BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 2/8/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY H.C.P.(MD) No.173 of 2010 Pandiyammal .. Petitioner vs 1.State of Tamil Nadu Represented by The Secretary to Government of Tamil Nadu Home, Prohibition and Excise Department Fort St. George Chennai 600 009. 2.The Commissioner of Police Madurai City Madurai 3.The Superintendent of Prison Madurai Central Prison Madurai District 4.The Secretary Advisory Board 32, Rajaji Salai Singaraveler Maligai Chennai Collectorate Chennai .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the entire records connected with the detention order of the Respondent No.2 in No.03/BDFGISSV/2010 dated 8.2.2010 and quash the same and direct the respondents to produce the body and person of the petitioner's son by name Raja @ Chinna Raja, son of Essac, aged about 28 years, detained in Madurai Central Prison before this Court and set him at liberty forthwith. !For Petitioner ... Mr.R.Alagumani ^For Respondents ... Mr.P.N.Senthur Pandian Additional Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
This petition challenges an order of the second respondent made in
No.03/BDFGISSV/2010 dated 8.2.2010, whereby the son of the petitioner by name
Raja @ Chinna Raja was ordered to be detained under Act 14/82 branding him as a
Goonda.
2.The Court heard the learned Counsel for the petitioner and also looked
into all the materials available including the order under challenge.
3.It is not in controversy that pursuant to the recommendation made by the
sponsoring authority that the detenu was involved in two adverse cases namely
(i) C5 Karimedu PS Cr.No.243/09 under Sections 341, 302 and 506(ii) IPC and (ii)
D2 Sellur PS Cr.No.3342/09 under Sections 395 read with 397, 506(ii) IPC and
25(1) of Arms Act and 3, 4(b) of Explosive Substances Act, 1908 and one ground
case registered by C4 Thilagarthidal PS in Crime No.1903/2009 under Sections 392
read with 397 and 506(ii) IPC, the detaining authority after scrutiny of all the
materials available, recorded its subjective satisfaction that the activities of
the detenu were prejudicial to the maintenance of the public order and hence
made the order under challenge.
4.Advancing arguments on behalf of the petitioner, the learned Counsel
would inter alia urge two grounds as primary grounds by which he made his
sincere attempt of attacking the order. According to the Counsel, he was
remanded in the second adverse case and in the ground case; that no bail
application has been filed in either of the cases; but in paragraph 5 of the
order, the detaining authority has stated that there was a real possibility of
the detenu coming out on bail, and this was without any material, much less
cogent material which the law would require.
5.Added further the learned Counsel that the petitioner has made a post-
detention representation on 27.2.2010, to the Advisory Board to have the legal
assistance; that the Advisory Board instead of considering the representation
made, sent the matter to the Government before affirming the order by the State;
and that the non-consideration of the representation by the Advisory Board would
also be fatal to the order in question.
6.In order to fortify the contention, the learned Counsel relied on a
decision of the Division Bench of this Court reported in (2009) 4 MLJ (CRL) 443
(SUGUMATH KANISH V. STATE OF T.N. AND OTHERS).
7.The Court heard the learned Additional Public Prosecutor on the above
contentions. According to him, it is true that no bail application was filed by
him before any Court of criminal law in either of the cases; but, at the same
time, the sponsoring authority has recorded the statement of one Mahendran, the
friend of the detenu, with whom he was doing such illegal activities in the
past, and he has stated that he met the detenu in prison a few days earlier, and
the detenu informed him that he is going to move bail in those cases through an
Advocate, and under the circumstances, the first ground has got to be rejected.
8.As far as the second ground regarding the post-detention representation
for legal assistance, is concerned, the learned Additional Public Prosecutor
would submit that it cannot be made as a matter of right, and hence both the
grounds have got to be rejected, and the petition be dismissed.
9.As could be seen from the available materials, the sponsoring authority
placed its recommendation on the strength of two adverse cases and one ground
case as referred to above. It is pertinent to point out that in the second
adverse case and in the ground case, he has not moved bail before any Court of
criminal law. While the fact stood admitted, the detaining authority in
paragraph 5 of the order under challenge has stated as follows:
“5.I am aware that Tr.Raja @ Chinna Raja, s/o. Essac, is now in remand in the
ground case in C4 Thilagarthidal P.S.Cr.No.1903/2009 and also the adverse case
in D2 Sellur PS Cr. No.3342/2009 and he is lodged at the Central Prison, Madurai
and he has not filed bail applications in the above adverse and ground cases.
