Kamachi v. The State Of Puducherry
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Kamachi .. Petitioner Vs 1.The Secretary to Government, Home, Prohibition and Excise Department, Pondicherry.
2.The District Magistrate cum Authorized Officer, Pondicherry.
3.The Senior Superintendent of Police (L &O), Pondicherry.
4.The Inspector of Police, D Nagar Police Station, Pondicherry.
5.The Chief Superintendent, Central Prison, Kalapet, Pondicherry.
.. 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 relating to the detention order passed by the second respondent on 20.09.2022 in No.7/DM/RO/D2/PPASAA/2022 and to quash the same Page Nos.1/7
and direct the respondents to produce the body of the detenu Panneer Selvam @ Rajesh, S/o.Ellumalai, aged about 36 years, before this Court and set him at liberty.
For Petitioner :
Mr.C.Iyyapparaj For Respondents :
Mr.K.S.Mohandass, Public Prosecutor (Puducherry)
ORDER
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by wife of the detenu assailing a 'preventive detention order dated 20.09.2022 bearing reference No.7/DM/RO/D2/PPASAA/2022' [hereinafter 'impugned 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 impugned detention order has been made by second respondent.
2. Impugned detention order has been made under 'The Puducherry Prevention of Anti-Social Activities Act, 2008 (Act 10 of 2010)' [hereinafter 'Puducherry Preventive Detention Act' for the sake Page Nos.2/7
of convenience and clarity] on the premise that the detenu is a 'Dangerous Person' within the meaning of Section 2 (c) of Puducherry Preventive Detention Act.
3. There are six adverse cases. The ground case which is the sole substratum of the impugned detention order is Crime No.90 of 2022 on the file of D Nagar Police Station for alleged offences under Sections 302, 201 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] subsequently altered into one under Sections 147, 148, 363, 342, 302, 201 r/w 149 IPC. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.C.Iyyapparaj, learned counsel on record for petitioner and Mr.K.S.Mohandass, learned Public Prosecutor for Union Territory of Puducherry for all respondents are before us.
5. Learned counsel for petitioner submits that 'live and proximate link' between the grounds of detention and purpose of Page Nos.3/7
detention has snapped as date of remand in the ground case is 10.05.2022 but the impugned detention order has been made only on 20.09.2022.
6.
Mr.K.S.Mohandass, learned Public Prosecutor for Union Territory of Puducherry, submits to the contrary by saying that materials had to be collected and time was consumed for the same. Considering the facts and circumstances of the case and nature of ground case, we find that this explanation of learned Public Prosecutor is unacceptable.
7. We remind ourselves of Sushanta Kumar Banik's case [Sushanta Kumar Banik Vs. State of Tripura & others reported in 2022 LiveLaw (SC) 813 : 2022 SCC OnLine SC 1333]. To be noted, Banik case law arose under 'Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988' [hereinafter 'PIT NDPS Act' for the sake of brevity] in Tirupura, wherein after considering the proposal by the Sponsoring Authority and after noticing the trajectory the matter took, Hon'ble Supreme Court held that the 'live and proximate link between grounds of detention and Page Nos.4/7
purpose of detention snapping' point should be examined on a case to case basis. Hon'ble Supreme Court has held in Banik case law that this point has two facets. One facet is 'unreasonable delay' and other facet is 'unexplained delay'. We find that the captioned matter falls under latter facet i.e., unexplained delay.
8. To be noted, Banik case has been respectfully followed by this Court in Gomathi Vs.The Principal Secretary to Government 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil being 2023/MHC/733, Sangeetha Vs. The Secretary to the High Court being 2023:MHC:1110, N.Anitha Vs. The Secretary to High Court being 2023:MHC:1159 and a series of other orders in HCP cases.
9. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. Page Nos.5/7
10. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 20.09.2022 bearing reference No.7/DM/RO/D2/PPASAA/2022 made by the second respondent is set aside and the detenu Thiru.Paneer Selvam @ Rajesh, aged 36 years, son of Thiru.Ezhumalai, is 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.) (M.N.K.,J.) 25.04.2023 Index : Yes / No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Kalapet, Puducherry. To 1.The Secretary to Government, Home, Prohibition and Excise Department, Pondicherry. 2.The District Magistrate cum Authorized Officer, Pondicherry.
3.The Senior Superintendent of Police (L &O), Pondicherry. 4.The Inspector of Police, D Nagar Police Station, Pondicherry.
5.The Chief Superintendent, Central Prison, Kalapet, Pondicherry.
6.The Public Prosecutor, Puducherry.
Page Nos.6/7
M.SUNDAR, J., and M.NIRMAL KUMAR , J., mmi 25.04.2023 Page Nos.7/7