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Judgment
N. Paul Vasanthakumar, J.—This habeas corpus petition is filed by the mother of the detenue by name K. Kanthan, son of Krishnan, aged
24 years, seeking to quash the order of detention dated 24.8.2011 and to set the detenue at liberty, who is now confined at the Central Prison,
Palayamkottai.
The habeas corpus petition was admitted on 2.11.2011. The second respondent has filed counter affidavit.
The grounds urged in the affidavit filed in support of the habeas corpus petition are,
(i) The documents relied on/referred to in the detention order are not furnished to the detenue in spite of the specific request made to the
respondents viz., copy of the FIR in Crime No. 100/95 on the file of Kallidaikurichi Police Station registered u/s 307 IPC, and FIR in Crime No.
145/95 on the file of Veeravanallur Police Station registered u/s 302 IPC, due to which the detenu was not able to make effective representation to
revoke the order of detention.
(ii) There is delay in communicating the order of detention which has not been explained.
(iii) The intimation to appear before the Advisory Board meeting was given with short notice.
(iv) The family members of the detenu were not informed of the detention order; and
(v) There is delay in passing the order of detention.
In the counter affidavit filed by the second respondent it is contended that on 22.7.2011 the detenu had come to adverse notice and acted in a
manner prejudicial to the maintenance of public order. A case in Crime No. 320/2011 on the file of Kallidaikurichi Police Station under sections
294 B, 353, 506(ii) IPC and Section 27 of the Arms Act was registered and the detenu also involved in five other cases and the said cases are
pending, of which three cases are registered u/s 302 IPC among other offences. In order to prevent the detenu from indulging in further course of
activities, which are prejudicial to the maintenance of public order, he was ordered to be detained and the order of detention was passed on
24.8.2011, which was confirmed by the Government through G.O. Ms. No. 2212 dated 10.11.2011, after hearing the view of the Advisory
Board on 3.10.2011. In the counter affidavit it is further stated that after careful consideration of all the materials placed before the detaining
authority by the Sponsoring Authority, the Detaining Authority arrived at the subjective satisfaction that the detenu had acted in a manner
prejudicial to the maintenance of public order. Bail was granted in crime No. 320/2011 on 24.8.2011 and if the detenu is let to remain at large, he
will further indulge in such activities in future, which will be prejudicial to the pubic order.
The learned counsel appearing for the petitioner addressed the above grounds and also cited certain decisions in support of his contentions. We
have also heard the learned Additional Public Prosecutor appearing for the respondents.
In the grounds of detention the detaining authority has stated that FIR in Crime No. 100/1995 registered u/s 307 IPC on 22.5.1995 on the file
of the Kallidaikurichi Police Station and Crime No. 144/1995 u/s 302 IPC registered on 27.7.1995 on the file of Veeravanallur Police Station are
mentioned. Copy of the said FIRs were sought for by the petitioner/detenu''s mother vide representation dated 29.10.2011 sent by registered
post. However, the said copies were not furnished to the detenu. Even though the learned Additional Public Prosecutor argued that the said crime
numbers are only referred to and not relied on, when the copies of the said FIRS were sought for, non-furnishing of the same has vitiated the
proceedings depriving the detenu to make effective reply/representation to recall the order of detention.
(a) The learned counsel for the petitioner cited the decision of the Supreme Court reported in (2010) 1 MLJ (Crl) 1241 (SC) (Thahira Haris v.
Government of Karnataka). In paragraph 28 of the said judgment the Supreme Court held thus,
Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of
the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other
materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable
the detenu at the earliest opportunity to make effective and meaningful representation against his detention.
