Venkatesh v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.12.2022 Coram THE HONOURABLE MR. JUSTICE P.N.PRAKASH and THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH H.C.P.No.805 of 2022 Venkatesh S/o.Muniyappa ... Petitioner Vs.

1.The State of Tamil Nadu represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai - 9.

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

3.The Superintendent of Police, Krishnagiri Dsitrict.

4.The Superintendent, Central Prison, Salem - 636 007.

5.The Inspector of Police, Denkanikottai Police Station, Krishnagiri District.

Crime No.530 of 2021 ... Respondents 1/8

Writ Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling for the records leading to the detention of petitioner's brother, the detenu Muniyappa @ Jadaiyan S/o.Muniyappa, aged 48 years, D.No.1/215, Bikkanapalli, Village and Post, Denkanikottai Taluk, Krishnagiri District, presently detained in Central Prison, Salem, under Act 14/1982, branded as 'Drug Offender' vide detention order dated 29.04.2022 in S.C.No.13/2022 on the file of the second respondent herein, directing to produce Muniappa @ Jadaiyan, aged 48 years, S/o.Muniyappa, before this Court and thereafter, set him at liberty from the Central Prison, Salem.

For Petitioner :

Mr.B.Vasudevan For Respondents :

Mr.R.Muniyapparaj Additional Public Prosecutor *****

O R D E R

[Made by P.N.PRAKASH, J.] The petitioner is the father of the detenu, Muniyappa @ Jadaiyan S/o.Muniyappa, aged 48 years. The detenu has been detained by the second respondent by his order in S.C.No.13/2022 dated 29.04.2022, holding him 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.

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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 page No.154 of the Booklet furnished to the detenu, that the arrest of the detenu has been intimated to the brother of the detenu through SMS. However, there is no material to substantiate the service of arrest intimation stated to have been made to the brother of the detenu through SMS. Therefore, it is stated that the detenu 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.

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4. Per contra, the learned Additional Public Prosecutor would submit that the arrest of the detenu has been intimated to the brother of the detenu through SMS.

5. The learned Additional Public Prosecutor further submitted that the detenu was arrested and remanded to judicial custody on 28.12.2021. The investigation was completed and final report was filed before the Special Court for EC Act cases, Salem, on time, on 09.06.2022 and it was taken on file in Spl.S.C.No.96 of 2022.

6. 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.

7. As evidenced from the document in page No.154 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 brother of the detenu through SMS, but, no materials have been furnished to substantiate that the 4/8

said intimation was sent through Thapal or Registered post or as per the procedure laid down. Therefore, non-furnishing of details given to the brother of the detenu would amount to deprivation of the right of the detenu 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.

8. 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. In the result, the Habeas Corpus Petition is allowed and the order of detention in S.C.No.13/2022 dated 29.04.2022, passed by the second respondent is set aside. The detenu, viz., Muniyappa @ Jadaiyan 5/8

S/o.Muniyappa, aged 48 years, is directed to be released forthwith unless his detention is required in connection with any other case. [PNP, J.] [NAV, J.] 23.12.2022 Index: Yes/No gm To 1.The Special Court for EC Act cases, Salem.

2.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai - 9.

3.The District Collector and District Magistrate, Krishnagiri District.

4.The Superintendent of Police, Krishnagiri Dsitrict.

5.The Superintendent, Central Prison, Salem - 636 007.

6.The Inspector of Police, Denkanikottai Police Station, Krishnagiri District.

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7.The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.

8.The Public Prosecutor, High Court, Madras.

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P.N.PRAKASH, J.

and N.ANAND VENKATESH, J.

gm H.C.P.No.805 of 2022 23.12.2022 8/8