K.Kamatchi v. The State Of Tamil Nadu Rep.By
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.61 of 2023 K.Kamatchi W/o.Kumar .. Petitioner Vs.
1.
The State of Tamil Nadu Represented by The Principal Secretary to Government Home, Prohibition and Excise Department Fort St.George Chennai-600 009.
2.
The District Collector and District Magistrate Kancheepuram District Kancheepuram.
3.
The Superintendent Central Prison, Puzhal Chennai-600 066.
4.
The Superintendent of Police Kancheepuram District Kancheepuram.
5.
The Inspector of Police Walajabad Police Station Kancheepuram District.
..Respondents Page Nos.1/8
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the order of detention passed by the 2nd respondent in R.C.No.12837/2022/M6 - D.O.No.44/2022 dated 14.12.2022 and quash the same, consequently, directing the respondents to produce the detenu, namely, the petitioner's son Santhosh, son of Kumar, aged about 24 years, detained in the Central Prison, Puzhal, Chennai before this Hon'ble Court and set him at liberty.
For Petitioner :
Mr.G.Balamanikandan 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 mother of the detenu assailing a 'preventive detention order dated 14.12.2022 bearing reference Rc.No.12837/2022/M6-D.O.No.44/2022' [hereinafter 'impugned preventive detention order' for the sake of convenience and brevity]. To be noted, fifth respondent is the sponsoring authority and second respondent is the detaining authority as the impugned preventive detention order has been made by second respondent. Page Nos.2/8
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 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 is one adverse case and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.366 of 2022 on the file of Walajabad Police Station for alleged offences under Sections 341 and 307 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.
Page Nos.3/8
4. Mr.G.Balamanikandan, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor 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 detention has snapped as date of arrest in the ground case is 30.10.2022 but the impugned preventive detention order has been made only on 14.12.2022.
6. Mr.E.Raj Thilak, learned State Additional Public Prosecutor, submits to the contrary by saying that materials had to be collected and time was consumed in this exercise. Considering the facts / circumstances of the case on hand and nature of ground case, we find that this explanation of learned 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 Page Nos.4/8
Substances Act, 1988' [hereinafter 'PIT NDPS Act' for the sake of brevity] in Tirupura, wherein after considering a proposal by a 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.
8. To be noted, Banik case has been respectfully followed by this Court in Gomathi Vs.The Principal Secretary to Government and others Sadik Basha Yusuf Vs. The State of Tamil Nadu and others reported vide Vs. The Secretary to the Government and others reported vide Neutral Citation of Madras High Court being 2023:MHC:1110, N.Anitha Vs. The Secretary to Government and others reported vide Neutral Citation of Madras High Court being 2023:MHC:1159 and a series of other orders in Page Nos.5/8
HCP cases.
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 14.12.2022 bearing reference Rc.No.12837/2022/M6-D.O.No.44/2022 made by the second respondent is set aside and the detenu Thiru.Santhosh, male, aged 24 years, son of Thiru.Kumar, 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.) (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.
Page Nos.6/8
To 1.
The State of Tamil Nadu Represented by The Principal Secretary to Government Home, Prohibition and Excise Department Fort St.George Chennai-600 009.
2.
The District Collector and District Magistrate Kancheepuram District Kancheepuram.
3.
The Superintendent Central Prison, Puzhal Chennai-600 066.
4.
The Superintendent of Police Kancheepuram District Kancheepuram.
5.
The Inspector of Police Walajabad Police Station Kancheepuram District.
6.
The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and R.SAKTHIVEL, J., mk H.C.P.No.61 of 2023 28.06.2023 Page Nos.8/8