Smt.S.Naviya vs The State of Tamil Nadu, Represented by its Secretary, Department of Home, Prohibition and Excise, & Anr.

This Habeas Corpus Petition is instituted calling in question the order of detention passed by the District Magistrate and District Collector,

Dharmapuri on 14.12.2016, exercising the power available to him under Section 3 of the Tamil Nadu Prevention of Dangerous Activities of

Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offendrs, Sand Offenders, Sexual Offenders,

Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982) (in short referred to as the ''Act'' henceforth), detaining Shri

Kalaimoorthy, Son of Kumar of Bethathampatti village, Pappireddippatti Taluk, Dharmapuri District. The District Magistrate-cum-Collector has

also drawn the grounds of detention on the same day. Specifically, three instances of the alleged commission of various offences by the detenu

were noted in the grounds of detention. They are registered as (i) Crime No.63 of 2012 on the file of the Morappur Police Station, (ii) Crime

No.45 of 2014 of the same Morappur Police Station and (iii) Crime No.241 of 2014 on the file of the very same Police Station.

The reasons why the Detaining Authority has been satisfied in arriving at his conclusion that the detenu answers the description of Goonda as

defined under Section 2(f) of the Act and as to why the detenu deserves to be detained to prevent him from indulging in commission of various

offences are all set out in detail. The detention order tries to set out as to how fearsome the detenu was and as to how the society at large is fearful

of his activities and as to how the law and order situation is getting impacted by the activities indulged by the alleged detenu.

Shri R.Sankarasubbu, learned counsel for the writ petitioner would strenuously urge that the provision available under Section 3 of the Act is

greatly misused by taking recourse to the said provision, persons suspected to have been involved in more than one crime is sought to be detained.

The learned counsel for the petitioner would submit that the abuse of this process would not be tolerated at all as the liberty of the individual,

which is a guaranteed concept in this country should not be allowed to suffer for any reason whatsoever. He would submit that instead of

subjecting the detenu to the ordinary course of law so that if the detenu was surely guilty of the allegations leveled against him, he should have been

prosecuted fairly and properly. If the allegations get established, one can understand the competent Criminal Court convicting any such wrong doer

and then confine him to a prison for a fixed duration.

In the instant case, no prosecution of the alleged crimes indulged in by the detenu has reached the stage of conducting the trial. Very strangely

the cases are kept pending this long without getting them decided so that in police records it can be reflected that there is more than one case

pending against the alleged detenu.

It may be true that the pendency of large number of cases may offer some kind of justification for the subjective satisfaction of the Competent

Authority for purposes of arriving at a conclusion with regard to the requirement of preventively detaining any such individual. But, however, while

keeping the criminal cases booked against some persons pending and then falling back upon the provisions contained in Section 3 of the Act, so

that the same man can be incarcerated in jail without necessity to face trial for one whole year amounts to a clear case of an abuse of the power, if

not an arbitrary exercise of the same.

While attacking the detention order, though several contentions have been canvassed, but one ground which Shri R.Sankarasubbu, learned

counsel for the petitioner, urged before us deserves a serious consideration at this stage. The learned counsel for the petitioner has brought to our

notice the entire paper book containing the material relied upon by the Detaining Authority has been made available to the detenu by the Detaining

Authority. It comprises of 125 pages of material which formed the basis for consideration of the Detaining Authority. The material supplied at the

following page Nos.2, 45, 57, 58, 59, 60, 61, 62, 63, 77 and 125 are not legible at all.

Similarly, the Remand Report enclosed at page No.125 is completely in English language and the detenu, it is said, is not familiar of reading,

writing and understanding the English language. Therefore, in the above context, the learned counsel for the petitioner would urge that a material

which is not readable or understandable by the detenu, vitiates the detention order itself as that would effectively deny the detenu''s right to

represent against his preventive detention.

We have perused the above material. Though some of those material relate to copies of the First Information Report in which the detenu was

shown as one of the accused and relate back to the date 19.2.2012 onwards, but, however, at page No.57 onwards, there was an alleged

confessional statement said to have been made by the detenu in connection with Crime Nos.63 of 2012 and 45 of 2014 of Morappur Police

Station which formed the basis for the detention order by the Competent Authority.

When we have perused the said confessional statement enclosed at Page No.57 dated 24.9.2014 onwards, we could easily realise, without

much difficulty, that using a photo copying machine, a copy was generated of the alleged confessional statement. It is visible that this photo copy of

the confessional statement is taken from not the original recorded one but obviously from a carbon copy version thereof.

As a result of photo copying from a carbon copy version, the letters and sentences continuously got smudged and some of the lines made on

the reverse of the original also got reflected. Virtually, the said confessional statement enclosed at page No.57 onwards became, to a large extent

unreadable.

It is one of the important safety features incorporated in Article 22(5) of our Constitution against the exercise of power of preventive detention

that detenu must be provided with a very effective opportunity to make a representation against his preventive detention. If there are fetters

imposed on that effective utilisation of such an opportunity by the detenu, the detention order no longer becomes sustainable. Any denial of an

opportunity to make effective representation against the preventive detention is a fatal point for sustaining the preventive detention order any

further.

In view of the settled legal proposition in this regard, as per the judgment of the Supreme Court in Rajammal vs. State of Tamil Nadu and

Another {(1999) 1 SCC 417}, we cannot sustain the preventive detention order passed by the Detaining Authority on 14.12.2016 any further and

we declare that the further detention of the detenu is vitiated and he shall be set at liberty forthwith. A copy of this order be made available to both

sides as expeditiously as possible by the Registry. The operative portion of the order may be communicated to the Superintendent, Central Prison,

Salem to set free the alleged detenu forthwith.

With the above observations, the Habeas Corpus Petition is allowed. No costs.