Sharmil @ Mathumathi v. The State Rep.By Its,
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 Sharmila @ Mathumathi .. Petitioner / Wife of detenu vs 1.The Additional Chief Secretary to Government of Tamil Nadu Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police Greater Chennai Police Office of the Commissioner of Police Vepery, Chennai - 600 007 3.The Superintendent Central Prison Puzhal, Chennai - 600 066 4.The Inspector of Police G-2, Periyamedu Police Station Periyamet, Chennai -12 .. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the entire records 1/9
connected with the detention order passed by the second respondent in Memo No.489/BCDFGISSSV/2023 dated 28.12.2022 and quash the same as illegal and direct the respondents to produce the body or person of my husband namely Mr.Kishorekumar @ Kava Kishorekumar, male, aged 30 years, son of Mr.Aakaasam, reisding at No.10/10, Kuravankulam 3rd street, Choolai, Chennai 12, now confined at Central Prison Puzhal, Chennai before this Court and set him at liberty. For Petitioner :
Mr.N.Kannan For Respondents :
Mr.E.Raj Thilak, Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by wife of detenu assailing a 'preventive detention order dated 28.12.2022 bearing reference BCDFGISSSV No.489/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
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2.
When the captioned HCP was listed for admission before this Court, proceedings/orders dated 15.02.2023 was made in the 'Admission Board' and the same reads as follows: 'Captioned Habeas Corpus Petition has been filed in this Court on 07.02.2023 inter alia assailing a detention order dated 28.12.2022 bearing reference BCDFGISSSV No.489/2022 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fourth respondent is the Sponsoring Authority.
2. Wife of the detenu is the petitioner.
3. Mr.N.Kannan, learned counsel on record for habeas corpus petitioner is before us. Learned counsel expresses regret for not representing the matter yesterday. Learned counsel for petitioner submits that ground case qua the detenu is for alleged offences under Sections 147, 148, 341 and 302 of IPC in Crime No.301 of 2022 on the file of G-2, Periyamedu 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, Drugoffenders, 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 3/9
convenience and clarity].
5. The detention order has been assailed inter alia on the ground that the there is a delay in considering the representation of the petitioner.
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.'
3.
The aforementioned proceedings/orders made in the 'Admission Board' captures short facts essential and imperative for appreciating this order and therefore without setting out the same again, we deem it appropriate to say that aforementioned proceedings shall be read as an integral part and parcel of this order.
4. There is no adverse case. The solitary case which is the sole substratum of the impugned preventive detention order is Crime No.301 of 2022 on the file of G2, Periyamedu Police Station for alleged offences under Section 147, 148, 341 and 302 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 4/9
necessary to delve into the factual matrix or be detained further by facts.
5. Mr.N.Kannan, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
6. Learned counsel for petitioner submits that 'live and proximate link' between the grounds of detention and purpose of detention has snapped as date of remand in the ground case is 04.12.2022 but the impugned detention order has been made only on 28.12.2022.
7. 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.
8. 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 5/9
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.
9. To be noted, Banik case has been respectfully followed by this Court in Gomathi Vs.The Principal Secretary to Government and others reported vide Neutral Citation of Madras High Court being 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil Nadu and others reported vide Neutral Citation of Madras High Court being 2023/MHC/733, Sangeetha 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 6/9
2023:MHC:1159 and a series of other orders in HCP cases.
10. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
11. Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 28.12.2022 bearing reference BCDFGISSSV No.489/2022 made by the second respondent is set aside and the detenu Thiru.Kishorekumar @ Kava Kishorekumar, aged 30 years, son of Thiru.Aakaasam, 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 gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
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To 1.The Additional Chief Secretary to Government of Tamil Nadu Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police Greater Chennai Police Office of the Commissioner of Police Vepery, Chennai - 600 007 3.The Superintendent Central Prison Puzhal, Chennai - 600 066 4.The Inspector of Police G-2, Periyamedu Police Station Periyamet, Chennai -12 5.The Public Prosecutor, High Court, Madras.
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M.SUNDAR, J., and R.SAKTHIVEL , J., gpa 28.06.2023 9/9