Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1324 (MAD)

Ratha v. The State of Tamilnadu & Others

2005-08-10

A.R.RAMALINGAM, P.SATHASIVAM

body2005
Judgment :- (Habeas Corpus Petition for calling for the records relating to the order passed by the second respondent in C.P.O./T.C/I.S/D.O. No.9 of 2005 dated 4.3.2005 and quash the same and further direct the respondents to produce the body of the detenu viz., Ratha before this court who is now confined at Central Prison, Trichy.) AR. Ramalingam, J. The detenu viz., Ratha himself has challenged the detention order passed against him in C.P.O./T.C/I.S/D.O. No.9 of 2005 dated 4.3.2005 by the second respondent in this writ petition. 2. Learned counsel appointed by the State Legal Aid Authority appearing on behalf of the detenu has raised so many grounds and mainly raised a ground stating that the representation, prepared by him on behalf of the detenu was sent to the Superintendent of Central Prison, Trichy, wherein the detenu is detained, for the purpose of getting the signature of the detenu in the representation and submitting the same to the Government and returning the signed affidavit to him for the purpose of filing writ petition, has been simply returned by the Superintendent of the Central Prison without assigning any reason. He further, with emphasis, contended that because of such action of the Superintendent, Central Prison, necessary representation could not be submitted to the Government and thereby opportunity has been denied to the detenu to putforth his contentions before the Government, which consequently, vitiates the very detention order itself. 3. In support of the specific contention, the Legal Aid Counsel brought to our notice that in pursuance of his appointment as Legal Aid counsel to appear on behalf of the detenu, he prepared the representation and sent the same by registered post with acknowledgment due along with a covering letter to the Superintendent, Central Prison, Trichy for the purpose of getting the signature of the detenu in the representation and submitting the same to the Government directly and returning the signed affidavit for the purpose of filing the writ petition and he has also produced a copy of the covering letter addressed to the Superintendent, Central Prison, Trichy dated 1.4.2005, a copy of the representation prepared on behalf of the detenu Ratha dated 1.4.2005, a copy of the acknowledgment card signed by the Superintendent, Central Prison, Trichy dated 4.4.2005 with postal seals and a copy of the returned cover addressed to him. Therefore, the valuable opportunity available for the detenu Ratha has been denied by the conduct of the Superintendent, Central Prison, Trichy to putforth the contentions of the detenu against the detention order passed against him. 4. When this aspect was referred to the Government Advocate (Criminal Side), he submitted that the Legal Aid counsel is not expected to prepare the representation on behalf of the detenu and send it for the signature of the detenu to the Superintendent, Central Prison, Trichy and instead he would have directly sent the representation to the Government and the Superintendent, Central Prison, Trichy is also not expected to get the signature of the detenu viz., Ratha in the prepared representation as well as affidavit and consequently, send the representation to the Government and return the signed affidavit to the Legal Aid counsel and thereby no authority can be faulted. 5. However, such submission of the Government Advocate (Criminal Side) cannot be accepted as a reasonable one. Further, the Legal Aid counsel appearing for the petitioner also brought to our notice the following rulings:- i) Unreported order in H.C.P.No.2164 of 2002 dated 10.4.2003 (RAJI v. THE STATE OF TAMIL NADU AND OTHERS) (Division Bench of this court); ii) MOHAMED BADUSHA v. STATE OF TAMIL NADU (Division Bench of this court) ( 1997(II) CTC 756 ); iii) P.N.A. HYDER ALI v. STATE OF TAMIL NADU (Division Bench of this court) (1997 (III) CTC 486); and iv) B.ALAMELU v. STATE OF TAMIL NADU AND OTHERS (Full Bench of the Supreme Court) (1994(3) CRIMES 828); wherein in more or less similar circumstance, it has been held that when there is record to show that the representation of the detenu was received by the Superintendent, Central Prison, it should have been forwarded to the Government and if not forwarded, the detention order against the detenu cannot be construed as a valid one as if there is excuse on the part of the Government by saying that no representation was received. Whatever it may be, we are of the view that in all fairness, that too when liberty of an individual is in question on the strength of the detention order under Act 14/1982, the Superintendent, Central Prison, Trichy ought to have sent the representation to the Government for consideration at the earliest point of time. Therefore, the detention order against the petitioner gets vitiated on this ground. 6. Therefore, the detention order against the petitioner gets vitiated on this ground. 6. No doubt, the petitioner has raised so many other grounds, but, the learned Government Advocate (Criminal Side) has rightly met with those grounds not only by filing counter but also by bringing to our notice that all those grounds are not sustainable in the light of the concerned materials supplied in the book form. 7. Accordingly, the Habeas Corpus Petition is allowed. The detention order is set aside. The detenu is set at liberty unless his detention is required for any other case.