- (1.) HEAD the learned counsel for the petitioner and also the learned Additional Public Prosecutor appearing for the respondents.
(2.) THE order of preventive detention has been challenged by the father of the detenue. THE detenue, a lady has been detained on the allegation that she is a drug offender under Act, 14 of 1982. A habeas corpus petition has been filed on behalf of the detenue on earlier occasion which has been dismissed on merit 18.1.2006. From the judgment in the said case, it is apparent that only two questions were raised before the High Court. In the present habeas corpus petition, a new point has been raised by the petitioner to the effect that eventhough in the grounds of detention, the detaining authority has relied upon the order of remand and the subsequent extension of remand, Tamil version of such orders which are in English had not been furnished to the detenue. It is asserted that the detenue knows only Tamil and she does not know English. In support of his contention the learned counsel for the petitioner relied on the decision reported in Powanammal v. State of Tamil Nadu and Another AIR 1999 SC 618 : (1999) 2 SCC 413 : (1999) I CTC 347, wherein the Honourable Supreme Court has observed as follows: "8. The laws relating the preventive detention has been crystallized and the principles are well neigh settled. The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenue but also to supplying their translation in script or language which is understandable to the detenue. Failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. 9. However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas non-supply of a copy the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenue need not show that any prejudice is caused to him. This is because, non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds reference in the order of detention or amount the grounds thereof. In such a case, the detenue's complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document, would equally apply to furnishing translated copy of the document in the language known to and understood by the detenue, should the document be in a different language. 13. Adverting to the facts of this case, the appellant has made a representation for supply of Tamil version of the copy of order of remand and specifically stated that the detenue could not understand English language. Admittedly, Tamil version of order of remand was not furnished to her. A perusal of the grounds shows that the order of remand was relied upon by the second respondent to reach subjective satisfaction, so the detenue need not show that any prejudice was caused to her due to non-supply of the Tamil version of order of remand. Therefore, the High Court is not correct in holding that non-furnishing of the copy of the order of remand would not in any way prejudice the detenue. 14. For the above reasons, in our view, non-supply of Tamil version of English document, on the facts and in the circumstances, renders her continued detention illegal. We, therefore, direct that the detenue be set free forthwith unless she is required to be detained in any other case. The appeal is accordingly allowed." According to the learned counsel for the petitioner, in view of such decision, since the translated version of the relied upon document had not been furnished, the order of detention is liable to be quashed.
(3.) THE learned counsel for the respondents submitted that the aforesaid Supreme Court decision would not be applicable as the documents in question were merely referred to in the order of detention and it cannot be said that those were relied upon documents. THE learned counsel for the respondents also submitted that since the earlier habeas corpus petition has been dismissed on merit, a subsequent habeas corpus petition is not maintainable. Having heard the learned counsel for both parties and gone through the materials, we are inclined to accept the submission made on behalf of the petitioner. A perusal of the grounds of detention indicates that the two documents in question viz., the remand order and remand extension order formed the basis for the detaining authority to come to a conclusion that the detenue was in custody in connection with the criminal case and that she was likely to be released on bail after filing the bail application. Therefore, it can be said that the documents in question were relied upon documents. Once such conclusion is reached, the ratio of the decision laid down by the Honourable Supreme Court is squarely applicable. Therefore, it is immaterial as to whether any prejudice was caused to the detenue and since the translated version of the relied upon document had not been given, it must be taken that the order of detention was vitiated.;