A.Mohanraj v. Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.06.2023 Coram THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL A.Mohanraj .. Petitioner vs 1.The State of Tamil Nadu rep. by Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.
2.The District Collector and District Magistrate, Salem District, Salem.
3.The Superintendent of Police, Salem District, Salem.
4.The Inspector of Police, Karipatti Police Station, Salem District.
5.The Superintendent of Prison, Central Prison, Salem.
.. Respondents 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 dated 05.11.2022 passed by the second respondent in his proceeding No.C.M.P. No.28/GOONDA/C2/2022 and to quash the same and direct the respondents herein to produce the petitioner's father-in-law namely Arisiyappan, son of Naina Udayar, male, aged about 55 years, who 1/7
is presently undergoing detention in the Central Prison, Salem as Goonda before this Court and set him at liberty forthwith. For Petitioner :
Mr.N.Umapathi 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 son-in-law of the detenu assailing a 'preventive detention order dated 05.11.2022 bearing reference C.M.P. NO.28/GOONDA/C2/2022' [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.
2. Impugned 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] 2/7
on the premise that the detenu is a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3. There is no adverse case. The ground case which is the sole substratum of the impugned detention order is Crime No.285 of 2022 on the file of Karipatty Police Station for alleged offence under Section 328 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and Sections 7(2) and 20(i) of Cigarette and Other Tobacco Products Act, 2003. 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.
4. Mr.N.Umapathi, 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 remand in the ground case is 07.10.2022 but the impugned detention order has been made only on 05.11.2022.
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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.
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.
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8. To be noted, Banik case has been respectfully followed by this Court in Gomathi Vs.The Principal Secretary to High Court being 2023/MHC/334, Sadik Basha Yusuf Vs. The 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 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 05.11.2022 bearing reference C.M.P.
No.28/GOONDA/C2/2022 made by the second respondent is set aside and the detenu Thiru.Arisiyappan, aged 55 years, son of Thiru.Naina Udayar, is directed to be set at liberty forthwith, if not 5/7
required in connection with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.) 26.06.2023 Index : Yes/No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Salem.
To 1.The State of Tamil Nadu rep. by Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.
2.The District Collector and District Magistrate, Salem District, Salem.
3.The Superintendent of Police, Salem District, Salem.
4.The Inspector of Police, Karipatti Police Station, Salem District.
5.The Superintendent of Prison, Central Prison, Salem.
6.The Public Prosecutor, High Court, Madras.
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M.SUNDAR, J., and R.SAKTHIVEL , J., mmi 26.06.2023 7/7