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2010 DIGILAW 37 (MAD)

Queen Mary W/o. Ethiraj v. State rep. by the Secretary to Government & Another

2010-01-02

C.NAGAPPAN, P.R.SHIVAKUMAR

body2010
Judgment :- P.R. Shivakumar, J. 1. The order of detention passed by the second respondent directing the detention of the detenu Eli @ Jayakumar is impugned in this Habeas Corpus Petition by the petitioner, who is the mother of the detenu. 2. The second respondent herein has passed the impugned order, dated 18.4.2009, made In BDFGISSV No.24/2009, holding the detenu to be a goonda and expressing satisfaction that his presence at large will be detrimental to the maintenance of public order. To arrive at such a satisfaction, the Detaining Authority has relied on seven adverse cases, viz., (1) Crime No.335/2008 registered on the file of Pazhavanthangal Police Station for offences punishable under Sections 457 and 380, I.P.C., (2) Crime No.366/2008 registered on the file of Pazhavanthangal Police Station for offences punishable under Sections 457 and 380, I.P.C., (3) Crime No.363/2008 registered on the file of Pazhavanthangal Police Station for offences punishable under Sections 341, 324, 427, 385, 506(ii) r/w Section 397, (4) Crime No.556/2008 registered on the file of Madipakkam Police Station for offences punishable under Sections 457 and 380, I.P.C., (5) Crime No.247/2009 registered on the file of Selaiyur Police Station for offence punishable under Section 379, I.P.C., (6) Crime No.88/2009 registered on the file of Chitlapakkam Police Station for offence punishable under Section 379, I.P.C., and (7) Crime No.187/2009 registered on the file of Chitlapakkam Police Station for offences punishable under Section 379 @ 392, I.P.C. and the ground case in Crime No.219/2009 on the file of Chitlapakkam Police Station for offences punishable under Sections 341, 392, 336, 427 and 506(ii), I.P.C.. 3. Though the petitioner has assailed the order of detention on several grounds set out in the Petition, the learned counsel for the petitioner mainly relies on the following two grounds: (i) The paper book supplied to the detenu contains illegible copies, depriving the detenu of his valuable right of making an effective representation at the earliest point of time for revocation of the detention order. (ii) The fact of intimation of arrest of the detenu has not been supported by documents, supplied to the detenu in the form of paper book. 4. The learned counsel for the petitioner has drawn our attention of pages 128 to 132 of the paper book wherein xerox copies of the Arrest Memo and the Remand Report are available. (ii) The fact of intimation of arrest of the detenu has not been supported by documents, supplied to the detenu in the form of paper book. 4. The learned counsel for the petitioner has drawn our attention of pages 128 to 132 of the paper book wherein xerox copies of the Arrest Memo and the Remand Report are available. The learned counsel for the petitioner submits that the contents of those pages are either smudged or illegible. According to the learned counsel for the petitioner, though the Arrest Memo contains a recital to the effect that the petitioner herein, namely, the mother of the petitioner, was informed by a telegram, neither the receipt nor a copy of the telegram has been supplied to the detenu. 5. We have heard the argument advanced by Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor, representing the State, on the above points raised by Mr. S. Swamidoss Manokaran, learned counsel appearing for the petitioner. 6. We have also paid our attention to the documents available in the paper book. Upon such perusal, we are satisfied with the contention of the learned counsel for the petitioner that the copies of the important documents like Arrest Memo and the Remand Report are not legible and by supplying such illegible copies of the said documents, the detenu has been deprived of the right of making an effective representation at the earliest point of time for revocation of the detention order. Of course, the second respondent, has filed the counter affidavit stating that the copies supplied to the detenu are legible and that if the detenu makes a representation for supply of more clear copies, the same will be supplied. The expectation of the Detaining Authority that the detenu should apply for supply of legible copies itself is an erroneous assumption when the personal liberty of a person is sought to be denied by resorting to the provisions of Preventive Detention Laws. Every real opportunity must be given to the detenu to make an effective representation at the earliest. In this case, it is a fact that copies of a number of documents supplied to the detenu in the paper book are not legible and that the same will amount to denial of reasonable opportunity to make an effective representation at the earliest point of time. 7. In this case, it is a fact that copies of a number of documents supplied to the detenu in the paper book are not legible and that the same will amount to denial of reasonable opportunity to make an effective representation at the earliest point of time. 7. So far as the other ground, namely, non-supply of copy of the receipt for having sent the telegraphic intimation to the petitioner regarding the arrest of the detenu and copy of the contents of the telegraphic message is concerned, it is the contention of the learned Additional Public Prosecutor that the receipt for having sent the telegram has been incorporated in the copy of the Arrest Memo, which is found at page 128 of the paper book. However, the learned Additional Public Prosecutor admits that a contents of the telegram have not been proved by producing the certified copy of the same. It is also admitted that the certified copy of the telegram was neither made available to the Detaining Authority nor supplied to the detenu. It is true that the receipt for having sent the telegraphic message to the detenu was copied by xeroxing the same in the intermittence space available in the Arrest Memo itself. At the first instance, we ourselves were not able to recognise the same to be the copy of the receipt evidencing the dispatch of the telegraphic intimation. Only when the learned Additional Public Prosecutor drew our attention to the said part of the document found at page 128 of the paper book, we were able to understand that the same was a copy of the receipt for having sent the telegram. However, there is nothing in the said copy of the receipt to show that the said telegram was addressed to the petitioner herein. In this regard, attention of this Court was drawn to the unreported order of another Division Bench of this Court, made in Syed Abdul Khadar & Appu @ Akash v. State, rep. by Secretary to Government and another, dated 16.12.2009, H.C.P. No.1787 of 2009. The relevant portion of the said order reads as follows: “9. Further, as pointed out by the learned counsel for the petitioner, it is mandate that immediately after arrest, the reason for arrest should be informed to the close relatives. In the instant case, information was passed on to the wife of the detenu through telegraphic message. The relevant portion of the said order reads as follows: “9. Further, as pointed out by the learned counsel for the petitioner, it is mandate that immediately after arrest, the reason for arrest should be informed to the close relatives. In the instant case, information was passed on to the wife of the detenu through telegraphic message. But the copy of the telegram was neither placed before the Detaining Authority nor given to the detenu. Under such circumstances, duty is cast upon the Detaining Authority to call for necessary clarification in this regard but he has not done so, which would be indicative of the fact, the non-application of mind on the part of the Detaining Authority.” 8. We are in complete agreement with the above said observation made in the Order relied on by the learned counsel for the petitioner. Therefore, we come to the conclusion that there is denial of opportunity by non-furnishing legible copies of the documents relied on by the Detaining Authority and also by the failure to furnish the copy of the telegram allegedly sent to the petitioner informing her about the arrest of the detenu. We do have no hesitation for coming to the conclusion that the same will vitiate the Order of detention. 9. In the result, the HabeasCorpus Petition is allowed and the impugned detention order is set aside. The detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.