(b) In Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, the Supreme Court held that the relied on documents if not supplied, it will
vitiate the order of detention. In paragraph 8 the Supreme Court held thus,
. .... The right to be supplied copies of the documents, statements and other materials relied upon in the grounds of detention without any undue
delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a
representation against the detention, because unless the former right is avilable, the latter cannot be meaningfully exercised. This would seem to be
clear on a fair interpretation of clause (5) of Article 22 but apart from this view which we are inclined to take on principle as a matter of
interpretation, the law is now well settled as a result of several decisions of this Court commencing from Ramchandra A. Kamat Vs. Union of India
(UOI) and Others, that: ""When the grounds of detention are served on the detenu, he is entitled to ask for copies of statements and documents
referred to in the grounds of detention to enable him to make an effective representation. When the detenu makes a request for such documents,
they should be suplied to him expeditiously ......... when copies of such documents are asked for by the detenu, the detaining authority should be in
a position to supply them with reasonable expedition. What is reasonable expedition will depend on the facts of each case.
(Emphasis Supplied)
The above decisions fully support the contention of the learned counsel for the petitioner and hence the said ground is held in favour of the detenu.
As regards the second ground i.e., delay in communicating the order of detention to the detenu, it is to be noted that the order of detention was
passed on 24.8.2011 and the same was approved on 4.9.2011, but the same was communicated only on 16.9.2011. Thus there is delay of 12
days in communicating the order of detention and the said delay is not explained in the counter affidavit. Hence there is yet another vitiating factor
in the way of continued detention of the detenu.
The third ground is that the State Advisory Board meeting was fixed on 3.10.2011 at 12.00 noon and the intimation regarding the same was
given to the detenu only on 30.9.2011 giving only two days time in between and therefore the detenu was not given sufficient time to prepare
effective representation to be submitted before the State Advisory Board. In the decision of this Court reported in 2002 (1) CTC 477 (Dharman
v. State of Tamil Nadu) giving only two days time to make effective representation was found as insufficient time to make proper and effective
representation and on that ground the habeas corpus petition was allowed. Thus the said ground is also held in favour of the detenu.
The fourth ground urged by the learned counsel for the detenu is that the order of detention was not informed to the family members of the
detenu. The same is not disputed in the counter affidavit. The said question was considered by this Court in the decision reported in (2008) 1 MLJ
(Crl) 229 (Anitha v. State of Tamil Nadu) and in paragraph 9 it is held thus,
The object and purpose of informing the members of the detenu''s household in writing of the passing of the order of detention and taking in
custody of the detenu as also the place of detention immediately after the detenu is taken in custody pursuant to the order, is that the family
members of the detenu should not be kept in darkness by withholding the information about the passing of the order of detention and the place of
detention thereby preventing them from having any access and from rendering any help or assistance to the detenu and similarly the detenu should
not be deprived of the privilege of meeting his relations and getting any help or assistance, vide Union of India (UOI) and Another Vs.
Vasanbharthi and Others,
The last ground raised by the learned counsel for the petitioner is that the detenu was arrested on 22.7.2011, remand period expired on
13.8.2011 and the order of detention was passed only on 24.8.2011 and thus there is delay of 33 days in passing the order of detention from the
date of arrest of the detenu. Similar issue was considered in the decision reported in 2009 (2) TNLR 121 (Mad) (M. Kakkammal v. The
Commissioner of Police, Madurai). In paragraph 6 it is held that the chain between the ground of criminal activity alleged by the detaining authority
for the purpose of detention is snapped if there is too long and unexplained delay between offending criminal act and order of detention. In the said
case, the delay in passing the order of detention was from 1.6.2007 to 19.8.2008, which was not explained. Therefore this Court held that the
order of detention passed after long lapse of time without explanation was to be quashed.
Here in this case no explanation is stated in the counter affidavit for the delay of 33 days in passing the order of detention from the date of
arrest.
In the light of the above findings we hold that the petitioner has made out a case to quash the order of detention dated 24.8.2011.
Consequently, the habeas corpus petition is allowed and the order of detention dated 24.8.2011 is set aside. The detenu is ordered to be set at
liberty forthwith, if his detention is not required in any other case.