HCP/1836/2002 of N.KUMARESAN Vs 1.SECRETARY TO GOVERNMENT on 11 December 2002

:O R D E R

(Order of the Court was made by V.S.SIRPURKAR, J.)

Challenge is to the order dated 24.7.2002 passed by the secondrespondent, District Collector and District Magistrate, Kancheepuram, orderingthe preventive detention of one Kasi, S/o Kutti on the ground that he is abootlegger and that his continued liberty would hamper the public order.

2. Learned counsel for the petitioner, Mr.Swamidoss Manokaran, raisesonly two points assailing the correctness of the order as well as thedetention. Firstly, he points out that the detention seems to have beenordered casually, even without reference to the existing facts. For this, thelearned counsel takes us through the grounds of detention, and more particularly ground 5(ii), wherein the detaining authority has stated asfollows:- "He was ordered to be remanded till 26.07.2002. He has not filed any bailapplication so far in the court. But there is a possibility of his filing ofa bail application and being enlarged on bail by the criminal court. I amalso aware that in such cases, bail is granted after lapse of some time and ifThiru.Kasi is let to remain at large, he is likely to indulge in suchactivities in future......"

3. This order seems to have been passed on 24.07.2002, whereas according to the learned counsel the bail application was actually filed muchbefore that. Learned counsel points out that a bail application came to befiled by the detenu on 18.7.2002, on which date itself a copy of the same wasgiven to the Public Prosecutor and the matter was fixed on 23.7.2002, on whichdate it was the State which took the adjournment. It was ultimately posted on30.7.2002 and finally on 6.8.2002. From this, the learned counsel points outthat the detaining authority, as also the sponsoring authority should havebeen in the know of the facts and should have acted on the correct facts. Themaking of a statement that no bail application had been filed, would suggestthat the authority concerned had not applied its mind properly.

4. However, the learned Additional Public Prosecutor submits that though it is true that a statement has been made that the bail application hadnot so far been filed till the passing of the detention order, it could havebeen due to the fact that the detaining authority was not in the know of thematter and that the Public Prosecutor, or as the case may be, the sponsoringauthority had not forwarded the bail application to the detaining authority.At any rate, the learned Additional Public Prosecutor points out that what wasexpressed was that the bail application was not filed and yet an apprehensionwas expressed that the bail application was likely to be filed, whichapprehension also proved to be truthful. Therefore, the learned AdditionalPublic Prosecutor says that there is no prejudice caused to the detenu at all.He further submits that a bail application which is rejected need not even beput before the detaining authority as that would not be necessary as the samewas an insignificant document.

5. We are not on the significance or insignificance of the documentas much on the depiction of correct facts. Ordinarily, it should have beenknown to the detaining authority as to whether a bail application was filed ornot. One of us (V.S.SIRPURKAR, J.) had already taken a view that a service onthe Public Prosecutor would mean the service on the State. Though a DistrictMagistrate is an entirely different entity, we ordinarily expect the DistrictMagistrate or atleast the sponsoring authority to be aware of the fact thatthe bail application was filed as early as on 18.7.2002 and that the PublicProsecutor himself had asked the time and that it was fixed on 23.7.2002, aday earlier to the order of detention. The learned Public Prosecutor alsoinforms that the sponsoring authority should not have mentioned even this factof bail application. It is clear that the concerned authority did not botherto go into the contents of the bail application, in which the detenu must haveabjured his guilt and must have claimed innocence even in respect of the ground case. Though it is true that all the bail applications which areultimately rejected need not be put before the detaining authority and theircopy need not be supplied to the detenu later on, it is unthinkable that thedetaining authority does not even take note of that fact and on the other handmakes a completely incorrect factual statement that no bail application wasfiled till the order was passed. This suggests the casual approach on thepart of the detaining authority. We are, therefore, convinced that thisincorrect statement depicts the casual approach with which the matters weredealt with, firstly by the sponsoring authority and secondly by the detainingauthority. In that view, the detention order itself would be bad as it waspassed casually and on the basis of incorrect statements made in the grounds.However, the matter does not stop here.

6. Learned counsel for the petitioner also submits that there are as many as eight adverse cases pointed out against the detenu and in all thecases, he is shown to have been convicted. Learned counsel then takes us topages 13,34 and 46, which are few of the orders where the petitioner is shownto have been convicted. It is, therefore, clear that the detaining authorityhas relied upon these orders. The learned counsel further points out thatthere are some English portions in these orders, which suggest that the detenuhad pleaded guilty and was fined for that purpose. Unfortunately, the portionregarding the plea of guilty and the conviction is in English. In ouropinion, the detenu was entitled to know as to whether in reality he wasconvicted on account of his pleading guilty. For that, the detenu had claimedthat he was an illiterate person. At least, he did not know and understandEnglish. Though the representation is made in English language, it is obviousthat the representation is made on his behalf by somebody else. Therefore,the plea raised by the learned Additional Public Prosecutor that in this casethe representation itself was made in English, cannot be considered. In ouropinion, the detenu who has pleaded the ignorance of English language wasbound to be supplied the translation of the English portions in page 13,34 and46. In one of the pages, the proforma is in English. Even that proforma wasbound to be translated, as it would have given the accused a confidence thathe was in reality convicted and it was he who was convicted, on the basis ofhis plea of guilt. That not having been done, the further detention alsosuffers from a defect.

7. In that view, the writ petition would have to be allowed and it ishereby allowed. The order of detention dated 24.7.2002 set aside and thedetenu Kasi, S/o Kutti, is directed to be released forthwith unless he isrequired in connection with any case.

Index : YesInternet : Yeskst.

To:

1. The Secretary to Government, State of Tamil Nadu, Prohibition and ExciseDepartment, Fort St.George,Chennai.

2. The District Magistrate and District Collector, Kancheepuram District,Kancheepuram.

3. The Superintendent, Central Prison, Vellore.

4. he Joint Secretary to Government, State of Tamilnadu, Public (Law andOrder), Fort St.George, Chennai-9.

5. The Public Prosecutor, High Court, Chennai-104.