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Duraisamy v. The State of Tamil Nadu - H.C.P.(MD).No.422 of 2006  RD-TN 755 (1 March 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
H.C.P.(MD).No.422 of 2006
Duraisamy ... Petitioner
1. The State of Tamil Nadu
The Secretary to
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort St. George,
Chennai - 9.
2. The District Magistrate and
Tirunelveli. ... Respondents Prayer
Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus calling for the records relating to the detention order passed by the second respondent in detention order M.H.S.Confdl.No.10 of 2006 dated 12.08.2006 and quash the same and direct the respondent to produce the body of the detenu, Duraisamy, S/o.Sankali, now detained at the Central Prison, Palayamkottai before this Honourable Court and set him at liberty. For Petitioner : Mr.C.Mayil Vahana Rajendran
For Respondents: Mr.S.P.Samuel Raj
Additional Public Prosecutor
The challenge in this Habeas Corpus Petition is as against the detention order passed by the second respondent vide M.H.S.Confdl.No.10 of 2006 dated 12.08.2006 and for quashing the same and direct the respondent to produce the body of the detenu, Duraisamy, S/o.Sankali, now detained at the Central Prison, Palayamkottai before this Honourable Court and set him at liberty.
2. The facts giving rise to the filing of this petition as stood exposited from the averments/allegations in the affidavit accompanying the petition inter alia could be portrayed thus:
(i) The detention order dated 12.08.2006 under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), was passed as against the detenu namely, Duraisamy, the petitioner herein, dubbing him as a sand offender. The father of the petitioner by his representation dated 27.07.2006 made allegations as against the sponsoring authority to the second respondent who is the detaining authority. But, such representation was not considered by the second respondent before passing the detention order. The wife of the petitioner sent her representation dated 16.08.2006 to the detaining authority making allegations as against the sponsoring authority and it was considered by the detaining authority, but rejected by his letter dated 18.08.2006. The detaining authority failed to submit the representation as well as the rejection order passed by him to the Government. Before the Advisory Board, the said representation dated 18.08.2006 was not placed. On 24.08.2006, another representation was sent by the wife of the petitioner and it was disposed of in a mechanical manner on 08.09.2006.
(ii) The petitioner submitted his representation dated 11.12.2006 to the Government directly through the Superintendent, Central Prison, Palayamkottai, making allegations as against the sponsoring authority. But, it was not considered. The book-let supplied to the petitioner was not legible at page Nos.7, 16 and 16(a). The petitioner's representation dated 11.12.2006 for obtaining legible copies was not responded to positively. (iii) The petitioner was arrested on 15.07.2006 and produced before the learned Judicial Magistrate, Sivagiri on the same day and was remanded to judicial custody upto 11.08.2006. But, the book-let supplied to him contains documents relating to the remand report upto 28.07.2006 only. His representation dated 11.08.2006 was not considered in that connection. The family members of the petitioner was not informed about the detention of the petitioner. The English version of the detention order was not properly translated into Tamil. Accordingly, the petitioner prayed for setting aside the detention order.
3. Per contra, denying and disputing, challenging and gainsaying the averments/allegations in the affidavit of the petitioner, the second respondent filed the counter inter alia with the averments which would run thus:
(i) The petitioner was at the relevant time of passing the detention order a sand offender within the meaning of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). No pre-detention representation made on behalf of the detenu, was received by the detaining authority, the second respondent. The representation dated 27.07.2006 by the father of the petitioner was received by the second respondent only on 18.08.2006 and the detaining authority considered it. Had the detenu wanted to make representation to the Advisory Board or to the Government, he could have done it. The representation dated 24.08.2006 made by the wife of the detenu was received by the office of the second respondent on 25.08.2006 and remarks from the sponsoring authority were obtained on 28.08.2006 and the remarks were submitted to the Government on 30.08.2006 itself and there was no delay.
(ii) The representation dated 11.12.2006 of the detenu was received by the office of the second respondent on 19.12.2006 and remarks of the sponsoring authority were obtained on 20.12.2006 and the remarks were sent to the Government on 20.12.2006 itself. The copies furnished to the detenu were legible. Necessary intimation about the detention of the petitioner/detenu was served on his wife Valli at 09.00 hours on 16.08.2006. The proper Tamil translation was furnished. Accordingly, the detaining authority prayed for the dismissal of the petition.
4. Heard both sides in entirety.
5. The point for consideration is as to whether the order of detention has to be quashed in view of the grounds as found set out in the affidavit of the petitioner?
6. The perusal of the Government Order approving the detention order dated 12.08.2006 would demonstrate that the representation dated 27.07.2006 submitted by the father of the petitioner, the representation dated 24.08.2006 submitted by the wife of the petitioner and the representation dated Nil of the detenu were considered by the Advisory Board and the Government on considering the materials, approved the detention order passed by the second respondent. As such, the grounds raised relying on the alleged non-consideration of these representations are all turned to be baseless.
