Habeas Corpus Petition No. 1742 of 2008. Case: Vimala @ Shilpa Vs State rep. by Secretary to Government, Home, Prohibition and Excise Dept. and The Commissioner of Police. High Court of Madras (India)

Case NumberHabeas Corpus Petition No. 1742 of 2008
CounselFor Appellant: S. Swamidoss Manokaran, Adv. and For Respondents: N.R. Elango, Addl. P.P.
JudgesElipe Dharma Rao and R. Subbiah, JJ.
IssueTamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982; Constitution of India - Article 22(5)
Judgement DateJanuary 21, 2009
CourtHigh Court of Madras (India)

Judgment:

R. Subbiah, J.

  1. The petitioner herein challenges the impugned order of detention dated 03.10.2008 detaining her as an 'Immoral Traffic Offender' as contemplated under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982.

  2. Learned Counsel for the petitioner submitted that the detention order dated 03.10.2008 is liable to be set aside on the following grounds:

    (1) In the order of detention, the name of the husband of the detenue was mentioned as 'Adhisesh', but in the adverse case relied upon by the detaining authority, the name of the husband of the detenue was mentioned as 'Prasad'. Even in the confession statement the detenue has mentioned that she is the wife of ''Prasad''. This vital contradiction, with regard to the mentioning of the name of the husband of the petitioner, was not considered by the detaining authority. This non consideration of vital contradiction by the detaining authority would go to show that the detention order has been passed without application of mind by the detaining authority in passing the order.

    (2) The Tamil version of the documents in page Nos. 41, 77, 113, 114, 115, 146, 151, 163 to 173, 176, 177, 178, 179, 191 and 192 in the booklet served on the detenue are not legible and readable. Though a request was made in the representation dated 25.10.2008 to furnish a legible copy of the said documents, to enable the detenue to compare the same with the copy or booklet furnished to her in her mother tongue, namely, Kannada, the said request was not acceded to by the detaining authority. Therefore, on this account also, a great prejudice has been caused to the detenue, in violation of Article 22(5) of the Constitution of India.

    (3) Several documents furnished in the Tamil booklet at page Nos. 35, 36, 39 to 40, 43, 47, 51, 55, 59, 63 t0 66, 71, 73 and 137 have been furnished once again in page Nos. 37, 38, 41, 42, 45, 49, 53, 57, 61, 67 to 70, 79, 81 and 139 of the same booklet. This repetition of documents found in the Tamil version was carried on to the Kannada version also. This aspect of repetition of the same documents found in the booklet furnished to the detenue both in Tamil and Kannada would go to show that the detaining authority had passed the order of detention without properly perusing the documents. Hence, the order of detention is liable to be set aside on the ground of non-application of mind by the detaining authority.

    (4) The copies of certain vital documents and legible copies for the illegible documents found in certain pages of the booklet were not furnished to the detenue in spite of a request made by her through a representation. Hence, the non-supply of those documents to the detenue is fatal to the detention. In this regard, the learned Counsel for the petitioner placed reliance on the judgment reported in P. Muthuswamy v. State rep. by the Secretary to Government etc. and Anr. 2000-1 L.W.(Crl.) 27.

    (5) Though it has been stated in the grounds of detention that the adverse case in C.C. No. 8372 of 2004 is pending for trial, no material has been placed before the detaining authority to show that the said case is pending. Hence, no proper subjective satisfaction was arrived at by the detaining authority while passing the order.

    (6) The adverse case was registered in the year 2004 as against the detenue under Crime Nos. 43 to 50 of 2004 for indulging in prostitution. But, the ground case was registered in 2008 for running a brothel house by keeping the girls in cars and calling the public to indulge in prostitution. The offence under the adverse case and in the ground case is totally unconnected. Under such circumstances, the conclusion of the detaining authority that the detenue is 'habitually' committing the offence under the Immoral Traffic (Prevention) Act is without any material. Since expression ''habitually'' committing the offence of illegal traffic is a vital factor to pass a detention order, the order in question is liable to be set aside on the ground that the factor of committing the offences 'habitually'' is missing.

    (7) The statements of the victim girls, numbering 10, were stated to be translated into Tamil from Hindi from the time of arrest of the detenue on 15.09.2008 at 18.15 Hours to 19.00 Hours. The translation of the voluntary statements of the 10 victim girls within a short period of time is highly doubtful. Moreover, all the statements are identical in nature. This fact was not...

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