Umarani v. The Additional Chief Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.NO.84 OF 2023 Umarani .. Petitioner Vs.
1.The Additional Chief Secretary to the Government Home, Prohibition and Excise (XVI) Department Secretariat, Chennai - 600 009.
2.The District Magistrate and District Collector Tiruvallur District.
Tiruvallur.
3.The Superintendent of Police Thiruvallur District.
Tiruvallur.
4.The Superintendent of Prison Central Prison, Puzhal, Chennai - 600 066.
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5.The Inspector of Police Kanagammachathiram Police Station Thiruvallur District.
.. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ order or direction in the nature of WRIT OF HABEAS CORPUS, to call for the records in connection with the Detention Order passed by the 2nd respondent dated 29.10.2022 in No.49/BCDFGISSSV/2022 against the petitioner's husband Sureshpandian @ Suresh, M/A.38, S/o. Selvam, who is confined at Central Prison, Puzhal, Chennai and to set aside the same and consequently direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner :
Mr.A.Anandharaj For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] When the matter came up for admission on 23.01.2023, this Bench made an order and a scanned reproduction of the same is as follows: 2/10
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2.There is no adverse case. This solitary case which is the sole substratum of the impugned detention order is Crime No.235 of 2022 on the file of Kanakamachattram Police Station for alleged offences under Sections 8(c), 20(b)(ii)(C) and 29(1) of 'the Narcotic Drugs and Psychotropic Substances Act, 1985' [hereinafter 'NDPS Act' for the sake of convenience and clarity] and Section 328 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 detention order, it is not necessary to delve into the factual matrix or be detained further by facts. 3.Mr.A.Anandharaj, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
4.Though in the admission board, the point that similar case bail order that has been relied on was not properly translated was raised, in the hearing today, learned counsel for petitioner submits that 'live and proximate link' between the grounds of detention and purpose of detention has snapped 5/10
as date of arrest in the ground case is 14.09.2022 but the impugned detention order has been made only on 29.10.2022.
5.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.
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 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 6/10
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.
7.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 HCP cases.
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8.Learned Public Prosecutor submits that the ground case being C.C.No.53 of 2023 on the file of I Additional Special Court under NDPS Act, Chennai, pertains to commercial quantity of Ganja, charge sheet has been filed within time and the case is proceeding in the Trial Court. If the detenu seeks bail in the trial Court, we make it clear that the learned Trial Court Judge shall deal with the same on its own merits and in accordance with law uninfluenced by this order as this order is only pertaining to a HCP legal drill for testing the impugned preventive detention order, which turns on public order whereas the legal drill in the Trial Court is one that turns on law and order. It is in this context that we deem it appropriate to make this clarification though it is obvious.
9.Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. 10.Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 29.10.2022 bearing reference BCDFGISSSV No.49/2022 made by the second respondent is set aside and the detenu Thiru Sureshpandian @ Suresh, aged 38 years, son of Thiru. Selvam, is directed to 8/10
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.) 16.06.2023 (3/3) Index : Yes Speaking TK P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
To 1.The Additional Chief Secretary to the Government Home, Prohibition and Excise (XVI) Department Secretariat, Chennai - 600 009.
2.The District Magistrate and District Collector Tiruvallur District, Tiruvallur.
3.The Superintendent of Police Thiruvallur District, Tiruvallur.
4.The Superintendent of Prison Central Prison, Puzhal, Chennai - 600 066.
5.The Inspector of Police Kanagammachathiram Police Station, Thiruvallur District. 6.The Public Prosecutor, High Court of Madras. 9/10
M.SUNDAR, J.
AND R.SAKTHIVEL, J.
TK H.C.P.NO.84 OF 2023 16.06.2023 (3/3) 10/10