Marimuthu vs State of Tamil Nadu

K.P. Sivasubramaniam, J.—The petitioner, the father of the detenu, Ravi, detained as a bootlegger under the Tamil Nadu Act 14 of 1982,

hereinafter called the Act, seeks to file this petition, to release his son. The detenu has been detained pursuant to the detention order dated

1.8.2002.

A perusal of the detention order discloses that apart from the alleged involvement of the detenu in four past complaints under the Prohibition

Act, all of which ended in conviction, on 14.7.2002 when the Inspector of Police, Dusi Circle was on prohibition raid at about 15.30 hours, had

come across the detenu selling arrack at Karanthai Village. A voluntary confession statement is also alleged to have been recorded and in the

presence of two independent witnesses, a plastic can containing arrack and other materials were seized under mahazar. Thereafter, he was

produced before the Judicial Magistrate, Cheyyar, who had remanded him to custody till 26.7.2002 and subsequently, the remand was extended

till 9.8.2002. The detention order also deals with the medical report relating to the medical treatment given to one Egambaram, who is alleged to

have consumed the arrack supplied by the detenu and the finding of the presence of atropine which is a poisonous substance causing danger to

human life. On the request of the Inspector of Police and the Detaining Authority (D.A.) being himself satisfied with the need to detain the accused

under Act 14 of 1982, the impugned detention order was passed.

Learned counsel for the petitioner raised the following points and the same are considered one after the other:-

The first objection is the alleged delay in the disposal of the representation dated 19.8.2002 which was rejected on 13.9.2002 and served on the

detenu on 19.9.2002. The representation was received on 21.8.2002 and the remarks were called for from the Collectorate on 22.1.2002. The

communication calling for the remarks was received on 28.8.2002 and on the same day, remarks were called for from the Sponsoring Authority.

Remarks were received on 31.8.2002 and dispatched to the Government. The Government received the remarks on 6.9.2002. The file was

thereafter circulated and signed by the Under Secretary on 9.9.2002, by the Deputy Secretary on 11.9.2002 and the concerned Minister on

12.9.2002. The order of rejection was passed on 13.9.2002. The above data will show that there is no unreasonable or unexplainable delay in the

matter of consideration of the representation. The delay if any, has been only in the transit of the communication between the Government and the

Collectorate between 22.8.2002 and 28.8.2002, when the Government had called for the remarks and from the Collectorate to the Government

between 31.8.2002 to 6.9.2002, when remarks were sent by the Detaining Authority to the Government. Therefore, the delay is neither

unreasonable nor can the Detaining Authority or the Government be blamed.

The second point is that there was contradiction between the English version of the detention order and the Tamil translation and that while

dealing with the possibility of the detenu coming out on bail, in the Tamil version of the expression ""imminent"" does not find place. To appreciate

the point raised by the petitioner, it is necessary to extract the relevant paragraph No.5 both in the Tamil and the English version:-

5) I am aware that Thiru. Ravi is now in remand and is lodged in the Sub-Jail, Cheyyar. The bail application moved on behalf of the detenu was

dismissed on 23.7.2002 by the Principal Sessions Judge, Tiruvannamalai. However, there is an imminent possibility of his filing further bail

application or move the higher Courts for bailing him out. I am also aware that in such cases, bail is granted after a lapse of some time and there is

an imminent possibility of his coming out on bail. If the detenu comes out of bail, he is likely to indulge in such prejudicial activities in future as well,

and therefore, there is compelling necessity to pass an order of detention against him a view to prevent him from indulging in such prejudicial

activities in future. .

5) jpU/utp vd;gth; bra;ahh; fpisr;rpiwapy; milg;g[ fhtypy; itf;fg;gl;Ls;shh; vd;gij ehd; mwpntd;/ jpU/utp vd;gthpd; rhh;gpy; jpUtz;zhkiy Kjd;ik mkh;

[t[ ePjpkd;wj;jpy; jhf;fy; bra;ag;gl;l $hkPd; kD 23/07/2002?e; njjpad;W js;Sgo bra;ag;gl;Ls;sJ/ ,Ug;gpDk; ,th; jd;id $hkPdpy; tpLkhW nfhhp.

