Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.10.2013 CORAM : THE HONOURABLE MR.JUSTICE V.DHANAPALAN and THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM Habeas Corpus Petition (Md.No.869 of 2013 Ahamed Khan ..Petitioner versus 1.State of Tamil Nadu rep by its Secretary, Home, Prohibition and Excise (XVI) Department, Fort St.
George, Chennai-600 009.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Ramanathapuram District.
3.The Superintendent of Prison, Madurai Central Prison, Madurai..Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus, calling for the entire records, connected with the detention order of the respondent No.2 in Cr.M.P.No.19/F.O./2013, dated 30.07.2013 and quash the same and direct the respondents to produce the detenu, by namely Ahamed Khan, son of Naina Mohamed, aged about 49 years detained in Madurai Central Prison, before this court and set him at liberty forthwith and pass further ordeRs.!For Petitioner .Mr.R.Alagumani ^For Respondents.Mr.C.Mayilvahana Rajendran, Additional Public Prosecutor :ORDER
(Order of the Court was made by V.DHANAPALAN,J.) The petitioner is the detenu.
The detenu has been branded as a ".Forest Offender".
as contemplated under Tamil Nadu Act 14 of 1982 and detained under the order of the second respondent passed in Cr.M.P.No.19/F.O./2013, dated 30.07.2013.
2.The detenu came to adveRs.notice in the following case:- S.No.Police Station and Crime Sections of Law No.01.
Ramanathapuram Police Schedule 1 Part IVC Wild Station, Life (Protection) Act WLOR No.4/2010 1972 Amendment Act 2009 Sec.9, 39(1)(a).d(3).50, 51.
3.The ground case alleged against the detenu is one registered by the Inspector of Police, Thiruppalaikudi Police Station, in Crime No.96 of 2013 under section 5(a) of Explosive Substances Act, 1908 and 9, 39 [(1)(a)]., 50, 51 of Wild Life Act, 1972 Amendment Wild Life (Protection) Act, 2002.
Aggrieved by the order of detention, the present petition has been filed.
4.Though the learned counsel appearing for the petitioner has raised several grounds to assail the impugned order of detention, he mainly focused his argument on two grounds.
Firstly, there is no real possibility of the detenu coming out on bail, by filing bail application.
When the petitioner moved the bail application, it was dismissed on 29.07.2013.
In the absence of any material information, it could not be possible for the Detaining Authority to arrive at such a decision, as there is a real possibility.
Secondly, he pointed out that there is a defect in the translation as to the effect that in the Tamil version, English version differs in respect of para 5.
5.We have heard Mr.C.Mayilvahana Rajendran, learned Additional Public Prosecutor on the above points and perused the impugned order along with the material records.
6.The detenu has come before this Court, questioning the order of Detaining Authority, as there is no subjective satisfaction on consideration of material information and the decision arrived at by the Detaining Authority is not to the consideration of the material information.
7.The Detaining Authority has come to the decision stating that ".Thiru.Ahamed Khan, Age 49/13, S/o.Naina Mohamed, East Street, Thiruppalaikudi, Ramanathapuram District, has filed a bail petition in connection with ground case in Cr.No.96/13, u/s.5(a) of Explosive Substances Act 1908 and 9, 39[1(a)].50, 51 of Wild Life Act 1972 Amendment Wild Life (Protection) Act, 2002 of Thiruppalaikudi Police Station as per Cr.M.P.No.1898/13 in the Court of Session Judge, Ramanathapuram and it is dismissed on 29.07.14.
The case is under investigation.
In such cases, after expiry of the bail application there is real possibility of his coming out on bail, by filing further bail application, in the Court concerned or other Higher Courts.
If he is not detained under Tamil Nadu Act 14/1982, he will indulge in such further activities, which will be prejudicial to the maintenance of public order.
Further, the recouRs.to normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order.
On the materials placed before me, I am fully satisfied that the said Thiru.Ahamed Khan, Age 49/13, S/o.Naina Mohamed, East Street, Thiruppalaikudi, Ramanathapuram District is a Forest Offender and there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of public order under the provision 2(ee) of Tamil Nadu Act 14/1982.".
8.On examination of the above points, it is to be seen as to the question that subjective satisfaction arrived at by the Detaining Authority, without material is to be verified with the booklet for any supporting material for the Detaining Authority to arrive at such a conclusion to detain the detenu, as there is no likelihood of moving a bail application and if he coming out on bail, he will indulge in such further activities, which will be prejudicial to the maintenance of public order.
9.On verification of the records, firstly, there is no material available to the Detaining Authority to come to such a conclusion.
In the absence of any material, it is not for the Detaining Authority to arrive at a decision, as there is a real possibility of coming out on bail.
Secondly, as the defect in translation of the impugned order in para 5, it is seen in English version that ".In such cases, after expiry of the bail application, there is real possibility of his coming out on bail by filing further bail application.
".
10.However, in para 5 of the Tamil Version, it is stated as follows:- ".nJ Bghd;w tHf;Ffspy; chpa fhyf;bfhL Kotile;j gpd;dh; rk;ge;jg;gl;l ePjpkd;wj;jpy; my;yJ Bky;epiy ePjpkd;wA;fspy; Bkw;brhd;d tHf;F bjhlh;ghf BkYk; gpiz kD jhf;fy; bra;J gpizapy; btsptu cz;ikahd rhj;jpaf;TW cs;sJ.".
11.On reading of the above, it could be seen that there is a material defect in the translation.
On both the counts viz., the order passed by the District Magistrate without subjective satisfaction and deprivation of proper translation of the order, the impugned order passed by the Detaining Authority is vitiated in law.
12.Hence, the impugned detention order passed by the second respondent, detaining the detenu, namely, Ahamed Khan son of Naina Mohamed, vide Cr.M.P.No.19/F.O/2013, dated 30.07.2013, is quashed and the Habeas Corpus Petition is allowed.
The above named detenu, who is detained in Central Prison, Madurai, is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.
However, it is made clear that the present order shall not give any advantage to the detenu in any of the regular proceedings.
It is open to the prosecution to contest the regular case effectively in accordance with law .
ER To 1.The Secretary to Government, Home, Prohibition & Excise Department, Fort St., George, Chennai - 600 009.
2.The District Collector and District Magistrate, Trichy District, Trichy.