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2012 DIGILAW 2789 (MAD)

Vinod @ Poothar v. State of Tamil Nadu

2012-07-04

K.N.BASHA, P.DEVADASS

body2012
Judgment :- P.DEVADASS, J. 1. The petitioner, who has been branded as a 'Goonda' and detained under Act No.14 of 1982 by the Commissioner of Police, Chennai, challenges his detention order dated 27.12.2011. 2. Among various grounds, one of the ground raised by him in the affidavit filed in support of the writ petition is that there is complete infraction of Section 8 of Act No.14 of 1982 and on account of that he has been prevented from making effective representation guaranteed to him under Article 22(5) of the Constitution of India. 3. The learned counsel for the petitioner contended that as per Section 8 of Act No.14 of 1982 within 5 days from the date of detention, the grounds of detention has to be served on the detenu. It is mandatory. However, the grounds of detention has not been served upon the detenu as mandated. 4. The respondents in their counter denied this allegation. We have heard the learned Additional Public Prosecutor. 5. We have anxiously considered the submissions of the learned counsels. Perused the materials placed before us. 6. It is apposite hereto to notice the provisions of Section 8 of the Act No.14 of 1982, which runs as under:- "8. Grounds of order of detention to be disclosed to persons affected by the order:- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be,but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. (Emphasis supplied by us) 7. The said provisions of Section 8 (1) is simple, clear, unambiguous and admit of any difficulty in understanding it. It is couched in mandatory language. It is a statutory direction to the Executive, the Detaining Authority. So, no exception to be made to it. The idea is to enable the detenu to make effective representation, which has been constitutionally promised to him under Article 22 (5) of the Constitution of India. 8. In this case, the detention order has been passed on 27.12.2011. It was served on him on 28.12.2011. So, no exception to be made to it. The idea is to enable the detenu to make effective representation, which has been constitutionally promised to him under Article 22 (5) of the Constitution of India. 8. In this case, the detention order has been passed on 27.12.2011. It was served on him on 28.12.2011. Now, calculating the 5 days contemplated in Section 8 of Act No.14 of 1982, that is to say, from 28.12.2011, it ends on 01.01.2012. So, grounds of detention should be served him by 01.01.2012. Admittedly, it was served on the detenu only on 02.01.2012. Thus, it is a clear case of non-observation of the mandatory provision incorporated in Section 8 of Act No.14 of 1982. On this ground alone the detention order is vulnerable and vitiated. 9. In the result, the Habeas Corpus Petition is allowed. The detention order dated 27.12.2011 is set aside. The Superintendent, Central Prison, Chennai is directed to release the detenu from jail, if his further custody is no longer required in connection with any other case.