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2010 Supreme(Mad) 5468
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
Shan
Versus
The Secretary to Government of Tamil Nadu & Another
H.C.P.No.1727 of 2010
Decided On : 20-12-2010
For the Petitioner:N. Sudharsan, Advocate.
For the Respondents: V.R. Balasubramanian, Additional Public Prosecutor.
Failure to consider pre-detention representation and discrepancies in translation can vitiate a detention order.
Headnote:
Bootlegger - Challenge to Detention Order - Act 14 of 1982 - Sections 4(1)(aaa), 4(1-A), TNP Act read with 6 & 11 of RS Rules, 2000 - Summary: The court considered the detention order passed against the detenu under Act 14 of 1982, terming him as a 'Bootlegger' based on his involvement in adverse cases. The court found discrepancies in the consideration of pre-detention representation and translation, leading to the vitiation of the detention order.
Fact of the Case:
The court heard a challenge to the detention order passed against the detenu, terming him as a 'Bootlegger' under Act 14 of 1982, based on his involvement in adverse cases.
Finding of the Court:
The court found discrepancies in the consideration of pre-detention representation and translation, leading to the vitiation of the detention order.
Issues: Consideration of pre-detention representation, discrepancies in translation
Ratio Decidendi: The detention order was vitiated due to the authority's failure to consider the pre-detention representation and discrepancies in translation.
Final Decision: The Habeas Corpus Petition was allowed, setting aside the detention order and directing the detenu to be set at liberty forthwith unless his presence is required in connection with any other case.
M. Chockalingam, J.
1. Challenge is made to an order of the Second Respondent dated 23.8.2010 in BDFGISSV No.47/2010, whereby, the order of detention came to be passed against the Petitioner’s husband viz., detenu Sapthar Usain, S/o. Shahul Ameed, aged 29 years, detaining him under Act 14 of 1982 terming him as a “Bootlegger”.
2. The Court heard the learned Counsel for the Petitioner and looked into the materials available on record, in particular, the order under challenge.
3. It is not in controversy that pursuant to the recommendation made that the detenu involved in three adverse cases, namely, (1) PEW, Chengalpattu Cr.No.35/2010 under Sections 4(1)(aaa), 4(1-A), TNP Act read with 6 & 11 of RS Rules, 2000 Transporting; (2) PEW, Kancheepuram Cr.No.254/2010 under Sections 4(1) (aaa), 4(1-A), TNP Act read with 6 & 11 of RS Rules, 2000 Transporting; (3) PEW, Chengalpattu Cr.No.88/2010 under Sections 4(1)(aaa), 4(1-A), TNP Act read with 6 & 11 of RS Rules, 2000 Transporting and also a ground case registered by PEW, Kancheepuram Cr.No.258/2010 under Sections 4(1)(i), 4(1)(aaa), 4(1-A) TNP Act r/w. 6 & 11 of RS Rules, 2000, for an occurrence that took place on 30.07.2010, he was arrested and remanded to judicial custody on the same day, and on scrutiny of the materials available, the Detaining Authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order has made the order under challenge after terming him as “Bootlegger” as defined under the provisions of the enactment.
4. Advancing arguments on behalf of the Petitioner, the learned Counsel raised two grounds, which according to him are suffice to set aside the order of detention. Firstly, the learned Counsel submitted that a pre-detention representation was made on 19.8.2010 and it was received by the authority on 20.8.2010, but, at the time of passing the order of detention on 23.8.2010, the pre-detention representation was not at all considered by the authority. In order to fortify the said contention, the learned Counsel produced before this Court the acknowledgment card along with the copy of the representation dated 19.8.2010 and would submit, that on this ground, the detention order is vitiated and it has got to be set aside.
5. Secondly, the learned Counsel took the Court to Page Nos.29, 33, 75 and 101 of the booklet and pointed out to the discrepancies in the translation made. In particular, the learned Counsel pointed out to the remand extension order, which is annexed to Page No.101 of the Booklet and would submit that the name of the accused is not even mentioned therein. Under such circumstances, a clarification should have been called for by the Detaining Authority, but, he had not done so. On this ground also, the detention order is vitiated and it has got to be set aside.
6. The Court heard the learned Counsel for the State on the above contents.
7. As could be seen above, the order of detention came to be passed on 23.08.2010 terming the detenu as a “Bootlegger”, on the strength of the materials placed before him pertaining to three Adverse cases and a Ground case as referred above. The Detaining Authority has also recorded the subjective satisfaction. Before sustaining the order, the Court, has to necessarily look into whether subjective satisfaction so recorded by the Detaining Authority was based on necessary materials as required. Insofar as the first ground is concerned, the acknowledgement card and the copy of the pre-detention representation dated 19.8.2010 were perused by the learned Additional Public Prosecutor and in his reply, the learned Additional Public Prosecutor would submit that though, the pre-detention representation is dated 19.8.2010 and the same was received on 20.8.2010, but, the same was placed before the authority only on 26.8.2010. But, the said contention cannot be countenanced for the reason that, the pre-detention representation was made on
