IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.04.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH H.C.P.No.1599 of 2007 Thiru Velu S/o Arumugam .. Petitioner -vs- 1. The State of Tamil Nadu rep.by its Secretary to Government Prohibition and Excise Department Fort St.George Chennai 600 009 2. The District Magistrate and District Collector Vellore District Vellore .. Respondents Petition filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for the records in connection with the order of detention passed by the second respondent dated 31.10.2007 in his office Ref.C3.D.O.No.100/2007 against the petitioner's mother Tmt.Kaliyammal, W/o Arumugam now confined at Special Prison for Women, Vellore, set aside the same and direct the respondents to produce the above said detenue before this Hon'ble Court and set her at liberty. For Petitioner :: Mr.V.Parthiban for Mr.E.Kannadasan For Respondents :: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ ORDER D.MURUGESAN, J. The petitioner is the son of the detenue-Kaliyammal, who has been detained under Tamil Nadu Act 14 of 1982 branding her as "bootlegger" by the orders of the District Magistrate and District Collector, Vellore District made in his office Ref.No.C3.D.O.No.100/2007 dated 31.10.2007. Prior to the passing of the impugned detention order, four adverse cases were noticed against the detenue, namely, one under Section 4(1)(i) of the Tamil Nadu Prohibition Act, two under Section 4(1)(a) of the Tamil Nadu Prohibition Act and one under Section 4(1)(aa) of the Tamil Nadu Prohibition Act on the file of the Vaniyambadi Prohibition Enforcement Wing Police Station, Vellore District. 2. On the afternoon of 9.10.2007, the Sub Inspector of Police, Vaniyambadi Prohibition Enforcement Wing Police Station along with police party reached Velakkal Natham in Natrampalli Police Station limits and at about 13.30 hours, they conducted prohibition raid and noticed the detenue sitting on the floor keeping one 10 litres capacity white colour plastic can in front of her, pouring some liquid substance from the said white colour plastic can into a green colour plastic tumbler and offered the same to a person standing in front of her. On seeing the police party, the person who came to consume arrack escaped from the place dropping the plastic tumbler. Hence the detenue was arrested and a case in Crime No.857 of 2007 for the offence under Section 4(1)(1), 4(1)(aaa), 4(1-A)(ii) of the Tamil Nadu Prohibition Act read with Section 328 IPC on the file of Vaniyambadi Prohibition Enforcement Wing Police Station was registered. The detenue was produced before the Judicial Magistrate No.IV, Tirupattur on 9.10.2007 and she was ordered to be remanded till 23.10.2007 and the remand was further extended upto 6.11.2007. In the meantime, the order of detention was passed. 3. Mr.V.Parthiban, learned counsel appearing for the petitioner has questioned the order of detention on two grounds. Firstly, he would submit that though the detaining authority has relied upon the fact that the detenue had filed a bail application before the High Court, Chennai in Crl.O.P.No.32374 of 2007 and the same was pending, the copy of the bail application was not furnished. Secondly, the learned counsel would submit that the detenue had made a representation on 7.11.2007 seeking for a copy of the said bail application and the bail order in order to make an effective representation, but the same have not been supplied. 4. We have heard Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor for the respondents. 5. Insofar as the non-supply of the bail application, the learned counsel for the petitioner would rely upon a Division Bench judgment of this Court in Jarinabegam v. State of Tamil Nadu rep.by Secretary to Government, Prohibition and Excise Department, Chennai https://hcservices.ecourts.gov.in/hcservices/ and another (2007-1-L.W.(Crl.) 276 and contend that the failure to supply the bail application would vitiate the order of detention. Before we consider the said contention, we would like to refer to the judgments of the Apex Court on this aspect. 6. The Apex Court in K.Varadharaj v. State of Tamil Nadu (2002 (6) SCC 735) upon noticing some of the earlier decisions, in paragraph-6 observed as follows:- "From the above observations, it is clear that placing of the application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case." From the above observation it is clear that placing of the bail application and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case. 7. While dealing with the obligation of the detaining authority to supply only such of those documents which are relevant, the Apex Court in the judgment in Radhakrishnan Prabhakaran v. State of Tamil Nadu (2000 (9) SCC 170) has held in paragraph-8 as follows:- "We may make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him. It is admitted by the learned counsel for the petitioner that the order granting bail has been supplied to him. Application for bail has been submitted by the detenu himself when the order of detention was passed which was subsequent to the order granting bail. We cannot comprehend as to how a prior order rejecting bail would be