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2016 DIGILAW 112 (MAD)

Dharma @ Dharmaraj v. Secretary to Government, Home, Prohibition and Excise Department Secretariat

2016-01-08

P.R.SHIVAKUMAR, V.S.RAVI

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ORDER : P.R. SHIVAKUMAR, J. The petitioner is the detenu. He has been detained by the second respondent by his order in Cr.M.P.No.25/Goonda/2015, dated 25.11.2015, holding him to be a "Goonda", as contemplated under Section 2 (f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No.467 of 2015 registered on the file of Kenikarai Police Station for an offence punishable under Section 392 of the Indian Penal Code and the following three adverse cases: “(i) Crime No.84 of 2012 registered on the file of Kenikarai Police Station for offences punishable under Sections 147, 148, 341, 294(b), 324, 323, 506(ii) and 379 (NH) of the Indian Penal Code altered to Sections 147, 148, 341, 294(b), 324, 323 and 506(ii) of the Indian Penal Code. (ii) Crime No.139 of 2014 registered on the file of Kenikarai Police Station for offences punishable under Sections 294(b), 506(ii), 342 and 365 of the Indian Penal Code altered to Sections 120(b), 115, 302 and 201 of the Indian Penal Code; and (iii) Crime No.316 of 2015 registered on the file of Kenikarai Police Station for offences punishable under Sections 20(1)(b) of NDPS Act.” 2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of "Goonda" and that his presence at large would be prejudicial to the maintenance of public order and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition. 3. The order of detention is sought to be assailed on several grounds. However, the learned counsel for the petitioner restricts his contention to the following ground alone:- “There is denial of reasonable opportunity by the non-supply of a copy of the original complaint in the ground case, as requested by the petitioner in his representation dated 01.12.2015. The said representation came to be rejected by the letter of the Deputy Secretary to the Government, Home, Prohibition and Excise (IX) Department, Secretariat, Chennai, bearing Letter No. 24362/9/2015, dated 29.12.2015. But the said letter rejecting the representation does not specifically refer to the request made by the petitioner for supply of a facsimile copy of the original complaint in the ground case. But the said letter rejecting the representation does not specifically refer to the request made by the petitioner for supply of a facsimile copy of the original complaint in the ground case. On the other hand, by a stereo type order was passed with general observation as if copies of all the necessary documents and their Tamil translations had already been supplied to the detenu.” 4. Per contra, Mr. A. Ramar, learned Additional Public Prosecutor would submit that the contents of the complaint have been incorporated in the printed First Information Report form and hence, the non-supply of a copy of the original complaint in the ground case would not have resulted in any prejudice to the detenu. It is the further contention of the learned Additional Public Prosecutor that there is no possibility of the detenu contending that some kind of corrections could have been made in the original, as the Additional Public Prosecutor verified that the CD file containing a xerox copy of the original complaint in the ground case, which shows no alterations either by deletions or by additions. 5. Mr. R. Alagumani, learned counsel for the petitioner, in reply to the above said contention made by the learned Additional Public Prosecutor submits that the petitioner was having a doubt as to the identity of the defacto complainant and he was also having a doubt regarding the genuineness of the signature of the defacto complainant found therein and the same was the reason why the detenu made a request for supplying a facsimile copy of the original complaint in the ground case. Such a question arose before a Division Bench of this Court, in which one of us (P.R.SHIVAKUMAR, J) was a party and this Court held that the non-supply of copy of the original complaint would amount to denial of reasonable opportunity. 6. The above said contentions raised on behalf of the petitioner and on behalf of the respondents are carefully considered. 7. It is not in dispute that the petitioner made a representation on 01.12.2015 requesting, among other things, the supply of a xerox copy of the complaint in the ground case. But the said representation came to be rejected by the letter dated 29.12.2015 which has been produced in the additional typed set of papers. 7. It is not in dispute that the petitioner made a representation on 01.12.2015 requesting, among other things, the supply of a xerox copy of the complaint in the ground case. But the said representation came to be rejected by the letter dated 29.12.2015 which has been produced in the additional typed set of papers. As rightly pointed out by the learned counsel for the petitioner, the letter does not specifically refer to the above said request and it makes a general observation that all the relevant documents and their Tamil translations were supplied to the detenu in the form of typed set of papers. As such, it is obvious that the specific request made for the supply of a xerox copy of the original complaint in the ground case has not been specifically adverted to by the Government in the rejection letter. 