Chellammal v. The Secretary To Government Of Tamilnadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH AND THE HONOURABLE MRS.JUSTICE R.HEMALATHA H.C.P.NO.1003 OF 2021 Chellammal ... Petitioner .Vs.
1. The Secretary to Government of Tamilnadu, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.
2. The District Magistrate & District Collector, Namakkal District, Namakkal.
3. The Superintendent of Police, Namakkal District, Namakkal.
4. The Inspector of Police, All Women Police Station, Rasipuram, Namakkal District.
5. The Superintendent of Prison, Central Prison, Salem.
... Respondents PRAYER:- Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records pertaining to the order dated 30.11.2020 made in C.M.P.No.23/Sexual Offender/2020 (M1) on the file of the District Magistrate & District Collector, Namakkal District, the second respondent herein and quash the same and produce the detenue (G.Surya, age 23 years, S/o.Ganapathi) before this Hon'ble Court and set him at liberty.
For Petitioner : Mr.A.V.Arun For Respondents : Mr.R.Muniyapparaj Additional Public Prosecutor
ORDER
[Order of the Court was made by R.HEMALATHA, J.] The petitioner is the mother of the detenu viz., Surya, S/o.Ganapathi, aged about 23 years. The detenu has been detained by the 2nd respondent by his order dated 30.11.2020 in C.M.P.No.23/Sexual Offender/2020 [M1], holding him to be a "Sexual Offender", as contemplated under Section 3(1) 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. 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 the Arrest Memo at page No.54 of the Booklet furnished to the detenu, that the arrest of the detenu has been intimated to the mother of the detenu. However, there is no material to substantiate the service of arrest intimation stated to have been made to the mother of the detenu. 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.
4. Per contra, the learned Additional Public Prosecutor would submit that the arrest of the detenu has been intimated to the mother of the detenu through SMS. 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.
5. As evidenced from the document in page No.54 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 mother of the detenu through SMS, but, no materials have been furnished to substantiate that the said intimation was sent through Tapal or Registered post or as per the procedure laid down. Therefore, non-furnishing of details given to the relatives 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.
6. 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 C.M.P.No.23/Sexual Offender/2020 [M1], dated 30.11.2020, passed by the 2nd respondent is set aside. The detenu viz., Surya, S/o.Ganapathi, aged about 23 years, is directed to be released forthwith, unless his detention is required in connection with any other case.
Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar mtl To 1.
The Secretary to Government of Tamilnadu, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.
2.
The Joint Secretary to Government Public, Law and Order Department Secretariat, Chennai - 600 009.
3.
The District Magistrate & District Collector, Namakkal District, Namakkal.
4.
The Superintendent of Police, Namakkal District, Namakkal.
5.
The Inspector of Police, All Women Police Station, Rasipuram, Namakkal District.
6.
The Superintendent of Prison, Central Prison, Salem.
+1cc to Mr.A.V.Arun, Advocate, S.R.No.59898 H.C.P.NO.1003 OF 2021 CA(CO) PBS/22/11/2021