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2015 DIGILAW 3610 (MAD)

Subbammal v. State of Tamil Nadu

2015-11-06

P.R.SHIVAKUMAR, V.S.RAVI

body2015
ORDER : P.R. Shivakumar, J. 1. The petitioner is the wife of the detenu, namely Palani, S/o. Subbaiah Thevar, aged about 54 years. The detenu was detained by the second respondent by his Detention Order dated 08.06.2015, made in M.H.S. Confdl. No. 66/2015, holding him to be a "Drug Offender", as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982 and taking note of the ground case in Crime No. 27 of 2015 registered on the file of Narcotic Intelligence Bureau, Kanniyakumari District, for alleged offence punishable under Section 8(c) read with 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act and the adverse cases in Crime No. 22 of 2014 registered on the file of Narcotic Intelligence Bureau, Kanniyakumari District for alleged offence punishable under Section 8(c) read with 20(b)(ii)(A) of Narcotic Drugs and Psychotropic Substances Act, Crime No. 42 of 2014 registered on the file of Narcotic Intelligence Bureau, Kanniyakumari District, for alleged offence punishable under Section 8(c) read with 20(b)(ii)(A) of Narcotic Drugs and Psychotropic Substances Act and Crime No. 22 of 2015 registered on the file of Nanguneri Police Station, Tirunelveli District, for alleged offence punishable under Section 8(c) read with 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act. 2. Though a number of grounds have been raised in the affidavit filed in support of the petition to assail the order of Detention, the learned counsel for the petitioner mainly relies on the contention that the Detaining Authority, who received a representation dated 18.06.2015 from the petitioner, who is none other than the wife of the detenu, without referring the same to the Government, chose to pass an order of rejection rejecting the said representation on 22.06.2015, namely, after the Detention Order was approved by the Government and that the said rejection order should be viewed as one passed by an authority which had become functus officio. 3. The learned Additional Public Prosecutor, relying on the averment found in the counter statement, would contend that the rejection order was not the one passed by the Detaining Authority and it was nothing but the endorsement of the order passed by the Government. In this regard, the following particulars have been furnished in the counter-affidavit: "(a) Representation dated 18.06.2015 submitted by the detenu's wife was received on 19.06.2015. (b) Remarks called for from the Sponsoring Officer on the same day. In this regard, the following particulars have been furnished in the counter-affidavit: "(a) Representation dated 18.06.2015 submitted by the detenu's wife was received on 19.06.2015. (b) Remarks called for from the Sponsoring Officer on the same day. (c) Remarks received from the Sponsoring Officer on 22.06.2015. (d) Remarks sent to the Government on 22.06.2015. (e) Necessary endorsement was sent to the petitioner on 22.06.2015." 4. Admittedly, the order of rejection dated 22.06.2015 was passed by the Detaining Authority and by the time the said order came to be passed, the Detention Order was approved by the Government rejecting the earlier representation of the petitioner dated 16.06.2015. As such, there is substance in the contention of the learned counsel for the petitioner that the rejection order dated 22.06.2015 came to be passed by the Detaining Authority, who had then become functus officio. In this regard, the learned counsel for the petitioner drew our attention to the order of a Division Bench of this Court dated 27.02.2013 in H.C.P.(MD) No. 96 of 2013 (Indira v. The Additional Secretary, Government of India and others) and another order of a Division Bench of this Court in H.C.P.(MD) No. 488 of 2008 [Ravinthiran @ John Ravinthiran v. State of Tamil Nadu] reported in 2009(1) MLJ (Crl) 721]. 5. The relevant passages in the above said judgment in Ravinthiran's case relied on by the learned counsel for the petitioner are extracted hereunder: "5. Section 3(3) of the Tamil Nadu Act 14 of 1982 reads as follows: "(3) When any order is made under this Section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government." No doubt, as prescribed above, the Detaining Authority has rightly forwarded the file for approval to the Government within 12 days and it was approved on 15.4.2008. But, it is seen that the Detaining Authority, after approval of the detention on 15.4.2008, failed to forward the representation to the Government but proceeds to dispose of the same on 24.4.2008, which exercise is totally unwarranted on his part. But, it is seen that the Detaining Authority, after approval of the detention on 15.4.2008, failed to forward the representation to the Government but proceeds to dispose of the same on 24.4.2008, which exercise is totally unwarranted on his part. In such a situation, the Detaining Authority has no power to deal with or pass orders on the representation. It is useful to extract here the observation of the Division Bench in the case as Rajeswari v. Secretary to Government, Prohibition and Excise Department and Another (supra). "5.............. It is true that the Government approved the detention order on 18.11.2005. In such circumstances, having received the representation on 21.11.2005 by the District Collector, it is but proper on his part to forward the same to the Government, since after approval of the detention order by the Government, he has no power to pass an order on the representation...................... " Likewise, in Puranlal Lathanlal v. Union of India, (1958) Crl.LJ 283, it was held thus: "the detaining authority is obliged to forward all the subsequent materials having a bearing on the matter to the Government and to the Board and that otherwise the action of the detaining authority in withholding of subsequent information tending to falsify or belie the earlier materials on which the detention order was passed, would stand unchallenged and there is a danger of withholding all materials on the matter in issue in order to sustain the order of detention, which would definitely lead to a situation where the personal right and liberty of a person would be at stake at the hands of the Executive and the safeguard provided by the Constitution for the protection thereof would be impaired." 6. Thus, when the Detaining Authority, exceeding his powers, has erroneously taken up the exercise of dealing with the representation and further, when such representation was not considered by the Government, we are of the considered view that the detenu is greatly prejudiced and his valuable right is taken away; as a result, the ultimate order of detention is vitiated." 6. Thus, when the Detaining Authority, exceeding his powers, has erroneously taken up the exercise of dealing with the representation and further, when such representation was not considered by the Government, we are of the considered view that the detenu is greatly prejudiced and his valuable right is taken away; as a result, the ultimate order of detention is vitiated." 6. A perusal of the particulars found in the counter-affidavit in comparison with the order of rejection passed by the second respondent on 22.06.2015 in his proceedings in 66/2015, makes it obvious that the said order does not refer to the fact of forwarding the representation to the Government and the decision of the Government being intimated to the petitioner. On the other hand, a bare perusal of the order will show that the Detaining Authority himself considered the representation and passed the order. It so happened, the rejection order came to be passed after the expiry of 12 days from the date of slapping the Order of Detention and after the Detention Order came to be approved by the Government on 19.06.2015 itself. 7. The above said ratio found in the judgment relied on by the learned counsel for the petitioner squarely applies to the facts of the case on hand. Relying on the same, this Court, hereby, holds that there is failure on the part of the Detaining Authority to forward the representation to the Government and his option to deal with the same and reject the same, that too, after the approval of the Order of the Detention by the Government, is without jurisdiction and hence, on the said ground alone, the Order of Detention is liable to be set aside. 8. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the Order of Detention dated 08.06.2015, made in M.H.S. Confdl. No. 66/2015, by the second respondent, the District Collector and District Magistrate, Tirunelveli District and directs the release of the detenu, by name Palani, S/o. Subbaiah Thevar, aged about 54 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.