Pandiyammal vs State of Tamil Nadu

M. Chockalingam, J.—This petition challenges an order of the second respondent made in No. 03/BDFGISSV/2010 dated 8.2.2010,

whereby the son of the petitioner by name Raja @ Chinna 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) C5 Karimedu PS Cr. No. 243/09 under Sections 341, 302 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 C4

Thilagarthidal PS in Crime No. 1903/2009 under Sections 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; that no

bail application has been filed in either of the 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, sent the matter to the Government before affirming the

order by the State; 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 one

Mahendran, the friend of the detenu, with whom he was doing such illegal activities in the past, and he has stated that he met the detenu in prison a

few days earlier, and the detenu informed him that he is going to move bail in those cases through an Advocate, and under the circumstances, the

first ground has got to be rejected.

As far as the second ground regarding the post-detention representation for legal assistance, is concerned, the learned Additional Public

Prosecutor would submit that it cannot be made 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. It is pertinent to point out that in the second adverse case and in the ground case, he has not moved bail before

any Court of criminal law. 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 @ Chinna Raja, s/o. Essac, is now in remand in the ground case in C4 Thilagarthidal P.S. Cr. No. 1903/2009 and

also the adverse case in D2 Sellur PS Cr. No. 3342/2009 and he is lodged at the Central Prison, Madurai and he has not filed bail applications in

the above adverse and ground cases. However I am aware through the statement of Tr. Mahendran, S/o Sudalai that Tr. Raja @ Chinna Raja is

making efforts to file bail applications in the above said ground case and adverse case, before the concerned court. Hence, I am also aware that

there is a ''real possibility'' of his coming out on bail by filing bail application in the above ground case in C4 Thilagarthidal PS Cr. No. 1903/2009

and the adverse case in D2 Sellur PS Cr. No. 3342/2009 by filing bail applications, since in similar cases bails are granted by the concerned Court

or Higher Court.

The very reading of the above observation would indicate that though the authority has got the clear knowledge that no bail application was

filed either in the second adverse case or in the ground case, he has stated that there was a real possibility of the detenu coming out on bail. Now,

the contention put forth by the learned Additional Public Prosecutor is that the sponsoring authority recorded a statement from one Mahendran, the

friend of the detenue, to whom it was informed by the detenu when he met him in the prison, that the detenu was going to move the Court for bail

in those cases through an Advocate. The very reading of the statement given by the said Mahendran, would indicate that the crime numbers and

further particulars are given which could not have been given by him. This Court is of the considered opinion that this cannot be a material, much

less cogent material, and it cannot be relied upon. Under the circumstances, this Court is of the view that the same cannot be considered to be a

cogent material. Hence the contention put forth by the State has got to be rejected.

Equally, 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. Hence both the grounds have 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.