However I am aware through the statement of Tr. Mahendran, S/o Sudalai that
Tr.Raja @ Chinna Raja is making efforts to file bail applications in the above
said ground case and adverse case, before the concerned court. Hence, I am also
aware that there is a ‘real possibility’ of his coming out on bail by filing
bail application in the above ground case in C4 Thilagarthidal PS
Cr.No.1903/2009 and the adverse case in D2 Sellur PS Cr. No.3342/2009 by filing
bail applications, since in similar cases bails are granted by the concerned
Court or Higher Court.”
10.The very reading of the above observation would indicate that though
the authority has got the clear knowledge that no bail application was filed
either in the second adverse case or in the ground case, he has stated that
there was a real possibility of the detenu coming out on bail. Now, the
contention put forth by the learned Additional Public Prosecutor is that the
sponsoring authority recorded a statement from one Mahendran, the friend of the
detenue, to whom it was informed by the detenu when he met him in the prison,
that the detenu was going to move the Court for bail in those cases through an
Advocate. The very reading of the statement given by the said Mahendran, would
indicate that the crime numbers and further particulars are given which could
not have been given by him. This Court is of the considered opinion that this
cannot be a material, much less cogent material, and it cannot be relied upon.
Under the circumstances, this Court is of the view that the same cannot be
considered to be a cogent material. Hence the contention put forth by the State
has got to be rejected.
11.Equally, it is an admitted position that a post-detention
representation was made by the petitioner to the Advisory Board to have the
legal assistance on 27.2.2010. But the learned Additional Public Prosecutor for
the State would represent that it cannot be made as of right. It is true that
it is not a matter of right. It is settled proposition of law that it was not a
matter of right; but, when a representation is made to that effect, a duty is
cast upon the Advisory Board to consider the same and pass suitable orders
thereon. On one occasion, it was considered by the Division Bench of this Court
in a case reported in (2009) 4 MLJ (CRL) 443 (SUGUMATH KANISH V. STATE OF T.N.
AND OTHERS) and held as follows:
“8.Added circumstances, it is brought to the notice of the Court that after
passing the detention order dated 6.11.2008 and after constitution of the
Advisory Board, the detenu was directed to appear before the Advisory Board on
7.1.2009. Accordingly, he appeared and sought for permission to engage a
counsel to represent him. It is not in dispute that such a representation was
actually made before the Advisory Board. On perusal of the order made by the
Advisory Board, nowhere it is indicated that such a representation was
considered. The question whether the detenu has got a right to have the
assistance of a lawyer before the Advisory Board came up for consideration
before the Apex Court on number of occasions. On one occasion, the Supreme
Court in Kavitha v. State of Maharashtra and Others (AIR 1981 SC 1641) : (1981)
SCC (Cri) 743 has held as follows:
“Though a detenu has no right under Section 8(e) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 to appear through a
legal practitioner in the proceedings before the Advisory Board, he is entitled
to make a representation for the services of a lawyer to appear before the said
Board which is under obligation to consider the same dispassionately in the
facts of a particular case. The representation made by a detenu for legal
assistance before the Advisory Board, has to be considered not perfunctorily but
with due application of mind, since in each case of detention, the liberty of an
individual is involved.”
It would be quite clear that from the very reading of the decision that the
detenu is not vested with any right under the provisions of COFEPOSA Act to
appear through his counsel in proceeding before the Advisory Board. But, he is
entitled to make a representation for the service of a lawyer to appear before
the Board and the Board is also under obligation to consider the same. In the
instant case, though the representation was made before the Board to take
assistance of a legal practitioner, nothing is found indicating whether such a
representation was considered by the Board at all. Under such circumstances,
the decision of the Apex Court, if applied, would also make the order under
challenge defective.”
12.This Court is unable to see any reason to deviate from the earlier
decision taken by the Court. Once the submission of a post-detention
representation seeking legal assistance, to the Advisory Board, is an admitted
fact, the Advisory Board should have considered the same and passed orders, but
failed to do so. Hence both the grounds have got to be applied in favour of the
detenu.
13.Accordingly, this habeas corpus petition is allowed setting aside the
order of the second respondent. The detenu is directed to be set at liberty
forthwith unless his presence is required in connection with any other case.
nsv
To
1.The Secretary to Government of
Tamil Nadu
Home, Prohibition and Excise
Department
Fort St. George
Chennai 600 009.
2.The Commissioner of Police
Madurai City
Madurai
3.The Superintendent of Prison
Madurai Central Prison
Madurai District
4.The Secretary
Advisory Board
32, Rajaji Salai
Singaraveler Maligai
Chennai Collectorate
Chennai
5.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai