R.Mani v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.03.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR R.Mani S/o.Ramesh ..
Petitioner/ Friend of detenu Vs.
1.
The Secretary to the Government Government of Tamil Nadu (Home) Prohibition and Excise Department Fort St.George, Chennai 2.
The District Collector and District Magistrate Vellore District Vellore-9 3.
The Superintendent of Police Vellore District, Vellore 4.
The Superintendent Central Prison Vellore, Vellore District Page Nos.1/8
5.
The Inspector of Police Katpadi Police Station Katpadi, Vellore District ..
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 relating to the impugned order C3/D.O No.26/2022 dated 18.03.2022 on the file of 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the detenu, namely Kumaran, son of Marimuthu, aged about 37 years, now confined at Central Prison, Vellore before this Court and set him at liberty.
For Petitioner :
Mr.G.Vinoth Kumar 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 friend of detenu assailing a 'preventive detention order dated 18.03.2022 bearing reference C3/D.O.No.26/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fifth Page Nos.2/8
respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
2. Impugned 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 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] 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 detention order is Crime No.54 of 2022 on the file of Katpadi Police Station for alleged offences under Sections 5(m), 5(n) and Section 6 of Protection of Children from Sexual Offices Act 2012 read with Sections 324 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Owing to the nature of the challenge to the impugned detention order, it is not Page Nos.3/8
necessary to delve into the factual matrix or be detained further by facts.
4. Mr.G.Vinodh Kumar, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
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 01.02.2022 but the impugned detention order has been made only on 18.03.2022.
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 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 Page Nos.4/8
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 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 Bench in Gomathi Vs.The Principal Secretary to Government and others reported in 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil Nadu and others reported in 2023/MHC/733 and series of other HCP matters.
9. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. Page Nos.5/8
10. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 18.03.2022 bearing reference C3/D.O.No.26/2022 made by the second respondent is set aside and the detenu Thiru.Kumaran, aged 37 years, son of Thiru.Marimuthu 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.) (M.N.K.,J.) 13.03.2023 Index : Yes Speaking gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Vellore Page Nos.6/8
To 1.
The Secretary to the Government Government of Tamil Nadu (Home) Prohibition and Excise Department Fort St.George, Chennai 2.
The District Collector and District Magistrate Vellore District Vellore-9 3.
The Superintendent of Police Vellore District, Vellore 4.
The Superintendent Central Prison Vellore, Vellore District 5.
The Inspector of Police Katpadi Police Station Katpadi, Vellore District 6.
The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and M.NIRMAL KUMAR, J., gpa 13.03.2023 Page Nos.8/8