Karthick v. The Secretary To The Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 06.10.2020 Coram The Hon'ble Mr. Justice M.M.SUNDRESH and The Hon'ble Mr. Justice D.KRISHNAKUMAR H.C.P.No.682 of 2020 Karthick

...Petitioner

vs

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

2. The District Collector and District Magistrate, Kanchipuram District.

3. The Superintendent of Police, Kanchipuram District.

4. The Superintendent, Special Prison for Women, Puzhal, Chennai-600 066.

5. State, rep.by Inspector of Police, Vishnu Kanchi Police Station, Kanchipuram District.

...Respondents

Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling for the records in connection with the order of detention passed by the 2nd respondent dated 25.02.2020 in Memo No.B.C.D.F.G.I.S.S.S.V.No.12 of 2020 against mother of the petitioner Bhavani, F/A, 55 years, wife of Kumar, who is confined at Special Prison for Women, Puzhal, Chennai and set aside the same and consequently direct the respondents to produce the detenue before this Court and set her at liberty.

For Petitioner : Mr.A.Saranraj For Respondents :

Mr.R.Prathap Kumar, Addl. Public Prosecutor

ORDER

[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the son of the detenue Bhavani, wife of Kumar, aged about 55 years. The detenue has been detained by the second respondent by his order in Memo No.B.C.D.F.G.I.S.S.S.V.No.12 of 2020 dated 25.02.2020, holding her 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 Additional Public Prosecutor 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.75 of the Booklet furnished to the detenue, that the arrest of the detenue has been intimated to the family member of the detenue. However, there is no material to substantiate the service of arrest intimation stated to have been made to the family member of the detenue. Therefore, it is stated that the detenue 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 Additional Public Prosecutor would submit that the arrest of the detenue has been intimated to the family member of the detenue through SMS. 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.

5.As evidenced from the document in page no. 75 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 family member of the detenue 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 detenue would amount to deprivation of the right of the detenue 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. 6.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.

7.In the result, the Habeas Corpus Petition is allowed and the order of detention Memo No.B.C.D.F.G.I.S.S.S.V.No.12 of 2020 dated 25.02.2020 passed by the second respondent is set aside. The detenue, namely, Bhavani, wife of Kumar, aged about 55 years, is directed to be released forthwith unless her detention is required in connection with any other case. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar To

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

2. The District Collector and District Magistrate, Kanchipuram District.

3. The Superintendent of Police, Kanchipuram District.

4. The Superintendent, Special Prison for Women, Puzhal, Chennai-600 066

5. The Inspector of Police, Vishnu Kanchi Police Station, Kanchipuram District

6. The Public Prosecutor, High Court, Madras.

H.C.P. No.682 of 2020 VSN-II(CO) RV(21/10/2020)