S.Rajakumari v. The Secretary To Government ( Home)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL S.Rajakumari W/o.Selvaraj .. Petitioner/Wife of Detenu Vs.
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Office of the District Collector, Chengalpet, Chengalpet District.
3.The Superintendent of Police, Chengalpet District, Chengalpet.
4.The Superintendent, Puzhal Central Prison, Chennai.
5.The Inspector of Police, All Woman Police Station, Chengalpet Town & District.
.. 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 set aside the order passed in CTP No.07/2023 dated 18.01.2023 by the 2nd respondent against the detenue E.Selvaraj, son of Ekambaram aged 22 years, presently confined at Central Prison-II, Puzhal, Chennai and direct the respondents to produce the detenu before this Court and set him at liberty.
For Petitioner : Mr.G.Babu Ganesh For Respondents : Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[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 the detenu assailing a 'preventive detention order dated 18.01.2023 bearing reference CPT No.07/2023' [hereinafter 'impugned preventive detention order' for the sake of convenience and brevity]. To be noted, fifth respondent is the sponsoring authority and second respondent is the detaining authority as impugned preventive detention order has been made by second respondent.
2. Impugned preventive 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 Page Nos.2/8
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 'Sexual Offender' within the meaning of Section 2(ggg) of Act 14 of 1982.
3. There is no adverse case. The ground case which is the sole substratum of the impugned preventive detention order is Crime No.10 of 2022 on the file of All Woman Police Station, Chengalpattu for alleged offences under Sections 450, 376(1), 354(B), 307 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and Section 5(i), 5(r) r/w 6 of 'Protection of Child from Sexual Offences Act, 2012' [hereinafter 'POCSO Act' for the sake of brevity]. 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.G.Babu Ganesh, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
Page Nos.3/8
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 27.11.2022 but the impugned detention order has been made only on 18.01.2023.
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 Page Nos.4/8
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 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.
To be noted, the sole substratum of the impugned preventive detention order is a solitary case viz., Crime No.10 of 2022 on the file of All Page Nos.5/8
Woman Police Station, Chengalpattu for alleged offences inter-alia under Sections 450, 376(1), 354(B), 307 of IPC and Section 5(i), 5(r) r/w 6 of POCSO Act, 2012.
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 18.01.2023 bearing reference CPT No.07/2023 made by the second respondent is set aside and the detenu Thiru.Selvaraj, aged 22 years, son of Thiru.Ekambaram, 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.) 24.07.2023 Index : Yes Speaking order rsi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
Page Nos.6/8
To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Office of the District Collector, Chengalpet, Chengalpet District.
3.The Superintendent of Police, Chengalpet District, Chengalpet.
4.The Superintendent, Puzhal Central Prison, Chennai.
5.The Inspector of Police, All Woman Police Station, Chengalpet Town & District.
6.The Public Prosecutor Madras High Court, Chennai Page Nos.7/8
M.SUNDAR, J.
and R.SAKTHIVEL, J.
rsi 24.07.2023 Page Nos.8/8