Muniyandi vs The Secretary to Government

S. Manikumar, J.—The petitioner, who is the detenu/Muniyandi @ Ettu Idly Muniyandi, branded as a ''Drug Offender'' in detention order, No. 01/2014/C3 dated 09.06.2014, by the 2nd respondent/District Collector and District Magistrate, Theni District, has sought for a Writ of Habeas Corpus.

The detente has come to adverse notice of the police in two cases. That on 10.09.2011, the detenue is alleged to have carried a white plastic bag in his hand, and on seeing the police party, dropped the same and absconded. When the abovesaid plastic bag was searched, 500 grams dry Ganja was found. A case was registered against the detenu in Theni NIB CID Crime No. 74/2011, under Section 8(c) r/w 20(b)(ii)(A) of NDPS Act 1985. Thereafter, a charge sheet has been filed and that the same has been taken on file, in STC. No. 373/13 by the learned Judicial Magistrate Court, Bodinayakanur. The accused/detenu was imposed a fine of Rs. 1000/- and he has paid the same.

Again on 03.09.2012, the detenu has come to the adverse notice of the police in Theni NIB CID Crime No. 79/2012 under Section 8(c) r/w 20(b)(ii)(A) of NDPS Act 1985, for possession of 600 grams of dry Ganja. Samples were sent to the Regional Forensic Science Laboratory, Madurai, through the Court, and that they were confirmed as ''Cannabinoid'' or ''Ganja'' as per the analysis report in NAR. No. 531/2012 dated 31.12.2012. A charge sheet was filed, which has been taken on file in STC. No. 638/2013 by the learned Judicial Magistrate, Uthamapalayam. The accused/detenu was imposed a fine of Rs. 1000/- and he has paid the same.

Ground case has been registered against the detenu on 20.05.2014 in Crime No. 169/2014 under Section 8(c) r/w 20(b)(ii)(A) of NDPS Act 1985, for possession of 100 Kgs of dry Ganja, in which, the detenu has been remanded. By observing that the detenu is habitually committing offence and thus acting in a manner prejudicial to the maintenance of public order and public health, the detaining authority has clamped him, by the impugn order.

Though several points have been taken, inviting the attention of this Court to page 28 of the Booklet, which is an order dated 20.05.2014, of the learned Judicial Magistrate, Uthamapalayam, remanding the detenu to judicial custody till 03.06.2014, page 31, which is a remand extension order dated 03.06.2014 upto 17.06.2014, page 33, requisition of the Inspector of Police, Cumbum North Police Station, before the learned Special District and Sessions Judge for EC Act and NDPS Act Court, Madurai, history of the case at page 34, and page 36, an order made in the Bail Application, Crl.M.P. No. 885/14 on the file of the learned Additional District Judge/Principal Subordinate Court for EC and NDPS Act Cases, Madurai dated 06.06.2014, Mr. R. Alagumani, learned counsel for the petitioner submitted that translated version of the abovesaid documents have not been furnished to the detenue, which has grossly prejudiced him from making effective representation.

Per contra, Mr. C. Ramesh, learned Additional Public Prosecutor submitted that non furnishing of the document, history of the case enclosed at page 34 of the Booklet, would not in any way prejudice the detenu, from making an effective representation. He further submitted that document at page 33 is only a request for chemical analysis report, and non furnishing of the same would not vitiate the detention order.

Learned Additional Public Prosecutor further submitted that after considering all the material documents, the detaining authority has arrived at the subjective satisfaction and passed the impugned order. For the abovesaid reasons, he prayed for dismissal of the Habeas Corpus Petition.

Heard the learned counsel for the parties and perused the materials available on record.

Vide order dated 20.05.2014, the learned Judicial Magistrate, Uthamapalayam, has remanded the detenu to judicial custody till 03.06.2014. This remand is in the ground case. Subsequently, on 03.06.2014, the detenu has been produced before the learned Principal Subordinate Judge for NDPS Act Cases and that remand has been extended till 17.06.2014. Document at page 33 is a requisition for Chemical Analysis Report. Page 34 is the history of the case. Pages 36 to 41 are the detailed order, dated 06.06.2014 passed in the bail application, Crl.M.P. No. 885/14 by the learned Additional District Judge, Madurai, Principal Sub Court EC and NDPS Act Cases, Madurai.

