M.Suresh v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.07.2015
CORAM
THE HONOURABLE DR.JUSTICE S.TAMILVANAN and THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.765/2015 M.Suresh ... Petitioner Vs 1.The Secretary to Government, Home, Prohibition & Excise Department Fort St.George, Chennai 600 009.
2.The District Magistrate cum District Collector O/o. District Collector, Krishnagiri, Krishnagiri District.
... Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus to call for the entire records in connection with the order of detention passed by the second respondent dated 11.03.2015 in S.C.No.11 of 2015 against the petitioner's father by name Moorthy Son of Ellappa, Hindu, aged about 48 years, now confined at Central Prison, Salem and to set aside the same and to direct the respondents to produce the above said detenu before this Court and to set him at liberty.
For Petitioner :
M/s.G.M.Anantha Kumar For Respondents :
Mr.M.Maharaja, APP
O R D E R
[Order of the Court was made by S.TAMILVANAN, J] Challenge is made to the order of detention passed by the 2nd respondent vide Proceedings in S.C.No.11 of 2015 dated 11.03.2015, whereby the father of the petitioner by name Moorthy, S/o.Ellappa, aged about 48 years, was ordered to be detained under the provisions of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "Sand Offender".
2.Though many grounds have been raised in the petition, Mr.G.M.Ananthakumar, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.
3.According to the learned counsel appearing for the petitioner, the petitioner is in remand in the ground case in Crime No.166 of 2015 registered by Sipcot Police Station and the bail application filed by him in the said case before the learned Judicial Magistrate II, Hosur in Crl.MP.No.1065/2015 and the same was dismissed and no further bail has been filed by the petitioner. Further, the Detaining Authority has relied on a similar case to arrive subjective satisfaction that the detenu would be granted on bail in the Ground Case.
However, the arrest intimation of the accused Venkatesh (in similar case) has been intimated through Cell Phone to one Savithri, wife of the accused Venkatesh and further stated in the Arrest Memo at page 26 of the Booklet furnished to the wife of the accused Venkatesh, that the arrest in respect of the above case over phone and an endorsement by the authorities has been made to that effect ; but the detaining authority has not furnished any materials to substantiate the fact of serving the Arrest Memo on the said Savithri or any other relatives of the detenu by Thapal or Registered Post. Therefore, it is stated that the detenu was deprived of making an effective representation in the absence of furnishing of full particulars by the Detaining Authority.
Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind. In support of his contention, the learned counsel for the petitioner relied on the judgment reported in 2008 [3] MLJ [Crl.] 744 [AKILANDESWARI Vs. STATE REP.BY SECRETARY TO GOVERNMENT, HOME, PROHIBITION AND EXCISE DEPARTMENT, CHENNAI-9 AND ANOTHER].
4.Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.
5.We have heard the learned counsel for both sides with regard to the facts and citation.
6.It is a case, among other grounds, where the learned counsel for the petitioner would urge that the arrest of the detenu in the ground case has not been intimated to the family members or the relatives or to the known persons of the detenu as per the procedure laid down. As evidenced from the document in page 26 of the Booklet furnished to us, a mere endorsement is made by the authorities to the effect that the arrest intimation has been informed to the wife of
the accused Venkatesh over cell phone; but no materials have been furnished to substantiate that the said intimation was sent through a Thapal or Registered post or as per the procedure laid down. Therefore, non-furnishing of details given to the relatives of the detenu would amount to deprivation of the right of the detenu to make an effective representation and the same would vitiate the order of detention and the same cannot be sustained in the eye of law.
7. At this juncture, it is relevant to refer the judgment of this Court reported in 2008 [3] MLJ [Crl.] 744 [CITED SUPRA], the Division bench of this Court has held as follows:- "5.Though the learned Additional Public Prosecutor has made an attempt to justify by stating that the family members were intimated through telegrams, he has not any placed any material to satisfy this Court as to whether any telegram was sent and the same was acknowledged either by the family members or relatives of the detenu. A right of intimation to the relatives or family members of the detenu encompasses itself the fundamental right guaranteed under Article 22[5] of the Constitution of India to make a representation to the detaining authority or the State Government, as the case may be.
In the event the arrest is not intimated, the detenu would not be in a position to make any such representation and in that context, failure on the part of the detaining authority would amount to deprivation of the right of the detenu to make an effective representation guaranteed under Article 22[5] of the Constitution of India. On the facts of this case, a specific averment has been made that the intimation was not given. We also find that the said averment has not been controverted in the counter affidavit. Though the learned Additional Public Prosecutor submitted that the family members of the detenu were informed of the arrest through telegram, there are no materials placed before us to substantiate the said contention. Further, the copy of the telegram has also not been furnished to the detenu.
In the absence of the same, we are unable to accept the contention of the learned Additional Public Prosecutor that the family members or the relatives of the detenu were informed of the arrest. Under these circumstances the detention order is vitiated."
8.It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal.
9.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above sole ground.
10. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order passed by the 2nd respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar True Copy Sub Assistant Registrar kal To 1.The Secretary to Government, Home, Prohibition & Excise Department Fort St.George, Chennai 600 009.
2.The District Magistrate cum District Collector O/o. District Collector, Krishnagiri, Krishnagiri District.
3.The Superintendent of Prison, Salem.
4.The Joint Secretary to Government Public (Law & Order) Fort St.George,Chennai-9 5.The Public Prosecutor, High Court, Madras.
H.C.P.No.765/2015 KSJ(CO) PMK.14.8.2015