of any relevance in the matter when it was later succeeded by the order granting bail...." Quoting the above two judgments with approval, the Apex Court in Sunila Jain v. Union of India and another (2006 (2) SCC (Crl.) 90, has held in paragraph-18 as follows:- "The decisions of this Court referred to hereinbefore must be read in their entirety. It is no doubt true that whether a detenu on the date of the passing of the order of detention was in custody or not, would be a relevant fact. It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain conditions in pursuance to and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be https://hcservices.ecourts.gov.in/hcservices/ able to flee from justice, that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however, not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu." Having held so, the Apex Court has further observed that it is not a universal rule that irrespective of the fact and circumstances of the case, it would be imperative to place an application for bail as also the orders passed thereupon before the detaining authority and the copies thereof shall be supplied to the detenu. A careful reading of the above judgment of the Apex Court would make it clear that it is not mandatory for placing an application for bail to the detaining authority and the consequent supply of the said application to the detenu in all cases. Of course, a distinction is sought to be made by the Apex Court in the judgment in P.U.Abdul Rahiman v. Union of India (1991 Supp.2 SCC 274), wherein the Apex Court has observed that in the two applications for bail, the appellant therein had specifically stated that he and the co-accused had retracted from the statements made by them and in that circumstance, failure to supply the bail application which contained material facts and which were taken into consideration by the detaining authority ought to have been supplied. 8. In M.Ahmedkutty v. Union of India (1990) 2 SCC 1, the Apex Court has observed as follows:- "Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case." https://hcservices.ecourts.gov.in/hcservices/ In Abdul Sathar Ibrahim Manik v. Union of India (AIR 1991 SC 2261), the Apex Court while considering the failure on the part of the detaining authority to furnish copy of the bail application and the order had observed as follows:- "12(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody. .... 12(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court." 9. Keeping the above law in mind, the facts of the present case must be considered. An application for bail filed in Crl.M.P.No.8430 of 2007 was dismissed by the Sessions Court on 24.10.2007. Thereafter, the detenue had filed an application for bail before this Court in Crl.O.P.No.32374 of 2007. While the said application was pending, the detention order came to be passed on 31.10.2007. The contention of Mr.V.Parthiban, learned counsel for the petitioner is that the bail application is a material document and the failure to supply the said document would vitiate the order of detention. In our opinion, the said contention cannot be accepted in the light of the judgment of the Apex Court in Radhakrishnan Prabhakaran's case and in Sunila Jain's case (supra). 10. In fact, after having considered the judgment in M.Ahmedkutty's case and in Abdul Sathar Ibrahim Manik's case, a Division Bench of the Madurai Bench of this Court (one of us was a party) in the judgment in M.Rakku v. Secretary to the Government, State of Tamil Nadu, Prohibition and Excise Department and another (2007) 2 MLJ (Crl.) 269 has also held that the detenu has to prove that the non-supply of the documents placed before the detaining authority has adversely affected his right to make an effective representation. In this case, the application for grant of bail was earlier dismissed by the learned Sessions Judge and as against that, https://hcservices.ecourts.gov.in/hcservices/ an application for bail was filed before this Court and the same was pending. The contents of the copy of the application were within the knowledge of the detenue and therefore the non-supply of the said copy will not cause any prejudice to the detenue. As far as the forming of subjective satisfaction by the detaining authority is concerned, it would be sufficient that the detaining authority was aware of the fact that the application for bail was pending and there is every possibility of the detenue coming out on bail. 11. For all the above reasons, we are of the considered view that both the grounds raised by the learned counsel for petitioner must fail. Accordingly, the habeas corpus petition is dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ss To 1. The Secretary to Government of Tamil Nadu Prohibition and Excise Department Fort St.George Chennai 600 009 2. The District Magistrate and District Collector Vellore District Vellore 3. The Public Prosecutor High Court, Madras 4. The Superintendent, Special Prison for Women Vellore. 5. The Joint Secretary, Public (Law & Order) Fort St. George, Chennai -9. + 1 CC to Mr.E.Kannadasan Advocate SR NO.15558 H.C.P.No.1599 of 2007 MDR(CO) JJM(15/04/08) https://hcservices.ecourts.gov.in/hcservices/