nkw;bfhz;Lk; cldoahf $hkP;d;kDit jhf;fy; bra;tjw;F my;yJ cah; ePjpkd;wj;ij mqFtjw;F cldo rhj;jpaKs;sJ/ ,j;jifa neh;t[fspy; rpwpJ fhyk; fHpj;J

,tUf;F $hkP;d; mspf;fg;gl;L. ,th; $hkPdpy; tpLjiy bra;ag;gLtjw;F rhj;jpaKs;sJ vd;W ehd; mwpfpnwd;/ jLg;g[f; fhty; ifjpahd ,th; $hkPdpy; btspna

te;jhy; ,th; ,dp nkw;bfhz;Lk; mj;jifa Fe;jfkhd eltof;iffspy; LgLtjpypUe;J ,tiuj; jLf;Fk; nehf;fj;Jld; ,tUf;F vjpuhf jLg;g[f; fhty; Miz xd;iw gpwg;gpf;f

mj;jpahtrpakhd mtrpak; vGe;Js;sJ@/

The grievance of the petitioner is that he knows only Tamil and the Tamil version does not contain the expression to the effect that the bail would

be granted imminently. We do not agree with this contention for several reasons.

Firstly, the Tamil version clearly states that there was imminent possibility of the detenu filing the bail application. It is only in the second sentence

it is stated that there was also the possibility of the detenu being released on bail after some time. The word @cldoahf@ (imminent) is not repeated

again. There is absolutely no necessity to repeat the word ""imminent"" twice. If there was imminent possibility of the detenu applying for bail and is

being granted with bail, releasing him on bail naturally follows and the usage of the word ""imminent"" would be a redundant and unnecessary

expression. His being released on bail would be possible only on his filing the bail application and the order to be passed by the Court where the

bail application is moved is also imminent without the need for the Detaining Authority saying it once again. Therefore, we hold that there is

absolutely no need to have repeated the word ""imminent"" twice in the Tamil translation.

Secondly, this is an issue which is to be considered while trying to find out whether there was adequate justification/reasoning spelt out in the

detention order thus revealing that the Detaining Authority was satisfied about the need to detain the detenu under the Act. This is not an issue

which would prejudice the interest of the detenu under Article 22(5) of the Constitution. This Court has to be satisfied as to whether proper

reasons are spelt out by the Detaining Authority and whether he has applied his mind or not. In a batch of writ petitions disposed of by a Full

Bench of this Court in Kuppammal vs. District Collector and others in HCP No. 11 of 2000 and batch of cases dated 13.2.2001, the Full Bench

had to deal with a similar issue of variance between the English and Tamil version. In the English version the word ""imminent"" was available while in

Tamil translation, the said word was missing.

The Full Bench did not answer the issue positively but held thus in paragraph Nos.40 and 41 of its order as follows:-

On a consideration of the entire case law on the subject, we are of the considered view that the translated or vernacular copy of the grounds

of detention furnished to the detenu should not be a distorted one or it should not give a completely different meaning or version (when translated

copy of the grounds of detention in the language known to the detenu is furnished). The Constitutional requirements would be satisfied by

translating and explaining the contents of grounds of detention and furnishing a copy of the grounds of detention in the language known to the

detenu and it would be sufficient if such translation conveys or communicates what had been expressed by the detaining authority in the grounds of

detention made in official language and it would be sufficient if the translation conveys the meaning or the implications or what the detaining

authority meant and desired to convey and it should not be distorted or it should not give altogether a different meaning.

In the present case, it is sufficient to answer the larger issue referred to Full Bench and it is not necessary to go into the merits of this contention

as already the detention has been quashed on other grounds. The reference is ordered in the above terms.

For saying so, the Full Bench took into account some earlier decisions. The counsel for the petitioner has not pointed out any judgment

positively holding that the expression ""imminent"", is a must or mandatory. The said expression could be substituted by any word or words meaning

that the ""release on bail was likely"", in the immediate future or at the earliest. Such a meaning should be conveyed in the detention order and it must

be shown that the Detaining Authority before passing the order was satisfied about the need to pass the order. In 1991 (1) SCC (Cri) 88

Kamarunnissa vs. Union of India, the Supreme Court held as follows, after analysing the previous decisions:-

From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly

be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of

reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all

probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing"".

