Selvaraj v. Secretary To Government (Home)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.06.2023 Coram THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Selvaraj .. Petitioner vs 1.The Secretary to Government, Home, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai - 9.
2.The Commissioner of Police/Detaining Authority, Office of the Commissioner of Police, Tiruppur City.
3.The Inspector of Police, Thirumuruganpoondi Police Station, Tiruppur District.
4.The Superintendent, Central Prison, Coimbatore.
.. 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 pursuant to the order in C.No.71/D.O./IS/TIRUPPUR CITY/2022 dated 03.11.2022 passed by the second respondent and quash the same consequently produce the detenu Sakthivel, aged about 25 years, S/o.Selvaraj before this Court and set him at liberty, the detenu is now confined in Central Prison, Coimbatore. 1/8
For Petitioner :
Mr.D.Arun 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 father of detenu assailing a 'preventive detention order dated 03.11.2022 bearing reference C.No.71/D.O./IS/TIRUPPUR CITY/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, third respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
2.
When the captioned HCP was listed for admission before this Court, proceedings/orders dated 28.03.2023 was made in the 'Admission Board' and the same reads as follows: 'Captioned Habeas Corpus Petition has been filed in this Court on 15.03.2023 inter alia assailing a detention order dated 03.11.2022 bearing reference C.No.71/D.O./IS/TIRUPPUR CITY/2022 made by 'second respondent' [hereinafter 'Detaining 2/8
Authority' for the sake of convenience and clarity]. To be noted, third respondent is the Sponsoring Authority.
2. Father of the detenu is the petitioner.
3. Learned counsel for petitioner submits that ground case qua the detenu is for alleged offences under Sections 8(c) read with 20(b)(ii)(B) of 'the Narcotic Drugs and Psychotropic Substances Act, 1985' [hereinafter 'NDPS Act' for the sake of convenience and clarity] in Crime No.678 of 2022 on the file of Thirumuruganpoondi Police Station.
4. The aforementioned detention order has been made on the premise that the detenu is a 'Drug Offender' under Section 2(e) of 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sandoffenders, 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].
5. The detention order has been assailed inter alia on the ground that the representation of the detenu was not duly considered by the Detaining Authority.
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
7.
Mr.R.Muniyapparaj, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.'
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3.
The aforementioned proceedings/orders made in the 'Admission Board' captures short facts essential and imperative for appreciating this order and therefore without setting out the same again, we deem it appropriate to say that aforementioned proceedings shall be read as an integral part and parcel of this order.
4. There is one adverse case. The ground case which constitutes substantial part of substratum of the impugned detention order is Crime No.678 of 2022 on the file of Thirumuruganpoondi Police Station for the alleged offences under Section 8(c) r/w 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985. 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.
5. Mr.D.Arun, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
6. Learned counsel for petitioner submits that 'live and 4/8
proximate link' between the grounds of detention and purpose of detention has snapped as date of remand in the ground case is 06.09.2022 but the impugned detention order has been made only on 03.11.2022.
7.
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.
8. 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 5/8
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.
9. 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.
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. 6/8
Impugned detention order dated 03.11.2022 bearing reference C.No.71/D.O./IS/TIRUPPUR CITY/2022 made by the second respondent is set aside and the detenu Thiru.Sakthivel, aged 25 years, son of Thiru.Selvaraj, 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.) 20.06.2023 Index : Yes/No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Coimbatore.
To 1.The Secretary to Government, Home, Prohibition and Excise Department, Government of Tamil Nadu, Fort St. George, Chennai - 9.
2.The Commissioner of Police/Detaining Authority, Office of the Commissioner of Police, Tiruppur City. 3.The Inspector of Police, Thirumuruganpoondi Police Station, Tiruppur District.
4.The Superintendent, Central Prison, Coimbatore.
5.The Public Prosecutor, High Court, Madras.
M.SUNDAR, J., and 7/8
R.SAKTHIVEL , J., mmi 20.06.2023 8/8