M.Mani v. The Secretary To Government,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.04.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.638 of 2024 M.Mani ... Petitioner Vs.

1.The Secretary to Government, Home, Prohibition Excise Department, Fort St.George, Chennai - 600 009.

2.The Commissioner of Police, Greater Chennai.

3.The Superintendent of Police, Central Prison, Puzhal, Chennai.

4.The Inspector of Police, H-6, R.K.Nagar Police Station, Chennai.

... Respondents PRAYER: 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 11.11.2023 in No.578/BCDFGISSSV/2023 against the petitioner Son Thiru.Karthik @

Motta Karthik, Male aged about 24 years son of Mani, who is confined at Central Prison Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before the Hon'ble Court and set him at liberty.

For Petitioner : Mr.M.Illayas For Respondents : Mr.E.Raj Thilak, Additional Public Prosecutor assisted by Mr.C. Aravind

ORDER

M.S.RAMESH, J.

AND SUNDER MOHAN , J.

The petitioner herein who is the father of the detenue namely Karthik @ Motta Karthik, aged about 24 years, S/o.Mani, has come forward with this petition challenging the detention order passed by the second respondent dated 11.11.2023 slapped on his son, branding him as "Goonda" under the Tamil 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 14 of 1982].

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 several grounds are raised in the petition, the learned counsel for the petitioner focused mainly on the ground that there is an unexplained delay in serving the grounds of detention. According to the learned counsel for the petitioner, though the detention order was passed on 11.11.2023, the grounds of detention was served on the detenue only on 16.11.2023, which is in violation of mandatory provision under Section 8(1) of the Tamil Nadu Act 14 of 1982.

4. In the instant case, though the detenue was detained on 11.11.2023 through the detention order, the grounds of the detention was served only on 16.11.2023, which is on the sixth day. Under Section 8 (1) of the Tamil Nadu Act 14 of 1982, the Detaining Authority is mandated to communicate the grounds of detention within a period of five (5) days. The computation of the period of five days was considered by the

Coordinate Bench of this Court in the case of 'Vasanthi vs. The Secretary to Government and others', passed in H.C.P.Nos.1407 and 1410 of 2023, dated 29.08.2023, wherein reliance was placed on the decision of the Hon'ble Supreme Court in the case of 'Enforcement Directorate, Government of India vs. Kapil Wadhawan and another', reported in '2023 SCC OnLine SC 972', and held as follows: "9.3 ............................

...............It was a reference before the Hon'ble Larger Bench, however, as that is also a matter of curtailment of liberty (as in the case on hand), we draw inspiration from Kapil Wadhawan principle and hold that while computing five days within the meaning of Section 8(1) of Act 14 of 1982, the date on which the preventive detention order is served on the detenu i.e., formal arrest pursuant to the preventive detention order should also be included."

5. Thus, when the order of detention is taken into consideration for the purpose of computing five days period, the Detaining Authority has served it on the sixth day, which is opposite to the ratio laid down by the Hon'ble Supreme Court as followed by the Coordinate Bench of this Court in Vasanthi's case.

6. In view of the violation of the mandatory provision under Section 8 (1) of the Tamil Nadu Act 14 of 1982, the order of detention cannot be legally sustained.

7. Accordingly, the detention order passed by the second respondent on 11.11.2023 in No.578/BCDFGISSSV/2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenue viz., Karthik @ Motta Karthik, aged about 24 years, S/o.Mani, is directed to be set at liberty forthwith, unless his confinement is required in connection with any other case.

[M.S.R., J] [S.M., J] 03.04.2024 Index: Yes/No Internet:Yes/No Tsg

M.S.RAMESH, J.

and SUNDER MOHAN , J.

Tsg To 1.The Secretary to Government, Home, Prohibition Excise Department, Fort St.George, Chennai - 600 009.

2.The Commissioner of Police, Greater Chennai.

3.The Superintendent of Police, Central Prison, Puzhal, Chennai.

4.The Inspector of Police, H-6, R.K.Nagar Police Station, Chennai.

5.The Public Prosecutor, High Court, Madras.

H.C.P.No.638 of 2024 03.04.2024