In fact, in that case, the following is the portion of the order dealing with the possibility of the accused/detenu coming out on bail:-

Though you are in judicial custody but can be released on bail any time as the offence with which you have been charged is bail able in which case

you may indulge in similar prejudicial activities

It is pertinent to note that the above passage does not contain the expression either ""imminent"" or ""immediate"". The Supreme Court held that

such a possibility of the detenu being released on bail was a real one and not an imaginary one and also upheld the detention order. In the judgment

reported in Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi , the Supreme Court followed the judgment in

1991 (1) SCC (Criminal) Page 88 cited above. Though on facts the Supreme Court held that the detention order fell short of the requirement

enunciated in Kamarunnissa''s case, however, observed as follows:-

It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court

in Kamarunnissa. Even in the return filed in this petition, the authority has not stated (in response to Ground ''B'' of the writ petition) that there was

material before him upon which he was satisfied that the petitioner was likely to be released or that such release was imminent

The above extract will show that the usage of the word ""imminent"" is not absolutely essential. It would be sufficient even to state that the detenu

was likely to be released on moving a petition for bail. The judgment in 1994 SCC (Cri) 354 was taken note of by the Full Bench. After referring

to other judgments also, the Full Bench expressed in paragraph 22 that exact translation was not possible and what is expected is a fair or

reasonable translation which would convey the meaning or the effect and what was in the mind of the Detaining Authority. The Full Bench finally

concluded as in paras 40 and 41 extracted above.

Therefore, we are unable to accept the contention of the learned counsel for the petitioner. The ""imminent"" possibility of filing the bail

application and the likelihood of his being enlarged on bail has been stated in Tamil version also.

The next grievance of the petitioner is that the fact that he was under remand has not been properly placed before the Detaining Authority.

Though the Detaining Authority had referred to the last order of extension of remand from 26.7.2002 to 9.8.2002, the same was not placed before

the Detaining Authority along with either a supporting affidavit or a covering letter. Reliance is placed on the judgment of a Division Bench of this

Court in Alagar vs. State of Tamil Nadu 2000 (2) LW (Cri) 684 and subsequent judgments which had followed the said judgment as follows:-

HCP No. 1293 of 1998 dated 12.4.1999, Kittu vs. State of Tamil Nadu.

HCP No. 743 of 1999 dated 27.10.1999, Jagadeesan vs. State of Tamil Nadu.

HCP No. 718 of 1999 dated 1.11.1999, Murugan vs. State of Tamil Nadu.

HCP Nos.1254 and 1255 of 1999 dated 30.11.1999, Kasturi vs. State of Tamil Nadu.

HCP No. 1611 of 2000 dated 13.12.2000, Angamuthu vs. State of Tamil Nadu.

HCP No. 807 of 2001 dated 6.9.2001, Jamuna vs. State of Tamil Nadu.

As we felt that in Alagar''s case and other cases following the same, there was neither any discussion of the statutory provisions nor any

reference to any judgment of the Supreme Court, we had asked the learned counsel for the petitioner to argue in detail in support of the said

submission. Apart from the counsel for the petitioner in this writ petition, few other counsel had also expressed their wish to state their submissions

and we had also heard Mr. Venkatasubramaniam and Mr. Ravichandran.

The facts which are relevant for considering the above point are as follows:-

The proposal for detention was initiated by the Inspector of Police, Dusi Circle who had forwarded the papers along with an affidavit. In the

affidavit, it is stated that the detenu was produced before the Judicial Magistrate, Cheyyar on 14.7.2002 and he was remanded to custody upto

26.7.2002. On 26.7.2002, the remand was again extended till 9.8.2002. Though a copy of the remand order finds a place in the file of the

Detaining Authority and a copy of the same was also furnished to the detnu, the contention of the petitioner is that the last order of extension of

remand was not sent by the Sponsoring Authority to the Detaining Authority with a supporting additional affidavit or by a covering letter.

