Sivamala @ Kariyan v. The Secretary To The Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Sivamalla @ Kariyan .. Petitioner Vs 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9.
2.District Collector and District Magistrate of Krishnagiri District, Krishnagiri.
3.The Superintendent of Police, Krishnagiri District, Krishnagiri.
4.The Superintendent of Prison, Central Prison, Salem.
5.The Inspector of Police, Thally Police Station, Krishnagiri District.
.. 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 in connection with the order of detention passed by the second respondent dated 24.09.2022 in S.C.No.36/2022 petitioner/detenu Sivamalla @ Kariyan, male, aged 27 years, S/o.Madhaiyan, who is Page Nos.1/9
confined at Central Prison, Salem and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.
For Petitioner :
Mr.D.Balaji For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor assisted by Mr.M.Sylvester John
ORDER
[Order of the Court was made by M.SUNDAR, J.,] This order will now dispose of captioned 'Habeas Corpus Petition' ('HCP' for the sake of brevity).
2.
When the captioned HCP was listed in the Admission Board, this Court vide order dated 20.01.2023 admitted the captioned HCP and issued Rule nisi. A scanned reproduction of the order dated 20.01.2023 is as follows:
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3.
The aforementioned proceedings made at the time of admission captures the factual matrix in a nut shell and therefore the aforementioned proceedings shall be read as an integral part and parcel of this order. To be noted the 'detention order dated 24.09.2022 bearing reference S.C.No.36/2022' made by the detaining authority shall be referred to as 'impugned detention order' for the sake of convenience and clarity.
4. Though in the Admission Board the point that no bail application qua ground case has been filed on behalf of the detenu was raised, in the hearing today, Mr.D.Balaji, learned counsel for petitioner submitted that the 'live and proximate link' between the grounds of detention and purpose of detention has snapped. In support of his contention, learned counsel pointed out that the date of arrest in the ground case is 04.08.2022 but the impugned detention order has been made only on 24.09.2022.
5. Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, submits to the contrary by saying that materials had to be collected Page Nos.5/9
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 State Additional Public Prosecutor is unacceptable.
6. 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 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 the other facet is 'unexplained delay'. We find that the captioned matter falls under latter facet i.e., unexplained delay. Page Nos.6/9
7. 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.
8. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
9. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 24.09.2022 bearing reference S.C.No.36/2022 made by the second respondent is set aside and the detenu Thiru.Sivamalla @ Kariyan, male, aged 27 years, son of Thiru.Madhaiyan is directed to be set at liberty forthwith, if not Page Nos.7/9
required in connection with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (M.N.K.,J.) 17.04.2023 Index : Yes mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Salem.
To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9.
2.District Collector and District Magistrate of Krishnagiri District, Krishnagiri.
3.The Superintendent of Police, Krishnagiri District, Krishnagiri.
4.The Superintendent of Prison, Central Prison, Salem.
5.The Inspector of Police, Thally Police Station, Krishnagiri District.
6.The Public Prosecutor, High Court, Madras.
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M.SUNDAR, J., and M.NIRMAL KUMAR, J., mmi 17.04.2023 Page Nos.9/9