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2003 Supreme(Mad) 975
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R.JAYASIMHA BABU & THE HONOURABLE MR. JUSTICE S.R.SINGHARAVELU
Rani - Appellant
Versus
State of Tamil Nadu & Another - Respondents
Habeas Corpus Petition No.2253 of 2002
Decided On : 08 July 2003
The detaining authority's subjective satisfaction must be based on objective, relevant material, and non-consideration of relevant facts would vitiate the detention.
Headnote:
Detention - Tamil Nadu Act 14 of 1982 - Article 22(5) - Additional Secretary to Government of India vs. Alka Subhash Gadia, (1992) Supp (1) SCC 496 - Ashadevi vs. K.Shivraj, AIR 1979 SC 447 - Ayya vs. State of U.P., AIR 1989 SC 364 - District Magistrate vs. R.Kumaravel, 1994 SCC Cri 229 - Syed Ali vs. State, 1999-II-CTC-496 - K.Varadharaj vs. State of Tamil Nadu, 2002 SCC (cri) 1514 - M.Ahamedkutty vs. Union of India, 1990 SCC (cri) 258 - State of Tamil Nadu vs. Senthil Kumar, (1999) 2 SCC 646 - Rajammal vs. State of Tamil Nadu, (1999) 1 SCC 417
Fact of the Case:
The District Magistrate and the District Collector, Dharmapuri District, made an order directing the detention of an individual under the Tamil Nadu Act 14 of 1982 on the ground of being a bootlegger prejudicial to public health and order. The legality of the detention was challenged by the individual's wife, arguing that her representation expressing apprehension and denial of wealth accumulation was not considered before the detention order.
Finding of the Court:
The court found that the detaining authority's ignorance of the representation did not vitiate the detention order as there is no obligation to consider representations before the detention order is made. The court emphasized that the detaining authority's subjective satisfaction must be based on objective, relevant material and non-consideration of relevant facts would vitiate the detention.
Issues: The issues raised included the right to make a representation before the detention order, the obligation of the authority to consider such representations, and the consequences of non-consideration. The court also addressed the impact of bail orders and delays in disposing of representations on the validity of the detention order.
Ratio Decidendi: The court held that there is no obligation to consider representations before the detention order is made, but the detaining authority must base subjective satisfaction on relevant material. Non-consideration of relevant facts would vitiate the detention. The court also emphasized that administrative difficulties cannot justify the breach of constitutional rights and that priority must be given to matters concerning preventive detention.
Final Decision: The habeas corpus petition was dismissed.
R.Jayasimha Babu, J.
The District Magistrate and the District Collector, Dharmapuri District, on 25.09.2002 made an order directing the detention of Kattan alias Pachiayappan, male, aged 33 years, under the Tamil Nadu Act 14 of 1982, on the ground that he is a bootlegger whose activities are prejudicial to the maintenance of public health and maintenance of public order.
2. The legality of the detention of Kattan alias Pachiayappan has been called into question by his wife in this petition.
3. At the outset it was submitted that the order of detention that was made is not lawful as a representation sent by the petitioner on 09.09.2002 after the arrest of Kattan alias Pachiayappan on 23.08.2002 in which she had expressed apprehension that Kattan is likely to be detained under this enactment, has not been considered. In that representation she had also stated that on 23.08.2002 her husband has been arrested in respect of crime No.481/02 and remanded to custody and that bail application filed on his behalf had been dismissed. The further statement made in that representation was that the complaint said to have been given to the Tahsildar in which it has been allegedly stated that the petitioner and her husband had amassed wealth by their bootlegging activities, was not true and that they were living in a rented premises and had not amassed wealth. That representation ended with a prayer to the authority to stop the proposed detention of the said Kattan under the Goondas Act.
4. The District Magistrate who has filed the counter affidavit has stated that the petitioner had presented that representation on a public grievance day on 09.09.2002 and that it had been sent to the Superintendent of Police with a direction to give reply within 30 days and that the detaining authority was not aware of the petition that had been submitted by the petitioner as she had not met the detaining authority on 09.09.2002 or subsequently. He has stated that he was "never aware of the fact that advance petition has been presented in the instant case while passing the detention order."
5. Learned counsel for the petitioner submitted that once the receipt of the representation is established, the burden is entirely on the respondent to show that such representation had, in fact, been considered before the order of detention was made, and as the authority has admitted total ignorance of such a representation having been filed before the detention order was made, it is evident that this representation has not been considered. Counsel further submitted that such non consideration has resulted in the authority not applying his mind to materials which were relevant and his having failed to consider this representation has rendered the detention order liable for being struck down on the ground of non application of mind.
6. That submission raises the question as to whether the prospective detenu or anyone-else acting on his behalf has a right to make a representation even before the detention order is made to the detaining authority, and if so, whether such representation, if made, is one which the authorities are under the duty to consider and as to what would be the consequence of non consideration?
7. Article 22 of the Constitution which permits preventive detention does not impose an obligation on the detaining authority, nor does it confer a right on the prospective detenu to make a representation even before the detaining authority decides that the detention of the person is required in terms of the law which confers power on the authority to make orders of detention. 'Representation' is referred to only in Article 22(5). That sub article reads as under:
"Article 22(5):
When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of