8. So far as the contention of the learned Additional Public Prosecutor that no prejudice would be caused to the petitioner by the non-supply of xerox copy of the original complaint in the ground case since the contents of the complaint have been incorporated in the First Information Report is concerned, the same cannot be countenanced for the reason that the petitioner wanted a xerox copy of the original complaint as he had doubt regarding the genuineness of the complaint and the genuineness of the signature of the defacto complainant. Under the said circumstances, the first respondent could have directed supply of a xerox copy of the original complaint in the ground case. The failure to do so, as rightly contended by the learned counsel for the petitioner, amounts to denial of reasonable opportunity to make an effective representation for the revocation of the order of detention and to make an effective challenge to the order of detention at the earliest point of time. 9. In a similar situation in S. Duraisami Vs. State of Tamil Nadu, rep. by Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Chennai – 600 009 and another) reported in (2008) 1 MLJ (Crl) 86, a Bench consisting of one of us (P.R.SHIVAKUMAR, J) made the following observations:- “8. 9. In a similar situation in S. Duraisami Vs. State of Tamil Nadu, rep. by Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Chennai – 600 009 and another) reported in (2008) 1 MLJ (Crl) 86, a Bench consisting of one of us (P.R.SHIVAKUMAR, J) made the following observations:- “8. On the other hand, the learned Additional Public Prosecutor would contend that those documents are not documents relied on by the Detaining Authority but they were only documents referred to by the Detaining Authority and that the respondents are obliged to supply copies of the documents relied on and not the documents referred to. The learned Additional Public Prosecutor argued that out of the two documents, the rough sketch prepared by the Investigating Officer in the ground case could not be stated to be a relevant one and that the demand for the supply of copy of the original complaint was misconceived because the printed First Information Report contains verbatim the entire text of the complaint and the document supplied along with the grounds of the detention to the detenu include a copy of the First Information Report prepared in the printed form in the ground case. 9. On the other hand, the learned counsel for the petitioner would contend that since the allegation against the detenu was that his act caused traffic congestion and made the shop keepers to close their shops and the public ran away from the place of occurrence, the supply of a copy of the rough sketch prepared by the Investigating Officer was very much relevant. So far as the original complaint is concerned, it is the contention of the learned counsel for the petitioner that the supply of a xerox copy of the original complaint would enable the petitioner to find out whether there is any correction or interpolation in the original complaint. In the light of the above said submission made by the learned counsel for the petitioner, we do not think that the above said documents could be termed entirely irrelevant. Hence, we are inclined to accept the contention of the learned counsel for the petitioner that the request made in the representation made by the petitioner was for the supply of relevant documents only and not irrelevant documents.” 10. Hence, we are inclined to accept the contention of the learned counsel for the petitioner that the request made in the representation made by the petitioner was for the supply of relevant documents only and not irrelevant documents.” 10. In the said case, this Court relied on a couple of Judgments by the Supreme Court namely in Kirit Kumar Chaman Lal Kundaliya V. Union of India (1981) 2 SCC 437 and Powannammal V. State of Tamil Nadu and others (1999) SCC (Crl) 231. In such circumstance, non-supply of a xerox copy of the original complaint will amount to denial of reasonable opportunity. The ratio decided therein squarely applies to the case on hand. Applying the same to the facts of the present case, this Court comes to the conclusion that the rejection of the representation seeking supply of xerox copy of the original complaint in the ground case, caused prejudice to the petitioner and on that ground alone, the order of detention is liable to be set aside. 11. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention date 25.11.2015, made in Cr.M.P.No.25/Goonda/2015, by the second respondent, the District Collector and District Magistrate, Ramanathapuram and directs the release of the detenu by name Dharma @ Dharmaraj S/o.Soorapuli @ Subramani aged about 35 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.