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1994 DIGILAW 1062 (MAD)

M. Manoharan v. The District Magistrate and Collector, Chingleput M. G. R. District & Others

1994-12-14

JANARTHANAM, THANGAMANI

body1994
Judgment :- Janarthanam, J. The petitioner detenu, it is said, is a bootlegger. Apart from the ground case as set out in the grounds of detention, he had come to adverse notice in six cases. The District Magistrate and District Collector, Chengalpattu M.G.R. District at Kancheepuram (first respondent) in exercise of the power conferred in Sub-sec. (1) of Sec. 3 of the Tamil Nadu Act 14 of 1982 clamped, the order of detention on the detenu in his proceedings in B.D.F.G.I.S. No. 19 of 1994, dated 22. 1994, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order and health. 2. Mr.M. Ajmeer Ali learned counsel appearing for the petitioner would press into service the sole and lone point that certain vital documents, viz., the bail application and the order passed thereon releasing him on bail which had been asked for to furnish, had not been furnished to him and therefore, he was unable to make an effective representation and in that view of the matter, the impugned order of detention is liable to be set aside. Mr. Regupathi learned Additional Public Prosecutor would state that though the copy of the bail order had been furnished to the detenu, yet the copy of the bail application had not at all been furnished to him and such being the case, in the light of the pronouncement of the Apex Court on this aspect of the matter, he was rather handicapped in making an effective repulsion of the submission emerging from the other side. 3. In the booklet supplied to the petitioner/detenu as stated by the learned Additional Public Prosecutor, the copy of the order of bail alone had been granted to the detenu and the copy of the bail application had not at all been granted. At this juncture, it becomes relevant the constitutional imperatives as adumbrated in Art. 22(5). They are, (1), the detaining authority must, as soon as may be i.e. as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention. They are, (1), the detaining authority must, as soon as may be i.e. as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention. The right is to make an effective representation and when some documents are referred to or relied on in the grounds of detention, without copies of such documents the grounds of detention would not be complete. The detenu has, therefore, the right to be furnished with the grounds of detention along with the documents so referred to or relied on. If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an effective representation. In Abdul Sathar Ibrahim Manik v. Union of India, A.I.R. 1991 S.C. 2261, the Supreme Court states as follows: “In a case where detenu is released on bail and is at liberty at the time of passing the order of detention then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case, the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.” On the law laid down by the Supreme Court as above, it is apparent that the bail application and the order granting bail should have been not only necessarily placed before the detaining authority but also such copies should have been supplied to the detenu so as to enable him to make an effective representation, or otherwise it would tantamount to denial of right to make an effective representation. 4. As already indicated, the petitioner, detenu had been furnished only the copy of the bail order in the booklet supplied to him and not the copy the bail application.. 5. For the reasons as above, the impugned order of detention shall stand set aside. The petitioner/detenu is directed to be set at liberty forthwith unless his detention is otherwise required. Habeas corpus petition is thus allowed.