We had considered the submission of all the learned counsel. A perusal of the Act shows that there is no reference to any Sponsoring

Authority or any stage of consultation between the Sponsoring Authority and the Detaining Authority. The Detaining Authority is the original

Authority and it is he who passes the order on being satisfied that there were sufficient materials to justify the detention. He can act either on the

materials which are gathered by himself on his own without the assistance of or initiation by any Subordinate Officer or act at the request of a

Subordinate Officer. The process of gathering such materials or how he gathered those materials has no relevance for testing the satisfaction of the

Detaining Authority. What is relevant is to find out whether the materials on the basis of which he was satisfied to pass the detention order were

available before him or not and whether the copies of all such materials had been furnished to the detenu, to enable him to make an effective

representation. When once it is shown that all the materials on the basis of which the detention order was passed were available with the Detaining

Authority and copies are also furnished to the detenu, we fail to understand as to how the detention order could be vitiated only due to the

circumstance that some of the materials had been furnished later to the Detaining Authority without a covering letter or a supplementary affidavit.

Our attention has not been drawn to any statutory provision or any judgment of the Supreme Court which would make it mandatory that materials

to be furnished by the Sponsoring Authority to the Detaining Authority should be accompanied by an affidavit or a covering letter. It is only in the

context of supplying additional materials or grounds to the detenu, it was found that such additional materials should be furnished to the detenu only

along with an affidavit or a covering letter stating about the purpose of the additional material and that the same would be placed before the Board,

failing which the detenu would be deprived of his right to make an effective representation, vide the judgment of the Supreme Court in State of

Tamil Nadu Vs. Senthil Kumar and Anr, : There can be no dispute over the said proposition having regard to the prejudice that would be caused

to the detenu for dealing with the additional materials. The said judgment cannot therefore be an authority for the proposition that all the materials

supplied to the Detaining Authority before passing the detention order should be furnished by the Sponsoring Authority only along with an affidavit

or a covering letter.

As we had already pointed out neither in Alagar''s case nor in any of the judgments which had relied on the said order as enlisted above, is

there any reference to any statutory requirement or law laid down by the Supreme Court. The following three judgments are distinguishable in the

factual back-ground of each case.

In Balaraman vs. State of Tamil Nadu 1994 (I) LW (Cri) 266 the Division Bench was dealing with a case where the order of the Detaining

Authority was passed on 24.9.1993 and there were materials to indicate that the detenu was under remand only till 22.9.1993. There was no

material available to show that the detenu was remanded for a further period from 22.9.1993 and on 24.9.1993, when the detention order came to

be passed.

Likewise in the judgment reported in 2000 (2) LW (Cri) 638 Moses vs. Commissioner of Police, Chennai, the Division Bench dealt with a

case of the detention order having been passed on 16.4.1999 in which a reference has been made to the extension of the remand from 20.4.1999

till 4.5.1999. Therefore the Division bench rightly commented on the impossible situation of any reference being made to the same in the detention

order dated 16.4.1999 and set aside the detention order.

In Abdul Ali vs. Government of Tamil Nadu in W.P. No. 2229 of 1988 dated 8.8.1998, the Division Bench dealt with a situation where-under

it was seen that after the detention order had been signed by the final authority, certain clarifications had been called for and replies were received

subsequently. Such documents were not produced nor considered at the time of passing the detention order. Therefore in the said circumstances,

the detention order was held to be invalid.

Therefore, the above mentioned three judgments will not be of any assistance to the petitioner. On the contrary, the following judgments would

support the view which we are inclined to take.

In State of U.P. Vs. Shakeel Ahmed, : the question arose as to whether the copy of the report of the Sponsoring Authority should have been

supplied to the detenu. The Supreme Court held that it was not mandatory that the report of the Sponsoring Authority should be supplied to the

detenu under Article 22(5) of the Constitution. The Supreme Court further held that it is only a material furnished to the Detaining Authority.

The said judgment was referred to and followed in the judgment of a Division Bench of our High Court in Banial Ravi vs. State of Tamil Nadu

(HCP No. 1188 of 1997 dated 27.3.1998).

It is true that the two aforesaid judgments do not directly deal with the issue as to whether a supporting affidavit is a must for all the documents

furnished by the Sponsoring Authority, but would make it clear that the issue is one of satisfaction of the Detaining Authority and not a matter

which could result in any prejudice to the detenu. As long as the material is available with the Detaining Authority, before he passed the detention

order and copies of the said materials are also supplied to the detenu, the detention order will not be vitiated.

