Selvi v. The Additional Secretary
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.No.119 of 2023 Selvi Wife of Charles .. Petitioner/ Mother of the detenu Vs.
1.
State of Tamil Nadu Rep. by the Additional Secretary, Home Prohibition and Excise Department Fort St. George, Chennai - 600 009 2.
The Commissioner of Police Greater Chennai Vepery, Chennai - 600 007 3.
The Inspector of Police K-2, Ayanavaram Police Station Chennai 4.
The Superintendent of Prison Central Prison - II Puzhal, Chennai - 600 066 ..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 records relating to the detention order passed in Memo No.457/BCDFGISSSV/2022 dated 12.12.2022 by the 2nd respondent under the Tamilnadu Act 14 of 1982 and set aside the same and direct the respondent to produce the petitioner's son Thiru.Agastin @ Gandu, son of Charles, aged about 27 years, the detenu now confined in Central Prison, Puzhal, Chennai and set him at liberty. For Petitioner :
Mr.R.Muthukumar 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 captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] was listed in the Admission Board on 27.01.2023, this Court made the following order: ' Captioned Habeas Corpus Petition has been filed in this Court on 19.01.2023 inter alia assailing a detention order dated 12.12.2022 bearing reference No.457/BCDFGISSSV/2022 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, third respondent is the Sponsoring Authority.
2. Mother of the detenu is the petitioner.
3. Mr.R.Muthukumar learned counsel on record for habeas corpus petitioner is before us. Learned counsel for petitioner submits Page Nos.2/8
that ground case qua the detenu is for alleged offences under Sections 147, 148, 302 of IPC in Crime No.413 of 2022 on the file of K-2 Ayanavaram Police Station.
4. The aforementioned detention order has been made on the premise that the detenu is a 'Goonda' under Section 2(f) of '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].
5. The detention order has been assailed inter alia on the ground that the booklet given by the Detaining Authority at Page No.266 shows Section 161(3) Cr.P.C statement of one Praveen but the said person is not known to the detenu and his family and no relevant document was furnished to the detenu.
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
7. Mr.R.Muniyapparaj, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly. '
2. The aforementioned order made in the 27.01.2023 Admission listing shall be read as an integral part and parcel of this order which means that the short forms, short references and abbreviations used in the order in the Admission listing shall be used in the instant order also. Page Nos.3/8
3. There is no adverse case. This solitary case which is the sole substratum of the impugned preventive detention order is Crime No.413 of 2022 on the file of K-2 Ayanavaram Police Station for alleged offences under Sections 147, 148 and 302 of IPC. 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. Mr.R.Muthukumar, 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 the date of remand in the ground case is 04.11.2022 but the impugned detention order has been made only on 12.12.2022.
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 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. Page Nos.4/8
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 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 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 Page Nos.5/8
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.
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 12.12.2022 bearing reference No.457/BCDFGISSSV/2022 made by the second respondent is set aside and the detenu Thiru.Agastin @ Gandu, aged 27 years, son of Thiru.Charles, 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.) 30.06.2023 Index : Yes Speaking order gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal Page Nos.6/8
To 1.
The Additional Secretary, Home Prohibition and Excise Department Fort St. George, Chennai - 600 009 2.
The Commissioner of Police Greater Chennai Vepery, Chennai - 600 007 3.
The Inspector of Police K-2, Ayanavaram Police Station Chennai 4.
The Superintendent of Prison Central Prison - II Puzhal, Chennai - 600 066 5.
The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and R.SAKTHIVEL, J., gpa H.C.P.No.119 of 2023 30.06.2023 Page Nos.8/8