Ganesh @ Lingesan vs State of Tamil Nadu

P. Devadass, J.—The petitioner, who has been detained under Act 14 of 1982 brandishing him a Goonda, challenges the detention order

dated 25.11.2011. Noticing the adverse criminal statistics submitted by the sponsoring authority, the detaining authority coming to the subjective

satisfaction that his remaining at large will be prejudicial to the maintenance of public order clamped the order of detention on the petitioner.

The detention order has been challenged on various grounds. Today, an additional ground has been raised assailing the detention order. Since it

is a legal ground, we permit him to raise it.

According to Mr. D. Gopikrishnan, learned counsel for the petitioner, in the Booklet of copies of documents supplied to the detenu, in the

Arrest Memo, it is mentioned that his arrest in the ground case has been intimated to his sister, Usha, by a telegram. However, a copy of the

telegram has not been furnished to him. In the circumstances, the learned counsel would submit that actually there was no such intimation at all. He

would add that giving intimation of his arrest to his relatives and friends is very important as it would enable him to make representation as against

the order of detention passed against him. Inasmuch as the telegram stated has not been furnished, he was prevented from making representation,

thus, the order of detention is vitiated.

In this respect, the learned counsel for the petitioner would cite AKILANDESWARI V. State, rep. by Secretary to Government, Home,

Prohibition and Excise Department, Chennai - 600 009 and Another (2008 (3) MLJ (Crl) 744).

On the other hand, Mr. P. Govindarajan, learned Additional Public Prosecutor would submit that the detenu knew his arrest and no prejudice

has been caused to him by not furnishing the said telegram.

We have given our anxious consideration to the arguments of both sides and perused the materials placed before us.

The petitioner has been detained under Act 14 of 1982. He has been furnished with a Booklet. It contains copies of documents. In this Booklet,

at page 180, in the Arrest Memo, it is stated that his arrest in Crime No.881 of 2011 u/s 379 IPC registered by P-6, Kodungaiyur Police has been

duly informed to his sister, Usha, by way of a telegram. Admittedly, a copy of the said telegram has not been furnished to him. In the

circumstances, as rightly submitted by the learned counsel for the petitioner, it could be concluded that no intimation, as claimed by the police, has

been given to the detenu.

In a similar situation, a Division Bench of this Court in AKILANDESWARI (supra) held as under :

Though the learned Additional Public Prosecutor has made an attempt to justify by stating that the family members were intimated through

telegrams, he has not placed any material to satisfy this Court as to whether any telegram was sent and the same was acknowledged either by the

family members or relatives of the detenu. A right of intimation to the relatives or family members of the detenu encompasses itself the fundamental

right guaranteed under Article 22(5) of the Constitution of India to make a representation to the detaining authority or the State Government, as the

case may be. In the event the arrest is not intimated, the detenu would not be in a position to make any such representation and in that context,

failure on the part of the detaining authority would amount to deprivation of the right of the detenu to make an effective representation guaranteed

under Article 22(5) of the Constitution of India. On the facts of this case, a specific averment has been made that the intimation was not given. We

also find that the said averment has not been controverted in the counter affidavit. Though the learned Additional Public Prosecutor submitted that

the family members of the detenu were informed of the arrest through telegram, there are no materials placed before us to substantiate the said

contention. Further, the copy of the telegram has also not been furnished to the detenu. In the absence of the same, we are unable to accept the

contention of the learned Additional Public Prosecutor that the family members or the relatives of the detenu were informed of the arrest. Under

these circumstances, the detention order is vitiated.

""No man shall be deprived of his life and liberty except by procedure established by law"" has been guaranteed in Article 21 of the Constitution

of India. His right to be informed of the arrest is his basic human right. Curtailment of his personal freedom in pursuance of a preventive detention

law though has the constitutional sanction (see Article 22 (4) of the Constitution of India), it is conditioned by many constraints, one of which is a

chance for him to make representation as against his detention. (See Article 22 (5) of the Constitution of India). If his arrest is not informed to his

dear and near ones, who could make representation as against the detention order on his behalf, he cannot exercise the right given to him under

Article 22(5) of the Constitution of India. In this constitutional perspective, the argument of the respondent that by non supply of a copy of the

telegram informing his arrest no prejudice is caused to the detenu is too big a pill to gulp.

In the facts and circumstances, as the detenu has been prevented from making effective representation, there is infraction of his right guaranteed

under Article 22(5) of the Constitution of India, the order of detention is vitiated on that ground itself and it is liable to be set aside. In the result, the

writ petition is allowed. The detention order in Memo No.601/BDFGISSV/2011, dated 25.11.2011 passed by the second respondent is set aside

and the writ petitioner/detenu, Ganesh @ Lingesan, S/o. Subramani, is directed to be released forthwith, unless he is required in connection with

any other case or proceedings.