Though Mr. C. Ramesh, learned Additional Public Prosecutor submitted that the petitioner cannot be said to have been prejudiced, due to non furnishing the history of the case and other documents and prayed for dismissal of the Habeas Corpus Petition, indisputably translated copies of remand order dated 20.05.2014, remand extension order dated 03.06.2014, order passed in the bail application Crl.M.P. No. 885/14, have not been furnished. Certainly, these documents have been taken note of and relied on, by the detaining authority, while clamping the detenu under Act 14 of 1982. Courts have consistently held that the detenu is entitled to have copies of the documents relied on by the detaining authority in the language known to him. Non-furnishing of the translated version affects the right of the detenu to make an effective representation. Reference can be made to the following decisions:-

(a) In Kubic Darusz Vs. Union of India (UOI) and Others, , an important ground raised was that the detenu was not furnished with the grounds of detention in the language known to him. The detention order was in English. The detenu belonged to Poland and he wanted copy of the document in Polish language. After considering a catena of decisions, the Apex Court held as follows:-

Continued detention of the detenu has been rendered illegal by non-consideration of his representation by the appropriate government according to law, resulting in violation of Article 22(5) of the Constitution of India.

Where the grounds are couched in a language which was not known to the detenu, unless the contents of the grounds were fully explained and translated to the detenu it would tantamount to not serving the grounds of detention and would thus vitiate the detention ex facie. It is the settled law that the detention order, the grounds of detention and the documents referred to and relied upon are to be communicated to the detenu in a language understood by him so that he can make effective representation against his detention.

(b) In Powanammal Vs. State of Tamil Nadu and Another, , Tamil version of the remand order was not furnished. When that was raised as a ground in a Habeas Corpus Petition, this Court dismissed the same. On appeal, the Apex Court framed the following question:-

The short question that falls for our consideration is whether failure to supply Tamil version of the order of remand passed in English a language not known to the detenue, would vitiate her further detention.

(c) Inviting the attention of the Apex Court to Article 22(5) of the Constitution of India, learned counsel for the appellant therein submitted that Constitution of India imposes twin obligations on the authority making the order of detention in respect of a person. They are: (1) to communicate to such person the grounds on which the order of detention has been made and (2) to afford him the earliest opportunity of making a representation against the order. It is worthwhile to extract paragraphs 8 and 9 of the majority view of the Apex Court.

The law relating to preventive detention has been crystallized and the principles are well neigh settled. The amplitude of the safeguard embodied in Art. 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenue but also to supplying their translation in script or language which is understandable to the detenue. Failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. (See Hadibandhu Das Vs. District Magistrate and Another, .

However, this court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenue need not show that any prejudice is caused to him. This is because non- supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenue''s complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document, would equally apply to furnishing translated copy of the document in the language known to and understood by the detenue, should the document be in a different language.

(d) In Kuppammal vs. The District Collector and District Magistrate, Thiruvallur District, Thiruvallur, reported in 2001 MLJ (Crl) 445, the Hon''ble Division Bench of this Court held as follows:-

It is well settled that strict compliance with the prescribed procedure or all legal requirements are considered as essential by various judicial pronouncements of the Apex Court and this Court. The detaining authority is required to follow strictly and scrupulously the forms and rules of law prescribed in that behalf or by the statutory provisions under which the order of detention is being made after arriving at a subjective satisfaction. In the event of any deviation or violation of the statutory provisions or infraction of Constitutional guarantees, the Courts will not hesitate to quash the orders of detention. Whatever be the justification to detain the slightest infraction of the constitutional guarantees would lead to the detenue being set at liberty.

It is by now well settled that in all detention laws, the orders of detention and the continuance of detention should be in conformity with Article 22 of the Constitution and the procedure laid down therein and slightest infraction of the constitutional protection guaranteed by Article 22 and in some cases Article 21 or 19(1)(g) would be a valid ground to make rule nisi absolute and consequently Courts do direct the detenu to be set at liberty forthwith.

