Manickavalli vs State of Tamil Nadu

M. Chockalingam, J.—This petition challenges an order of the second respondent made in No. 04/BDFGISSV/2010 dated 11.2.2010, whereby the son of the petitioner by name Raja @ Appala Raja was ordered to be detained under Act 14/82 branding him as a Goonda.

The Court heard the learned Counsel for the petitioner and also looked into all the materials available including the order under challenge.

It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in two adverse cases namely (i) D2 Sellur PS Cr. No. 3331/2009 under Sections 147, 148, 323, 307 and 506(ii) IPC and (ii) D2 Sellur PS Cr. No. 3342/09 under Sections 395 read with 397, 506(ii) IPC and 25(1) of Arms Act and 3, 4(b) of Explosive Substances Act, 1908 and one ground case registered by B6 Jaihindpuram PS in Crime No. 1294/2009 under Sections 341, 392 read with 397 and 506(ii) IPC, the detaining authority after scrutiny of all the materials available, recorded its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of the public order and hence made the order under challenge.

Advancing arguments on behalf of the petitioner, the learned Counsel would inter alia urge two grounds as primary grounds by which he made his sincere attempt of attacking the order. According to the Counsel, he was remanded in the second adverse case and in the ground case, and he made bail application in the ground case before the Judicial Magistrate No. IV, Madurai, in Crl.M.P. No. 10940/2009, and the same was dismissed on 30.12.2009, and he has not made any bail application in the adverse cases; but, in paragraph 5 of the order, the detaining authority has stated that there was a real possibility of the detenu coming out on bail, and this was without any material, much less cogent material which the law would require.

Added further the learned Counsel that the petitioner has made a post-detention representation on 27.2.2010, to the Advisory Board to have the legal assistance; that the Advisory Board instead of considering the representation made, forwarded the same to the Government mechanically; and that the non-consideration of the representation by the Advisory Board would also be fatal to the order in question.

In order to fortify the contention, the learned Counsel relied on a decision of the Division Bench of this Court reported in (2009) 4 MLJ 443 (Sugumath Kanish v. State of T.N. and Ors.).

The Court heard the learned Additional Public Prosecutor on the above contentions. According to him, it is true that no bail application was filed by him before any Court of criminal law in either of the cases; but, at the same time, the sponsoring authority has recorded the statement of the father of the detenu from which it could be seen that he is making arrangements to take his son, the detenu, out on bail, and under the circumstances, the first ground has got to be rejected.

As far as the second ground is concerned, the learned Additional Public Prosecutor would submit that the legal assistance cannot be claimed as a matter of right, and hence both the grounds have got to be rejected, and the petition be dismissed.

As could be seen from the available materials, the sponsoring authority placed its recommendation on the strength of two adverse cases and one ground case as referred to above. The learned Counsel would contend that in the adverse cases, he has not moved bail before any Court of criminal law, and while the fact stood admitted, the detaining authority in paragraph 5 of the order under challenge has stated as follows:

I am aware that Tr. Raja @ Appala Raja, S/o. Mahalingam, is now in remand in ground case in B6 Jaihindpuram P.S. Cr. No. 1294/2009 and the adverse case in D2 Sellur PS Cr. No. 3331/2009 and D2 Sellur PS Cr. No. 3342/2009 and he is lodged at the Central Prison, Madurai. Further a bail application filed on his behalf in the above said ground case, before the JM No. IV, Madurai in Crl.M.P. No. 10940/2009 was dismissed on 30.12.2009. Further he has not filed any bail applications in the adverse cases in D2 Sellur PS Cr. No. 3331/2009 and D2 Sellur PS Cr. No. 3342/2009. However I am aware through the statement of Tr. Mahalingam, father of Tr. Raja @ Appala Raja that he is making efforts to file further bail application in the above ground case in B6 Jaihindpuram PS Cr. No. 1294/2009 and also to file bail applications in the adverse cases in D2 Sellur PS Cr. No. 3331/2009 and D2 Sellur PS Cr. No. 3342/2009 before the concerned court. Hence, I am also aware that there is a ''real possibility'' of his coming out on bail in the above said ground case and two adverse cases in which he is now in remand, by filing bail applications, since in similar cases bails are granted by the concerned Court or Higher Court.

The learned Counsel would further urge that under the circumstances, the authority has got the clear knowledge that no bail application was filed in the adverse cases, but he has stated that there was a real possibility of the detenu coming out on bail.

Now, at this juncture, it is pertinent to point out that the sponsoring authority has recorded a statement from Mahalingam, the father of the detenu, who has stated that originally he filed bail application before the Judicial Magistrate''s Court in the ground case, and the same was dismissed, and now he is making all arrangements to take him out on bail. It remains to be stated that the earlier bail application was dismissed on 30.12.2009, and the detention order was passed on 11.2.2010. Taking into consideration the period of interval, the sponsoring authority applied its mind and found that there was a real possibility of his coming out on bail. In such circumstances, this Court is of the considered opinion that there is cogent material available. Hence the first ground urged by the petitioner''s side cannot be accepted.

As regards the second ground, it is an admitted position that a post-detention representation was made by the petitioner to the Advisory Board to have the legal assistance on 27.2.2010. But, the learned Additional Public Prosecutor for the State would represent that it cannot be made as of right. It is true that it is not a matter of right. It is settled proposition of law that it was not a matter of right; but, when a representation is made to that effect, a duty is cast upon the Advisory Board to consider the same and pass suitable orders thereon. On one occasion, it was considered by the Division Bench of this Court in a case reported in (2009) 4 MLJ 443 (Sugumath Kanish v. State of T.N. and Ors.) and held as follows:

Added circumstances, it is brought to the notice of the Court that after passing the detention order dated 6.11.2008 and after constitution of the Advisory Board, the detenu was directed to appear before the Advisory Board on 7.1.2009. Accordingly, he appeared and sought for permission to engage a counsel to represent him. It is not in dispute that such a representation was actually made before the Advisory Board. On perusal of the order made by the Advisory Board, nowhere it is indicated that such a representation was considered. The question whether the detenu has got a right to have the assistance of a lawyer before the Advisory Board came up for consideration before the Apex Court on number of occasions. On one occasion, the Supreme Court in Smt. Kavita Devidasani Vs. State of Maharashtra and Others, has held as follows:

Though a detenu has no right u/s 8(e) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 to appear through a legal practitioner in the proceedings before the Advisory Board, he is entitled to make a representation for the services of a lawyer to appear before the said Board which is under obligation to consider the same dispassionately in the facts of a particular case. The representation made by a detenu for legal assistance before the Advisory Board, has to be considered not perfunctorily but with due application of mind, since in each case of detention, the liberty of an individual is involved.

It would be quite clear that from the very reading of the decision that the detenu is not vested with any right under the provisions of COFEPOSA Act to appear through his counsel in proceeding before the Advisory Board. But, he is entitled to make a representation for the service of a lawyer to appear before the Board and the Board is also under obligation to consider the same. In the instant case, though the representation was made before the Board to take assistance of a legal practitioner, nothing is found indicating whether such a representation was considered by the Board at all. Under such circumstances, the decision of the Apex Court, if applied, would also make the order under challenge defective.

This Court is unable to see any reason to deviate from the earlier decision taken by the Court. Once the submission of a post-detention representation seeking legal assistance, to the Advisory Board, is an admitted fact, the Advisory Board should have considered the same and passed orders, but failed to do so. This Court is of the view that though not the first ground is made out, the second ground has got to be applied in favour of the detenu.

Accordingly, this habeas corpus petition is allowed setting aside the order of the second respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.