detenue to plead guilty and fine amounts were also paid by the
police. With the above allegation, the representation was made to the detaining
authority that the respondent police was contemplating action to clamp an order
of detention on the detenue and therefore the detaining authority was requested
to take appropriate action against the Valanadu Police who had foisted false
cases on the detenue.
7.From the above narration of the facts found in the pre-detention
representation, it is specifically alleged that the detenue had not only been
arrested on 22.08.2006, but was arrested on three occasions as well and in all
those occasions she was made to plead guilty and the fine amount was also paid
by the police. She was compelled to plead guilty only at the threat that in the
event the detenue did not plead guilty she will be branded as a bootlegger and
detained under the provisions of Tamil Nadu Act 14 of 1982. The contents in the
pre-detention representation are very much relevant at the time when the
detaining authority considers the sworn-in-affidavit of the very same police to
arrive at a conclusion to pass an order of detention.
8.Article 22 of the Constitution of India provides various
safeguards calculated to protect the personal liberty against arbitrary
restraint without trial and the safeguards can be regarded as substantial. The
observance of principles of natural justice, which is intended to act as a check
on arbitrary exercise of power, is one of the safeguards enunciated under the
said Article. The procedural requirements under the said provision embodies
the rule of audi alteram partem to limited, crucial and compulsive extent by
providing that when a person is detained in pursuance of an order made under any
law providing for preventive detention, the authority making the order shall
take into consideration all the materials available including the pre-detention
representation.
9.Right to make a representation is considered to be a fundamental
right which includes not only when a representation is made after the order
of detention, but also even prior to such an order of detention is passed. In
anticipation of any order of detention, the detenu or his family members or
relatives are entitled to make a representation to the detaining authority
bringing to his notice that a calculated false attempt is being made by the
police, namely sponsoring authority, to clamp an order of detention by
approaching the detaining authority with an sworn-in-affidavit. A representation
of the detenu whose liberty is in peril cannot be either ignored or lightly
viewed and must be considered. As orders of detention are usually passed on the
subjective satisfaction of the detaining authority as to the materials available
and the necessity to detain an individual by-passing the normal procedure
established by law to bring the accused before the court, it is incumbent on the
detaining authority not only to consider the materials paced before him by the
sponsoring authority but also the pre-detention representation received by him.
Non-consideration of such representation would vitiate the order of detention.
This has been held in the judgment reported in 2003(1) CTC 616 – A.Pushparani
vs. The Commissioner of Police, Greater Chennai, Egmore. The Supreme Court in
the judgment reported in 1994 SCC (Crl.) 229 – District Magistrate and another
vs. R.Kumaravel has also held that pre-detention representation has to be
necessarily considered at the time of passing of the grounds of detention and in
the absence of the same, the order gets vitiated.
10.There is no controversy over the factual aspect in this case,
that on the date when the grounds of detention was made and the order of
detention was passed, the receipt of pre-detention representation was
acknowledged by the detaining authority and the same was available for
consideration. The question as to whether the detaining authority is obligated
to consider the pre-detention representation only after an affidavit of the
sponsoring authority is received by him falls for further consideration. The
object of consideration of the representation, be it a pre-detention
representation or a representation after the detention order is clamped, is to
ensure the safeguard of personal liberty enshrined on an individual from
arbitrary detention. The object being so, in our opinion, it cannot be
contended that only such of those representations which are acknowledged by the
detaining authority after the receipt of sworn-in-affidavit by the sponsoring
authority alone could be considered. Such an interpretation, if accepted, would
defeat the very object of the fundamental right guaranteed on an individual to
safeguard his personal liberty and to question the arbitrary exercise of power
by the authorities by clamping an order of preventive detention. In fact, it
will be appropriate to hold that when the representation was made even before
the sponsoring authority files his sworn-in-affidavit and the same is received
by the detaining authority, it has much force in its contents and must be
considered especially when it was alleged that the sponsoring authority, namely
Inspector of Police, Thuvarankurichi Police Station, had earlier arrested the
detenue atleast on three occasions within a short span of time and made her to
plead guilty under compulsion, namely in the event of refusal she will be
detained under the provisions of Tamil Nadu Act 14 of 1982. When such a
specific case was put-forth by the petitioner in the pre-detention
representation, the non consideration of such a plea would certainly vitiate the
order of detention.
11.The theory that the detaining authority is obligated to consider
any pre-detention representation received only after the filing of sworn-in-
affidavit of the sponsoring authority, as the cause of action for such
consideration arises for the detaining authority only after the affidavit of
the sponsoring authority, cannot be accepted, as cause of action is not relevant
in the cases of preventive detention as the representation is only to ensure
that the grievance exposed in the representation are to be freely and fairly
considered by the detaining authority. In case of preventive detention, the
detaining authority if considers such pre-detention representation, there is
every possibility that he could come to a different conclusion and even refrain
from passing an order of detention. In this context, the consideration of the
pre-detention representation and application of mind by the detaining authority
authority on such representation assume importance. Non-consideration of such
representation would certainly amount to non- application of mind and
consequently vitiate the order of detention. Further, it must also be kept in
mind that either the detenu or the person making a pre-detention representation
on behalf of the detenu could only plead an apprehension that the detenu may be
clamped with an order of detention. The factum of filing of a sworn-in-
affidavit by the sponsoring authority before the detaining authority is beyond
the knowledge or information of the detenu or the person who makes the pre-
detention representation. Such right to make a representation is independent
and indefeasable and has nothing to do with the affidavit of sponsoring
authority.
12.Hence for all the above reasons, we hold that even pre-detention
representation received by the detaining authority much prior to the sworn-in-
affidavit filed by the sponsoring authority should be considered by the
detaining authority before forming any satisfaction to pass an order of
detention and failure to consider such representation would violate the
fundamental right guaranteed under Article 22 of the Constitution of India and
consequently vitiates the order of detention.
13.Accordingly, the habeas corpus petition is allowed and the
impugned order of detention in Cr.M.P.NO.69/2006, dated 23.09.2006, passed by
the second respondent is quashed. The detenue is directed to be set at liberty
forthwith, unless her presence is required in connection with any other case.
gb.
To:
1.The Secretary to Government,
Government of Tamil Nadu,
Department of Excise and Prohibition,
Secretariat, Fort St.George,
Chennai-600 009.
2.The District Collector and
District Magistrate,
Tiruchirappalli District,
Tiruchirappalli.
3.The Inspector of Police,
Thuvarankurichy Police Station,
Manapparai Sub-Division,
Tiruchirappalli District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.