Parvathy v. The State Of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.09.2023 Coram THE HON'BLE MR.JUSTICE M.SUNDAR and THE HON'BLE MR. JUSTICE R.SAKTHIVEL Parvathy .. Petitioner/ Mother of the detenu vs

1. The State of Tamil Nadu Rep. By its Additional Chief Secretary to Government Home, Department of Prohibition and Excise Secretariat, Fort St.George Chennai - 600 009 2.The Commissioner of Police, Greater Chennai City Police Commissioner Office, Vepery Chennai - 600 007

3. The Inspector of Police J-9 Thuraipakam Police Station Chennai

4. The Superintendent of Police Central Prison - II Puzhal, Chennai .. Respondents Petition filed under Article 226 of the Constitution of India praying for 1/8

issuance of a writ of habeas corpus to call for the records in No.104/BCDFGISSSV/2023 dated 17.04.2023 on the file of the second respondent herein and set aside the same as illegal and produce the detenu Vikki @ Vignesh, son of Raja, aged 28 years before this Court and set him at liberty.

For Petitioner :

Mr.Ilayaraja Kandasamy For Respondents :

Mr.E.Raj Thilak Additional Public Prosecutor

ORDER

[Order of the Court was made by M.SUNDAR, J.] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by the wife of the detenu assailing a 'preventive detention order dated 17.04.2023 bearing reference BCDFGISSSV No.104 of 2023' [hereinafter 'impugned preventive detention order' for the sake of convenience and brevity]. To be noted, third respondent is the sponsoring authority and second respondent is the detaining authority as impugned preventive 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 2/8

(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 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982 3.There is one adverse cases and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.82 of 2023 on the file of J-9 Thuraipakkam Police Station for alleged offences under Sections 147, 148 and 302 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.

4. Mr.Ilayaraja Kandasamy, 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 petitioner was arrested on 09.03.2023 but the impugned detention order has been made only on 17.04.2023.

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6. Mr.E.Raj Thilak, learned State Additional Public Prosecutor, submits to the contrary by saying that materials had to be collected /collated and time was consumed in this exercise. 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 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.

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8. To be noted, Banik case has been respectfully followed by this Court in Gomathi Vs.The Principal Secretary to Government and others Sadik Basha Yusuf Vs. The State of Tamil Nadu and others reported vide Vs. The Secretary to the Government and others reported vide Neutral Citation of Madras High Court being 2023:MHC:1110, N.Anitha Vs. The Secretary to Government and others reported vide Neutral Citation of Madras High Court being 2023:MHC:1159 and a series of other orders in HCP cases.

9. Besides ground case, there is one adverse case in Crime No.276 of 2022 on the file of J-9 Thuraipakkam Police Station (occurrence was on 11.08.2022) and therefore, the delay remains unexplained.

10. This Court is also informed that co-accused in the ground case was also clamped with similar preventive detention order, the same was assailed vide H.C.P.No.756 of 2023 and the same has been allowed by this Court vide order dated 31.08.2023.

11. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. 5/8

12.Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 17.04.2023 bearing reference BCDFGISSSV No.104/2023 made by the second respondent is set aside and the detenu Thiru.Vikki @ Vignesh, S/o.Thiru.Raja, aged about 28 years, 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.) (R.S.V.,J.) 08.09.2023 Index : Yes Speaking order gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal.

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To

1. The Additional Chief Secretary to Government Home, Prohibition and Excise Department Secretariat, Fort St.George Chennai - 600 009 2.The Commissioner of Police, Chennai City Police, Greater Chennai Commissioner Office, Vepery Chennai - 600 007

3. The Inspector of Police J-9 Thuraipakam Police Station Chennai

4. The Superintendent of Police Central Prison - II Puzhal, Chennai 5.The Public Prosecutor High Court, Madras.

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M.SUNDAR, J., and R.SAKTHIVEL, J., GPA 08.09.2023 8/8