In Veerammal vs. District Magistrate, Perambalur, HCP 736 of 1999 dated 26.10.1999, the Division Bench dealt with a similar case of

affidavit of the Sponsoring Authority indicating the remand of the detenu only upto 24.3.1999 and with regard to the further extension of the

remand dated 24.3.1999, there was no reference in the affidavit of the Sponsoring Authority, but the same had been produced before the

Detaining Authority along with other documents. S.JAGADEESAN, J., speaking for the Bench held that the production of the order of further

extension of the remand along with other documents by the Sponsoring Authority cannot be ruled out though not mentioned in the affidavit and

hence the detention order cannot be set aside.

In Rama Amma vs. State of Tamil Nadu, HCP 1788 of 1999 dated 14.6.2000, the Division Bench dealt with the situation that while the

affidavit of the Sponsoring Authority was dated 29.8.1999, the certified copy of the remand extension report had been applied for only

subsequently on 30.8.1999 and furnished on 31.8.1999. It was therefore contended that there was no material for the Detaining Authority to arrive

at the subjective satisfaction and reliance was placed on the order in Alagar''s case. E. PADMANABHAN, J., relied on the circumstance of the

availability of the special report by the Sponsoring Authority in the booklet which was also supplied to the detenu and held that it was a valid and

sufficient material for the Detaining Authority to arrive at the subjective satisfaction of the detenu being on remand.

In Chinna Ponnu vs. Secretary, Prohibition and Excise Department, Government of Tamil Nadu 2000 (2) MWN (Cri) 52 R. JAYASIMHA

BABU, J., speaking for the Bench held as follows:-

In this case, the detaining authority made his order by taking note of the fact that the detenu was on remand. That fact he gathered from a

perusal of the special report prepared by the sponsoring authority. It cannot of course be said that the detaining authority was in error in doing so,

it was open to him to act on such a report which he considered as reliable

In Smt. Hawabi Sayed Arif Sayed Hanif Vs. L. Hmingliana and others, : before the Detaining Authority, only a remand application with an

endorsement at its bottom to the effect that the accused were remanded in judicial custody, was furnished. The Supreme Court held that though the

full text was not placed before the Detaining Authority, the substance has been placed before him and thereby neither the subjective satisfaction of

the Detaining Authority nor the detenu''s right to make the representation had been affected.

In Vadivel vs. State of Tamil Nadu 2000 (1) LW (Cri) 443) the petitioner contended that the remand order was not placed before the

Detaining Authority. It was held that the facts clearly revealed that there were materials before the Detaining Authority to show that on the date

when he passed the order of detention, the detenu was on remand. The Detaining Authority has to be only satisfied of that fact. He has arrived at

the subjective satisfaction and formed an opinion about the detenu being remanded on the basis of the particulars furnished by him. The particulars

furnished by the Sponsoring Authority are sufficient and enough from which the Detaining Authority can gather necessary information and be aware

that the detenu was on remand on the date of passing of the order. It was further held that it was not necessary that the Detaining Authority should

insist upon the remand order nor can it be stated that only on the basis of the remand order, necessary information can be gathered by the

Detaining Authority.

In Abdul Razak Abdul Wahab Sheikh vs. S.N. Sinha, Commissioner of Police, Ahamedabad 1989 SCC (Cri) 326 the Supreme Court held

that what was necessary is that ""there must be awareness in the mind of the Detaining Authority, that the detenu is in custody at the time of service

of the detention order on him"" and other materials to justify the order of detention.

Therefore, we are of the considered view that there is no need for any additional affidavit or a covering letter by the Sponsoring Authority to

place any material before the Detaining Authority before he passes the detention order. As long as the materials are shown to be available with the

Detaining Authority before he passes the order and copies of the relied upon documents are also furnished to the detenu for making a proper

representation, there can be no prejudice to the detenu. What is relevant is to show that all the materials which formed the basis for the subjective

satisfaction of the Detaining Authority were available before him while passing the order and copies of such materials are also furnished to the

detenu.

Therefore we are unable to sustain any of the points raised by the petitioner and the HCP stands dismissed.