Palaniyammal v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.02.2021 Coram The Hon'ble Mr. Justice P.N.PRAKASH and The Hon'ble Mr. Justice V.SIVAGNANAM H.C.P. No. 1124 of 2020 Palaniyammal .. Petitioner Vs.
1.The Secretary to Government, Home,Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 09.
2.The District Collector and District Magistrate, Erode, Erode District.
3.The Superintendent of Police, O/o. Superintendent Office, Erode, Erode District.
4.The Superintendent of Prison, Central Prison, Coimbatore, Coimbatore District.
5.State Rep. by its The Inspector of Police, Sathyamangalam Police Station, Erode District.
.. Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Habeas Corpus to call for the entire records relating to the petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 30.05.2020 on the file of the second respondent herein made in proceedings Memo Cr.M.P.No.17/Goonda/2020/C1, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's son namely Appusamy @ Appu @ Sivakumar @ Siva, S/o.Palanisamy, aged 38 years, before this Court and set the petitioner's son at liberty from detention, now the petitioner's son detained at Central Prison, Coimbatore.
For Petitioner :
Mr.W.Camyles Gandhi For Respondents:
Mr.R.Prathap Kumar, Addl. Public Prosecutor
ORDER
[Order of the Court was made by P.N.PRAKASH, J.] The petitioner is the mother of the detenu, Appusamy @ Appu @ Sivakumar @ Siva, S/o.Palanisamy, aged 38 years. The detenu has been detained by the second respondent by his order in Cr.M.P.No.17/Goonda/2020/C1, dated 30.05.2020 holding him to be a "Goonda", as contemplated under Section 2(f) 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. Amidst several grounds raised by the learned counsel for the petitioner to attack the impugned order of detention, he has mainly focused his argument on the ground that the detaining authority failed to ask clarification from the sponsoring authority about non serving of arrest memo to the family members, relatives or friends of the detenu and there is no proof to show that the intimation of arrest was given, which clearly shows non-application of mind on the part of detaining authority.
4. A close reading of the booklet shows that though there is a mention about the adverse cases and ground case in the impugned order of detention, particularly Page No.53 of the booklet, there is no proof to show that the arrest of detenu has been intimated to the family members, relatives or friends as mandated by the Constitution. It is also to be remembered that in order to meet fairness, justness and reasonableness, after a person is taken into custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken into custody, by duly intimating as to the place of detention, including the place where the detenu is transferred from time to time, which would ensure the right of the person arrested under preventive detention. If such intimation of arrest has not been made effectively, then, it would confer a right upon the arrestee to impugn the arrest
effected on him.
5.In the case on hand, there is no proof to exhibit such intimation of arrest to the family members of the detenu. Thus, on account of the failure of the detaining authority in communicating the arrest of detenu to the family members, the detention order would be vitiated on the ground of deprivation of right guaranteed under Article 22(1) of the Constitution of India. Thus, for the reasons stated herein-above, the impugned detention order cannot be sustained.
6. In the result, the Habeas Corpus Petition is allowed and the order of detention in Cr.M.P.No.17/Goonda/2020/C1, dated 30.05.2020, passed by the second respondent is set aside. The detenu, namely, Appusamy @ Appu @ Sivakumar @ Siva, S/o.Palanisamy, aged 38 years, is directed to be released forthwith unless his detention is required in connection with any other case.
Sd/- Assistant Registrar(CS-III) //True Copy// Sub Assistant Registrar mmi To 1.The Secretary to Government, Home,Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 09.
2.The District Collector and District Magistrate, Erode, Erode District.
3.The Superintendent of Police, O/o. Superintendent Office, Erode, Erode District.
4.The Superintendent of Prison, Central Prison, Coimbatore, Coimbatore District.
5.The Inspector of Police, Sathyamangalam Police Station, Erode District.
6.The Joint Secretary to Government, Public (Law & Order) Fort St.George, Chennai-9.
7.The Public Prosecutor, High Court, Madras.
H.C.P. No. 1124 of 2020 GSM(CO) CB(12/02/2021)