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K. KALIYA PERUMAL versus THE SECRETARY TO GOVERNMENT

High Court of Madras

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K. Kaliya Perumal v. The Secretary to Government - H.C.P. No. 231 of 2005 [2005] RD-TN 407 (23 June 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 23/06/2005

Coram

The Hon'ble Mr. Justice P. SATHASIVAM

and

The Hon'ble Mr. Justice AR. RAMALINGAM

H.C.P. No. 231 of 2005

K. Kaliya Perumal,

S/o. Karuppaiah,

No.9, Valluva Pandaram Street,

Otteri, Chennai-600 012. .. Petitioner.

-Vs-

1. The Secretary to Government,

Prohibition and Excise Department,

Fort St. George, Chennai-9.

2. The Commissioner of Police,

Greater Chennai, Egmore,

Chennai-600 008. .. Respondents.

Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for records in connection with the order of detention passed by second respondent dated 3 1-01-2005 in Memo No. 27/BDFGISV/2005 against petitioner's son Panju @ Masthan @ Saravanan, male, aged 24 years, who is confined at Central Prison, Chennai, and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For petitioner:- Mr. T.K. Sampath for T.K. Sampath Associates.

For respondents:- Mr. Abudukumar Rajarathinam, Govt., Advocate (Criminal Side).

:ORDER



(Order of Court was made by P. Sathasivam, J.,) K. Kaliya Perumal, father of detenu-Panju @ Massthan @ Saravanan, challenges the detention order dated 31-01-2005 detaining the detenu as "Goonda" under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 ( Tamil Nadu Act 14 of 1982).

2. Learned counsel appearing for the petitioner, after taking us through the grounds of detention and all other connected materials, has raised the following materials:

(i) English version of the grounds of detention varies with the Tamil version, particularly the scene of occurrence and the variation has confused the mind of the detenu in making an effective representation, hence the ultimate order of detention is vitiated;

(ii) Pre detention representation dated 26-1-2005 was not placed before the Advisory Board and not properly considered;

(iii) The detenu has made a representation to the detaining authority as well as to the Government on 4-2-2005, though detaining authority passed an order, the Government have not considered the said representation and it merely communicated the decision taken by the detaining authority which is not in consonance with the well established principles.

3. Coming to the first contention, Mr. T.K. Sampath, learned counsel appearing for the petitioner by drawing our attention to para 3 of the grounds of detention both English and Tamil version, would submit that the place of occurrence though correctly stated in the Tamil version, there is omission of the same in the English version supplied to the detenu. Since, according to him, the scene of occurrence varies, the detenu had confusion in making representation. A perusal of para 3 of Grounds in Tamil version shows that the complainant-Sowgath Ali, son of Abdul Majith, aged about 40 is residing at No.3 5, V.V. Koil Street, Otteri, Chennai-12. The next sentence shows that he is running a tiffin stall in the name of Thamim Ansari at No.54, Strahans Road, Otteri, Chennai-12. In the English version of the grounds of detention, it is not in dispute that the residential address of the complainant Sowgath Ali has been properly stated. The date and time i.e., "at about 11 Hours on 23-1-2005" is also properly stated. However, instead of referring to Shop No.54, Strahans Road, Otteri, in the English version, it merely refers to as "tiffin shop". The comparison of both English and Tamil versions would show that though a reference has been made to a tiffin shop and Door No.54 at Strahans Road, Otteri has been stated in the Tamil version, the said Door Number and street have not been mentioned in the English version. Learned Government Advocate by drawing our attention to the documents supplied in the form of paper book, would contend that except failure to state No.54, Strahans Road in the English version of the grounds of detention, in the Tamil version as well as in all other documents supplied to the detenu, the scene of occurrence has been correctly stated; hence, according to him, the detenu being unaware of the English language and is conversant with Tamil, this negligible omission in the English version would not affect the right of the detenu to make a representation. We are unable to appreciate the contention of the learned Government Advocate for the following reasons.

4. As pointed out by Mr. T.K. Sampath, the place of occurrence dominates and unless it is specifically stated both in English and Tamil versions in the grounds of detention, it would create confusion in the mind of the detenu while making representation under Article 22 (5) of the Constitution. It would be useful to refer a judgement of the Supreme Court in UNION OF INDIA AND ANOTHER Vs. SHANTARAM GAJANAN KANEKAR AND ANOTHER, reported in 1994 Supreme Court Cases (Cri) 1496. In the case before the Supreme Court, it is not disputed that the detenu did not know English and he was conversant with Marathi language only. Marathi version of declaration under Section 9 (1)COFEPOSA Act was furnished to the detenu. He was served with grounds of detention and all other connected materials with Marathi version. The detenu questioned the order of detention as also the declaration issued under Section 9 (1) of the COFEPOSA Act on various grounds. The principal objection raised on behalf of the detenu before the High Court was that the Marathi version of the declaration under Section 9 (1) of the Act did not tally with its counterpart in English and due to that defect, the detenu was prevented from making an effective representation under Article 22 (5) of the Constitution. On verification the High Court found that the two versions of the declaration did not tally with each other, and that the translated version of the declaration under Section 9 (1) of the Act was defective and opined that it was not possible for the detenu to make an effective representation. Therefore, the order of detention was quashed. The Hon'ble Supreme Court upheld the order of the High Court and dismissed the appeal filed by Union of India. In the case on hand, it is not in dispute that Tamil version of grounds of detention did not tally with its counterpart in English. No doubt, in the other documents such as First Information Report, seizure mahazar etc., the scene of occurrence has been specifically stated. Admittedly, the same did not find place in the English version of the grounds of detention and applying the ratio laid down in the above referred Supreme Court decision, the learned counsel for the petitioner is right in contending that the detenu was prevented from making an effective representation under Article 22 (5) of the Constitution. We agree with the said contention.

5. In S. MUNIAPPAN Vs. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, VELLORE DISTRICT, VELLORE AND OTHERS, reported in 1998 (2) Madras Weekly Notes (Crl.)374, a Division Bench of this Court, after finding that some portion found in the English version of the detention order is missing in the translated Tamil version of the detention order and the same is a fatal one, quashed the order of detention on the ground of non-application of mind of the detaining authority. The said decision is also helpful to the case on hand.

6. In MANU @ BOOPATHY Vs. THE SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT, reported in 2005 (1) CTC 47, a Division Bench of this Court in similar circumstance, quashed the order of detention on the ground of defective translation. In the light of catena of decisions and of the fact that the English version of grounds of detention did not tally with its counterpart in Tamil and due to that defect, we hold that the detenu was prevented from making an effective representation under Article 22 (5) of the Constitution of India; accordingly the said defective translation would make the detention order vitiated. In view of our conclusion on the first point, it is unnecessary to consider the other two points raised by the learned counsel for the petitioner.

7. Under these circumstances, the impugned order of detention is quashed. The detention order is set aside and the petition is allowed. The detenu is directed to be set at liberty forthwith from the custody unless his detention is required for any other cause.

R.B.

Index:- Yes.

Internet:- Yes.

To:

1. The Secretary to Government,

Prohibition and Excise Department,

Fort St. George, Chennai-9.

2. The Commissioner of Police,

Greater Chennai, Egmore, Chennai-600 008.

3. The Superintendent,

Central Prison,Chennai-3 (in duplicate for

communication to detenu).

4. The Joint Secretary to Government,

Public (Law and Order), Fort St. George, Chennai-9. 5. The Public Prosecutor,

High Court, Madras.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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