B.Thenmalli vs State of Tamil Nadu & Ors.

The petitioner is the wife of the detenu viz., Balu alias Balasubramaniyan, S/o.Packirisamy, aged 45 years. The detenu has been detained, as per

the order of the second respondent, dated 16.10.2017, under Section 2(b) of the Tamil Nadu Act 14 of 1982, branding him as ""Boot Legger"".

Challenging the same, the petitioner has come up with this Habeas Corpus Petition.

We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents. We have also perused

the records carefully.

Though a number of grounds have been raised in the affidavit filed in support of the petition to assail the Order of Detention, the learned counsel

for the petitioner mainly relies on the contention that the Detaining Authority, who received a representation dated 23.10.2017 from the petitioner,

who is none other than the wife of the detenu, without referring the same to the Government, chose to pass an order of rejection rejecting the said

representation on 30.10.2017, namely, after the Detention Order was approved by the Government and that the said rejection order should be

viewed as one passed by an authority which had become functus officio.

We have considered the above submissions and heard the learned Additional Public Prosecutor on the submission made by the learned counsel

for the petitioner.

Admittedly, the order of rejection dated 30.10.2017 was passed by the Detaining Authority and the Detention Order was approved by the

Government on 27.10.2017. As such, there is substance in the contention of the learned counsel for the petitioner that the rejection order dated

30.10.2017 came to be passed by the Detaining Authority, who had then become functus officio. In this regard, the learned counsel for the

petitioner drew our attention to the order of a Division Bench of this Court dated 27.02.2013 in H.C.P.(MD)No.96 of 2013 (Indira vs. The

Additional Secretary, Government of India and others) and another order of a Division Bench of this Court in H.C.P.(MD)No.488 of 2008

[Ravinthiran @ John Ravinthiran vs. State of Tamil Nadu] reported in 2009(1) MLJ (Crl) 721].

The relevant passages in the above said judgment in Ravinthiran''s case relied on by the learned counsel for the petitioner are extracted

hereunder:

Section 3(3) of the Tamil Nadu Act 14 of 1982 reads as follows:

(3) When any order is made under this Section by an officer mentioned in subsection (2), he shall forthwith report the fact to the State

Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the

matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved

by the State Government.

No doubt, as prescribed above, the Detaining Authority has rightly forwarded the file for approval to the Government within 12 days and it was

approved on 15.4.2008. But, it is seen that the Detaining Authority, after approval of the detention on 15.4.2008, failed to forward the

representation to the Government but proceeds to dispose of the same on 24.4.2008, which exercise is totally unwarranted on his part. In such a

situation, the Detaining Authority has no power to deal with or pass orders on the representation. It is useful to extract here the observation of the

Division Bench in the case as Rajeswari v. Secretary to Government, Prohibition and Excise Department and Another (supra).

5.............. It is true that the Government approved the detention order on 18.11.2005. In such circumstances, having received the representation

on 21.11.2005 by the District Collector, it is but proper on his part to forward the same to the Government, since after approval of the detention

order by the Government, he has no power to pass an order on the representation......................

Likewise, in Puranlal Lathanlal v. Union of India (1958) Crl.LJ 283, it was held thus:

the detaining authority is obliged to forward all the subsequent materials having a bearing on the matter to the Government and to the Board and

that otherwise the action of the detaining authority in withholding of subsequent information tending to falsify or believe the earlier materials on

which the detention order was passed, would stand unchallenged and there is a danger of withholding all materials on the matter in issue in order to

sustain the order of detention, which would definitely lead to a situation where the personal right and liberty of a person would be at stake at the

hands of the Executive and the safeguard provided by the Constitution for the protection thereof would be impaired.

Thus, when the Detaining Authority, exceeding his powers, has erroneously taken up the exercise of dealing with the representation and further,

when such representation was not considered by the Government, we are of the considered view that the detenu is greatly prejudiced and his

valuable right is taken away; as a result, the ultimate order of detention is vitiated.

A perusal of the detention order would go to show that the Detaining Authority himself considered the representation and passed the order of

rejection on 30.10.2017, after the Detention Order came to be approved by the Government on 27.10.2017 itself.

The above said ratio found in the judgment relied on by the learned counsel for the petitioner squarely applies to the facts of the case on hand.

Relying on the same, this Court, hereby, holds that there is failure on the part of the Detaining Authority to forward the representation to the

Government and his option to deal with the same and reject the same, that too, after the approval of the Order of the Detention by the

Government, is without jurisdiction and hence, on the said ground alone, the Order of Detention is liable to be set aside.

In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the second respondent, in his proceedings in

C.O.C.No.70/2017, dated 16.10.2017, is quashed. The detenu, namely Balu alias Balasubramaniyan, S/o.Packirisamy, aged 45 years, is ordered

to be set at liberty forthwith, if he is not required for detention in connection with any other case.