7. The learned Counsel for the petitioner, would advance his argument that the detaining authority should have submitted the representation of the wife of the petitioner, dated 16.08.2006, made to the second respondent and the order of rejection dated 18.08.2006 passed by the second respondent, should have been submitted before the Government and the Advisory Board ought to have considered it.
8. Torpedoing and challenging such a contention of the learned Counsel for the petitioner, the learned Additional Public Prosecutor by relying on the decision of the Honourable Apex Court in Sri Anand Hanumathsa Katare v. Additional District Magistrate reported in (2007) 1 Supreme Court Cases (Cri) 102, would argue that the representation made to the detaining authority could be disposed of by the detaining authority itself and it was not duty bound to submit the representation as well as the rejection order to the Government for placing it before the Advisory Board. Certain excerpts from the aforesaid decision of the Honourable Apex Court, would run thus: "10. Therefore, the detaining authority becomes functus officio the moment the approval is accorded by the State Government. It is to be noted that the order of detention can be revoked only on the basis of a representation to the appropriate authority. This fact is relevant. Further para 17 of R.Keshava v. M.B.Prakash [2001 (2) SCC 145 : 2001 SCC (Cri) 289] is of importance. The same reads as follows: (SCC p.154)
"17. We are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate Government/authorities against his order of detention as mandated in Article 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. In the absence of representation or the knowledge of the representation havign been made by the detenu, the appropriate Government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal.
11. At this juncture it would be relevant to take note of paras 17 to 19 of Union of India v. Paul Manickam [2003 (8) SCC 342 : 2004 SCC (Cri) 239]. They read as follows: (SCC pp. 354-55)
17. Coming to the question whether the representation to the President of India meets with the requirement of law, it has to be noted that in Raghavendra Singh v. Supdt., District Jail, Kanpur and Rumana Begum v. State of A.P., it was held that a representation to the President of India or the Governor, as the case may be, would amount to representation to the Central Government and the State Government respectively. Therefore, the representation made to the President of India or the Governor would amount to representation to the Central Government and the State Government. But, this cannot be allowed to create a smokescreen by an unscrupulous detenu to take the authorities by surprise, acting surreptitiously or with ulterior motives. In the present case, the order (grounds) of detention specifically indicated the authority to whom the representation was to be made. Such indication is also a part of the move to facilitate an expeditious consideration of the representations actually made. ....
19. .... If really the citizen concerned genuinely and honestly felt or was interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the real authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration any cry for relief on his own manipulated ground, by directing his representation to any authority which is not directly/immediately concerned with such consideration." [emphasis supplied]
9. The above excerpts from the judgment of the Honourable Apex Court and over and above that, the entire perusal of the judgment, would clearly indicate that after the detention order was passed, the detenu or on behalf of the detenu, the persons concerned, should address the appropriate authority. It is quite obvious as per the Act 14 of 1982, the appropriate authority was the State Government. But, admittedly, the representation dated 16.08.2006 was not addressed to the State Government, but it was only addressed to the detaining authority who admittedly rejected it on 18.08.2006 within twelve days, so to say before approval by the Government and in such a case, the second respondent had authority to consider it. Accordingly, the second respondent considered it and rejected by the order dated 18.08.2006. In such a case, the question of detaining authority placing before the Government, the said representation dated 16.08.2006 and the rejection order dated 18.08.2006 does not arise. The ground of detention dated 12.08.2006 served on the detenu would clearly highlight that within twelve days, he could make the representation by addressing to the Secretary to Government of Tamil Nadu, Prohibition and Excise Department, Fort St. George, Chennai - 9, through the Superintendent, Central Prison, Palayamkottai. But, admittedly, the said representation was not addressed to the appropriate authority. The representation dated 24.08.2006, was admittedly rejected by the Government by its order dated 08.09.2006. The plea of mechanical disposal is not fortified or buttressed by any fact on record.
10. In such view of the matter, there is no substance in the contention of the learned Counsel for the petitioner. The other grounds raised in the affidavit, were not argued with reference to the facts available on record, even then, we proceed to analyze those grounds also. There is nothing to show that in what way the alleged illegible copies at page Nos.7, 16 and 16(a) of the book-let, prevented the detenu from making effective representation. In paragraph No.7 of the counter affidavit, the second respondent specifically contended that page Nos.7, 16 and 16(a) furnished to the detenu were readable and understandable. During arguments, the alleged unreadable book-let furnished to the detenu was not produced before this Court for consideration also.
11. Relating to the contention that the detention order was not intimated to the relatives of the detenu has been countered by the second respondent by referring to the fact that at 09.00 hours on 16.08.2006, the said detention order was communicated. In fact, the contention of the petitioner is antithetical to his own one other ground as set out in the affidavit that even after the detention order, the representation was made by his wife. Had really, she was not aware of the detention, she could not have made any representation. Concerning the improper Tamil translation, during arguments, nothing was highlighted and accordingly, that ground also fails.
12. No other ground was urged. Hence, there is no merit in this petition.
13. In the result, this Habeas Corpus Petition fails and the same is dismissed.
1. The Secretary to
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort St. George,
Chennai - 9.
2. The District Magistrate and
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