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2023 Supreme(Mad) 388
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, M. NIRMAL KUMAR, JJ.
Sobhana W/o Bhaskaran – Petitioner
Versus
The Secretary to Government Home, Prohibition and Excise Department – Respondent
H.C.P. Nos. 1984, 1986, 2018 of 2022
Decided On : 07-02-2023
Advocate Appeared:
For the Petitioner: R. Radha Pandian.
For the Respondent: R. Muniyapparaj.
Headnote:
Constitution of India, 1950 - Article 226, 22(5) - Habeas Corpus – Order of detention - Habeas Corpus Petition filed to issue a Writ of Habeas Corpus calling for records relating to detention order passed by 2nd respondent against detenu, in detention order and set aside same – Held, Statement of witness to confession buttresses position that detenu can at best speak a mix of Tamil and Malayalam - This means that there is no material to demonstrate that detenu can read Tamil - Therefore, impugned detention orders and grounds not being furnished in Tamil is certainly an infraction of constitutional safeguard ingrained in Article 22(5) - Reading of English and Tamil translation of orders of extension of remand make it clear that translation is incorrect - It is not just incorrect but it conveys a completely different meaning - To be noted, while remand extension order in English says that accused was not produced before Judicial Magistrate, Tamil translation says that accused was seen via a videoconferencing platform - This is clear infraction of constitutional safeguard ingrained in Article 22(5) of Constitution of India, as it certainly impairs and hampers detenu's constitutional right to make an effective representation qua impugned detention order - Detention orders made by second respondent are set aside – Ordered accordingly.
ORDER :
Prayer: Habeas Corpus Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus calling for the records relating to detention order passed by the 2nd respondent against the detenu, dated 15.06.2022 in detention order in C.M.P. No. 59 of 2022 and set aside the same and produce the detenu Bijeesh, now detained in Central Prison, Salem before this Court and set him at liberty.
Habeas Corpus Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus calling for the records relating to detention order passed by the 2nd respondent against the detenu, dated 15.06.2022 in detention order in C.M.P. No. 60 of 2022 and set aside the same and produce the detenu Nikhil @ Unnikannan, now detained in Central Prison, Salem before this Court and set him at liberty.
Habeas Corpus Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus calling for the records relating to detention order passed by the 2nd respondent against the detenu, dated 15.06.2022 in detention order in C.M.P. No. 58/2022/Goonda/Salem city and set aside the same and produce the Sijohn @ Ottagam, age 39, son of Devasikutti now detained in Central Prison, Salem before this Court and set him at liberty.
1. This common order will now govern the captioned three Habeas Corpus Petitions [hereinafter ‘HCPs’ in plural and ‘HCP’ in singular for the sake of convenience and clarity].
2. In this order, for the sake of convenience and clarity, H.C.P. No. 1984 of 2022 shall be referred to as I - HCP, H.C.P. No. 1986 of 2022 shall be referred to as II - HCP and H.C.P. No. 2018 of 2022 shall be referred to as III - HCP wherever necessary.
3. When the matter was taken up, Mr. R. Radha Pandian, learned counsel on record for petitioner and Mr. R. Muniyapparaj, learned State Additional Public Prosecutor for all the respondents in all the three HCPs are before us.
4. We were informed by learned counsel on both sides that the captioned three matters pertain to three co-accused in one case and that one case is the substratum i.e. ground case qua detention orders in all three HCPs. To be noted, detention order dated 15.06.2022 bearing reference C.M.P. No. 59/Goonda/Salem City/2022 which is subject matter of I HCP shall be referred to as “I impugned detention order” the detention order dated 15.06.2022 bearing reference C.M.P. No. 60/Goonda/Salem City/2022 which is subject matter of II HCP shall be referred to as “II impugned detention order” and the detention order dated 15.06.2022 bearing reference C.M.P. No. 58/Goonda/Salem City/2022 which is subject matter of III HCP shall be referred to as “III impugned detention order.”
5. We are also informed that all three impugned detention orders are identical. It was submitted by both sides that I - HCP i.e. H.C.P. No. 1984 of 2022 can be taken as the lead case and that can be heard out. It was also submitted that the outcome of I - HCP will govern the outcome of II and III HCPs.
6. Notwithstanding very many points urged/raised in the affidavit filed in support of captioned HCPs, learned counsel for petitioners in three HCPs projected two points and both points find favour with us. These two points, discussion on the same together with dispositive reasoning are set out infra.
7. The first point is, the detenus are from Kerala, they know to speak Tamil but they do not know to read and write Tamil. It was argued that the grounds of detention supplied to the detenus in the form of a booklet [hereinafter ‘grounds booklet’ for the sake of convenience and clarity] does not contain translation in Malayalam. It contains translation only in Tamil and the detenus do not know to read Tamil is learned counsel's say.
8. Responding to the above point, learned State Additional Public Prosecutor drew our attention to the statement of witness to confession and pointed out a portion of the same which reads as follows:
In our view, the aforementioned extract does not
