Thiru. Arun v. State Of Tamilnadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Arun .. Petitioner Vs 1.State of Tamil Nadu Represented by its Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.
2.The Commissioner of Police, Avadi City, Office of the Commissioner of Police (Goondas Section), Avadi, Chennai 600 054.
3.The Superintendent, Central Prison, Puzhal, Chennai.
4.The Inspector of Police, T-7, Tank Factory Police Station, Avadi, Chennai - 600 062.
.. 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 on the file of the 2nd respondent in Order No. 103/BCDFGISSSV/2022 Page Nos.1/9
dated 23.08.2022 quash the same and direct the respondents to produce the person or body of the detenu Thiru. Arun, aged 25 years, S/o.Gowtham, before this Court and set him at liberty who is now detained in Central Prison, Puzhal, Chennai.
For Petitioner :
Mr.M.Jaisingh For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor assisted by Mr.M.Sylvester John
ORDER
[Order of the Court was made by M.NIRMAL KUMAR, J.] Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and brevity] has been filed by the detenu assailing a 'preventive detention order dated 23.08.2022 bearing reference No.103/BCDFGISSSV/2022' [hereinafter 'impugned detention order' for the sake of convenience]. To be noted, the fifth respondent is the sponsoring authority and the second respondent is the detaining authority as impugned detention order has been made by the second respondent.
2.Impugned detention order has been made under 'The Tamil Page Nos.2/9
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] on the premise that the detenu is a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3. There are two adverse cases. The ground case which is the sole substratum of the impugned detention order is Crime No.368 of 2022 on the file of T-7 Tank Factory Police Station for alleged offences under Sections 294(b), 341, 323, 336, 427, 397, 506(ii) 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.
4. Mr.M.Jaisingh, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned Additional Public Prosecutor assisted by Mr.M.Sylvester John learned counsel for respondents are before us. Page Nos.3/9
5. Learned counsel for petitioner predicated his campaign against the impugned detention order on one short point and that is, in the Arrest memo it is recorded that the arrest of the detenu was informed to his father one Gowtham through his mobile bearing No.9176221837 by way of SMS. He further submitted that this would not be a communication of arrest, more so, there is no statement recorded from the said Gowtham to confirm as to whether he received the arrest intimation, thereby hampered the right of the detenu to make an effective representation.
6. The learned Additional Public Prosecutor submitted that the petitioner has not made any such representation now putforth before this Court. Hence, the above contention may not be considered.
7. The Hon'ble Division Bench of this Court in the case of "Akilandeswari Vs. State, rep. by Secretary to Government, Home, Prohibition and Excise Department, Chennai-600009, reported in 2008 (3) MLJ (Crl.) 744", held as follows: "5. Though the learned Additional Public Prosecutor has made an attempt to justify by stating Page Nos.4/9
that the family members were intimated through telegrams, he has not 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 Page Nos.
that the family members or the relatives of the detenu were informed of the arrest. Under these circumstances, the detention order is vitiated."
8. Following Akilandeswari Case (cited supra), this Court in the case of "Ganesh @ Lingesan Vs. State of Tamil Nadu and another reported in 2012 (3) MWN (Cr.) 315 DB", in paragraph No.10, held as follows:
"10. "No man shall be deprived of his life and liberty except by procedure established by law" has been guaranteed in Article 21 of the Constitution of India. His right to be informed of the arrest is his basic human right. Curtailment of his personal freedom in pursuance of a preventive detention law though has the constitutional sanction (see Article 22(3)(b) of the Constitution of India), it is conditioned by many constraints, one of which is a chance for him to make representation as against his detention. (see Article 22(5) of the Constitution of India). If his arrest is not informed to his dear and near ones, who could make representation as against the detention order on his behalf, he cannot exercise the right given to him under Article 22(5) of the Constitution of India. In this constitutional perspective, the argument of the Respondent that by nonsupply of a copy of the telegram informing his arrest no prejudice is caused to the detenu is too big a pill to gulp." Page Nos.6/9
9. In this case, the arrest intimation is through Short Message Service (SMS). The reason given is not acceptable, proper intimation has to be given to the detenu and the detenu must know the reason for his arrest. Further, right of the detenu to make an effective representation qua the preventive detention order is a constitutional safeguard ingrained in Clause (5) of Article 22 of the Constitution of India. In the light of the narrative thus far, this constitutional safeguard is hampered. The sequitur is, the impugned preventive detention order deserves to be dislodged.
10. We are also informed without any disputation by both sides that co-accused in the ground case was also clamped with an identical preventive detention order, co-accused assailed the same vide H.C.P.No.1976 of 2022 and this HCP was allowed in and by an order dated 30.03.2023 by this Bench on the same point, reported vide
11. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 23.08.2022 bearing reference No.103/BCDFGISSSV/2022 made by the second respondent is set Page Nos.7/9
aside and the detenu Thiru.Arun, aged about 25 years, son of Thiru.Gowtham, 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.) (M.N.K.,J.) 25.04.2023 Index : Yes / No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai. To 1.The Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.
2.The Commissioner of Police, Avadi City, Office of the Commissioner of Police (Goondas Section), Avadi, Chennai 600 054.
3.The Superintendent, Central Prison, Puzhal, Chennai.
4.The Inspector of Police, T-7, Tank Factory Police Station, Avadi, Chennai - 600 062.
5.The Public Prosecutor, High Court, Madras.
Page Nos.8/9
M.SUNDAR, J., and M.NIRMAL KUMAR , J., mmi 25.04.2023 Page Nos.9/9