(e) In Rabiyathil Pathavia Vs. The State Government of T.N. and 2 others, , certain documents were given to the accused with a covering letter stating the purpose. The documents in English were not translated. The detenu therein was not in a position to know the contents of the document. In the abovesaid circumstances, the Hon''ble Supreme Court, following the judgment in State of Tamil Nadu Vs. Senthil Kumar and Anr, , of the Apex Court, at paragraph 4, held as follows:-

However, the detenu has a strong case on the other point, namely, the order of detention is not in Tamil, and is not accompanied by any covering letter explaining the purpose for which the documents were served on the detenu. Evidently, the documents in question were served on the detenu without the detenu being told about the purpose for which they are served. Failure on the part of the authorities to inform the purpose for which the documents were supplied to the detenu without any covering letter, will certainly vitiate the order of detention. Whenever a document is served on a detenu, the detenu should be in a position to know the purpose for which it is served on him, especially, when such documents are served after initial order of detention was passed against him. So long as the purpose for which the documents are served on the detenu is not disclosed, it will certainly create confusion in the mind of the detenu in the matter of submitting an effective representation, thereby, causing infraction of the constitutional right of the detenu as envisaged under Article 22(5) of the Constitution. That apart, the detenu has a case that he knows only Tamil and does not know English. Admittedly, the Tamil translation of the additional documents is also not served on the detenu. The view we are taking is fortified by no less authority than the decision, of the Supreme Court reported in State of Tamil Nadu v. Senthil Kumar, (vide paragraph 13).

(f) In Daku Devi vs. State of Tamil Nadu, (HCP. No. 590/2004 dated 21.09.2004), the detenu sought for copies of documents in Hindi claiming that he does not know English as he had studied only upto Vth Standard. The request was rejected on the ground that the documents sought for were standardised documents. In the said case, the detenu was an Exporter. It was also contended that the detenu had signed the representation in English and in other places. Therefore, for the abovesaid reasons, non furnishing of the documents in the language known to him would not vitiate the order of detention. Having considered the rival submissions, at paragraph 20, the Hon''ble Division Bench held as follows:-

In the present case, even the order of preventive detention itself indicates that the detenu was not conversant in writing English, which obviously implies that he was not capable of reading English. It is axiomatic that a person who does not know how to write English, cannot read English and similarly a person who does not know how to read English, cannot write English. The detenu himself had made a request for furnishing copies of the documents in Hindi. At that stage, such request was not rejected on the ground that the detenu knew English, but on the ground that the documents being in standardised form was well within his knowledge. If the authorities knew that the detenu knew English, they must have given that answer even in the very beginning. The specific assertion made by the petitioner in the Habeas Corpus Petition has not been challenged by filing any counter affidavit. Merely because the detenu signed in English in the representation or in other places, it does not mean that he was in a position to read and understand the language to such an extent to enable him to make an effective representation. Even the representation to which our notice has been invited by the learned counsel for the petitioner, clearly indicates that the detenu did not know how to read and write English. On the face of such unassailed materials, a mere contention raised at the hearing stage without any convincing supporting materials, cannot be accepted. In such view of the matter, the order of detention is liable to be quashed as non-furnishing of translated copies of relied documents relied upon by the detaining authority himself has vitiated the order of detention.

(g) One of the contentions raised in the present Habeas Corpus Petition by Mr. Ramesh, learned Additional Public Prosecutor that the contents of the remand order in the Booklet were explained in Tamil to the detenue and that therefore, there was no need to supply the Tamil version of the remand order. At this juncture, this Court deems it fit to extract paragraph 6 of the judgment of the Hon''ble Supreme Court in Hadibandhu vs. District Magistrate, Cuttack and another, reported in AIR 1969 SC 43:-

Mere oral explanation of a complicated order of the nature against the appellant without supplying him the translation in script and the language in which he understood would in our judgment, amount to denial of right of being communicated the grounds and of being afforded the opportunity of making a representation against the order.

