Pandiyammal v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.08.2021 Coram The Honourable Mr. Justice P.N.PRAKASH and The Honourable Ms. Justice R.N.MANJULA H.C.P.No.450 of 2021 Pandiyammal ... Petitioner/Sister of the Detenue Vs.

1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The District Magistrate and District Collector, 3.The Superintendent of Police, 4.The Superintendent of Prison, Central Prison-II, Puzhal, Chennai - 66.

5.The Inspector of Police, Arambakkam Circle, Tiruvallur District.

... Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the records in connection with the order of detention passed by the second respondent dated 11.02.2021 in B.C.D.F.G.I.S.S.S.V.No.08/2021 against the petitioner's brother Pandiyan, aged about 30 years, son of Rajendiran, who is confined in the Central Prison - II, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner : Mr.S.Senthil Vel For Respondents : Mr.R.Muniyapparaj, Govt.Advocate (Crl.Side)

ORDER

[Order of the Court was made by P.N.PRAKASH, J.] The petitioner is the sister of the detenu Pandiyan, aged about 30 years, son of Rajendiran. The detenu has been detained by the second respondent by his order in B.C.D.F.G.I.S.S.S.V.No.08/2021 dated 11.02.2021, holding him to be a "Drug Offender", as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

2. We have heard the learned counsel appearing for the petitioner and the learned Government Advocate (Crl.Side) appearing for the respondents. We have also perused the records produced by the Detaining Authority.

3.

Though many grounds have been raised in the petition, 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. According to the learned counsel appearing for the petitioner, the sponsoring authority has stated in the Arrest Memo at page No.22 of the Booklet furnished to the detenu, that the arrest of the detenu has been intimated to the mother of the detenu. However, there is no material to substantiate the service of arrest intimation stated to have been made to the mother of the detenu. 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. 4.

Per contra, the learned Government Advocate (Crl.Side) would submit that the arrest of the detenu has been intimated to the mother of the detenu through SMS. He strongly opposed the habeas corpus petition by filing his counter. 5.

However we find that there are no material particulars to substantiate the same. This Court has also taken the similar view in such cases that the detention order cannot be sustained.

6.

As evidenced from the document in page No.22 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 mother of the detenu through SMS, but, no materials have been furnished to substantiate that the said intimation was sent through 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.

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. The impugned detention order is therefore liable to be quashed.

In the result, the Habeas Corpus Petition is allowed and the order of detention in B.C.D.F.G.I.S.S.S.V.No.08/2021 dated 11.02.2021, passed by the second respondent is set aside. The detenu, viz.,Pandiyan, aged about 30 years, son of Rajendiran, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar nsd To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

2.The District Magistrate and District Collector,

3.The Superintendent of Police, 4.The Superintendent of Prison, Central Prison-II, Puzhal, Chennai - 66.

5.The Inspector of Police, Arambakkam Circle, Tiruvallur District.

6.The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.

7.The Public Prosecutor, High Court, Madras.

H.C.P.No.450 of 2021 sj[co] srg 18/08/2021