B.Gopi v. The Principle Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.No.1 of 2023 B.Gopi S/o.Balu .. Petitioner Vs.
1.
The Principal Secretary to Government Home, Prohibition and Excise Dept., Secretariat Chennai-600 009.
2.
The Commissioner of Police Tambaram City.
3.
The Superintendent of Prison Central Prison, Puzhal Chennai-66.
4.
The Inspector of Police L & O, T-1, Tambaram Nagar Police Station Chennai.
..Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records with the order of detention passed by the second respondent dated 05.12.2022 in Memo No.207/BCDFGISSSV/2022 against the petitioner' son G.Seshan, male, aged Page Nos.1/9
21 years, son of Gopi, who is confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before the Hon'ble Court and set him at liberty. For Petitioner :
Dr.S.Manoharan representing Mr.S.Senthilvel For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by father of the detenu assailing a 'preventive detention order dated 05.12.2022 bearing reference BCDFGISSSV No.207/2022' [hereinafter 'impugned preventive detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as the impugned preventive detention order has been made by second respondent.
2. Impugned preventive detention order has been made under 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Page Nos.2/9
Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] on the premise that the detenu is a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3. There are three adverse cases and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.834 of 2022 on the file of T-1 Tambaram Police Station for an alleged offences under Sections 341, 294(b), 307 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. Owing to the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Dr.S.Manoharan, learned counsel representing the counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5. In the support affidavit, very many points/grounds have been urged/raised but in the hearing, learned counsel for petitioner predicated his Page Nos.3/9
campaign against the impugned preventive detention order on one point and that one point turns on Section 8(1) of Act 14 of 1982, which reads as follows:
'8. Grounds of order of detention to be disclosed to persons affected by the order.- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government. '
6. Adverting to the aforementioned provision of law, learned counsel submitted that the date of impugned preventive detention order is 05.12.2022 and date of formal arrest pursuant to impugned preventive detention order is 06.12.2022 (served on the detenu on the next day i.e., on 06.12.2022) but the 'grounds on which the impugned preventive detention order has been made' was served on the detenu only on 12.12.2022. Learned counsel submits that this is a clear infraction of the statutory requirement qua Section 8(1) of Act 14 of 1982 and such infraction of a statutorily imperative requirement is fatal qua impugned preventive detention order is learned Page Nos.4/9
counsel's further say. We perused the impugned preventive detention order and grounds of detention. A scanned reproduction of the impugned preventive detention order and a page containing date regarding supply of same to detenu are as follows:
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Similarly, a typical page in the grounds of detention containing date regarding date of supply of same to detenu is as follows: Page Nos.6/9
7. We remind ourselves that dealing with infraction of Section 8(1) of Act 14 of 1982, this Bench in the case of M.Shylaja Vs.The Additional Chief Secretary to Government and others reported in 2023/MHC/193 has held that such infraction would lead to dislodgement of impugned preventive detention order.
8.
In the light of narrative, discussion and dispositive reasoning supra, we have no hesitation in saying that the impugned preventive detention order deserves to be dislodged in the case on hand.
9. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
10. Apropos, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 05.12.2022 bearing reference BCDFGISSSV No.207/2022 made by the second respondent is set aside and the detenu Thiru.G.Seshan, male, aged 21 years, son of Thiru.Gopi, is Page Nos.7/9
directed to be set at liberty forthwith, if not required in connection with any other case / cases. There shall be no order as to costs. (M.S.,J.) (R.S.V.,J.) 28.06.2023 Index : Yes Speaking mk P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
To 1.
The Principal Secretary to Government Home, Prohibition and Excise Dept., Secretariat Chennai-600 009.
2.
The Commissioner of Police Tambaram City.
3.
The Superintendent of Prison Central Prison, Puzhal Chennai-66.
4.
The Inspector of Police L & O, T-1, Tambaram Nagar Police Station Chennai.
5.
The Public Prosecutor High Court, Madras.
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M.SUNDAR, J., and R.SAKTHIVEL, J., mk H.C.P.No.1 of 2023 28.06.2023 Page Nos.9/9