(h) In A.C. Razia Vs. Government of Kerala and Others, , the majority view of the Supreme Court at paragraph 10 is as follows:-

We are concerned here with clause (5) of Article 22. The dual rights under clause (5) are: (i) the right to be informed as soon as may be of the grounds on which the order has been made, that is to say, the grounds on which the subjective satisfaction has been formed by the detaining authority and (ii) the right to be afforded the earliest opportunity of making a representation against the order of detention. By judicial craftsmanship certain ancillary and concomitant rights have been read into this Article so as to effectuate the guarantees/safeguards envisaged by the Constitution under Clause (5) of Article 22. For instance, it has been laid down by this Court that the grounds of detention together with the supporting documents should be made available to the detenu in a language known to the detenu. The duty to apprise the detenu of the right to make representation to one or more authorities who have power to reconsider or revoke the detention has been cast on the detaining authority. So also the duty to consider the representation filed by or on behalf of the detenu with reasonable expedition has been emphasized in more than one case and where there was inordinate delay in the disposal of representation, the detention was set aside on that very ground.

(i) In Muruga Thevar vs. State of Tamil Nadu, reported in 2007 (1) MLJ (Crl) 987, one of the grounds, on the basis of which, the detention order therein was questioned was that the remand order and the remand extension order, which formed the basis for the detaining authority to come to the conclusion that the detenu was in custody in connection with a criminal case, were not furnished in Tamil. It was contended that the detenu did not know English. Reliance was placed on Powanammal''s case, cited supra. On the abovesaid aspect, the Hon''ble Division Bench of this Court, at paragraph 6 held as follows:-

A perusal of the grounds of detention indicates that the two documents in questions viz., the remand order and remand extension order formed the basis for the detaining authority to come to a conclusion that the detenue was in custody in connection with the criminal case and that she was likely to be released on bail after filing the bail application. Therefore, it can be said that the documents in question were relied upon documents. Once such conclusion is reached, the ratio of the decision laid down by the Honourable Supreme Court is squarely applicable. Therefore, it is immaterial as to whether any prejudice was caused to the detenue and since the translated version of the relied upon document had not been given, it must be taken that the order of detention was vitiated.

(j) In Karunakaran vs. State of Tamil Nadu, (HCP. No. 626/2008 dated 06.04.2009), copy of the remand report, arrest card were not served on the detenu along with the translated copies of the documents. On the above aspect, at paragraph 6, the Hon''ble Division Bench has held as follows:-

6.............. But, in so far as the translated version is concerned, when the copies are served upon the detenu, there was really a request for giving a translated copy and actually the translated copy was not supplied to him. It is quite evident from the communication particulars what is all mentioned thereunder is that he could get the translated version from the counsel who is already appointed to him. But that is not accepted, when the detenu is not conversant with the language in which the copies were served and when the request is also made, the authorities should have supply the same so that he could understand the contents of the material. Mere supply of the copies of the documents relied on without making the detenu to understand what it is, would not satisfy the law and hence non compliance by giving the translated version would also made the order suffers and further this would be violative of right available to the detenu and this would make the order suffer..........

(k) In B. Sesurani vs. State of Tamil Nadu, (HCP(MD) No. 909 of 2013 dated 29.10.2013), one of the grounds of challenge was that a bail application relied on by the detaining authority was not furnished in Tamil, which deprived the detenu therein to make an effective representation. While setting aside the detention order, the Hon''ble Division Bench, at paragraphs 8 and 9 held as follows:-

It is true that the Detaining authority is empowered to detain any person, which is in conversion of law and habitually committed the offence. But while doing so, the order of detention has to be communicated along with the relied on documents, if that could be material information, not only in the English Version, but also in the language known to the detenu. In the instance, the detenu should understand the order in the language known to him i.e. Tamil version, which has not been furnished by the Detaining Authority. Therefore, denial of such document in Tamil Version would vitiate the impugned order and accordingly, the same cannot be allowed to stand.

The Constitution requires that the grounds must be communicated in a language understood by the person concerned so that he can make an effective representation. What applies to a document would equally apply to furnishing a translated copy of the document in the language known to and understood by the detenu. Therefore, the detention order passed against the detenu is vitiated in law.

Thus it is well settled in a catena of decisions that if any material document is considered by the detaining authority for arriving at the subjective satisfaction by the Detaining Authority, the detenu is entitled to a copy of such document, in the language known to him and that the contents of the same should also be explained.

In view of the above discussion and decisions, cited supra, continued detention of the detenu is rendered illegal. Habeas Corpus Petition is allowed. We, therefore, direct that the detenu, Muniyandi @ Ettu Idly Muniyandi, be released forthwith, unless his presence is required in connection with any other case.