Lavanya v. The State
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.No.798 of 2023 Lavanya Ezakiyal .. Petitioner Vs.
1.
The State represented by the Secretary to the Government Home, Prohibition and Excise Department Government of Tamil Nadu Fort St.George, Chennai-600 009.
2.
The District Collector and District Magistrate Thiruvannamalai District Thiruvannamalai.
3.
The Superintendent of Police Thiruvannamalai District Thiruvannamalai.
4.
The Superintendent of Prison Central Prison, Vellore.
5.
The Inspector of Police Thiruvannamalai Town Police Station Thiruvannamalai District.
..Respondents Page Nos.1/8
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records of the 2nd respondent in connection with order made in proceedings No.D.O.No.18/2023-C2 dated 24.02.2023 passed against petitioner's husband Ezakiyal @ Ezakiyan, aged 29 years, son of Selvakumar, who is now confined at Central Prison, Vellore and quash the same and direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty.
For Petitioner :
Mr.P.K.Ilavarasam 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 wife of the detenu assailing a 'preventive detention order dated 24.02.2023 bearing reference D.O.No.18/2023-C2' [hereinafter 'impugned preventive detention order' for the sake of convenience and brevity]. To be noted, fifth respondent is the sponsoring authority and second respondent is the detaining authority as the impugned preventive detention order has been made by second respondent.
Page Nos.2/8
2. Impugned preventive 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, Sand-offenders, 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 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3. There is no adverse case. This solitary case which is the sole substratum of the impugned preventive detention order is Crime No.13 of 2023 on the file of Tiruvannamalai Town Police Station for alleged offences under Sections 341 and 302 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and subsequently, altered into Sections 147, 148, 120(b), 341 and 302 IPC. Owing to the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.P.K.Ilavarasam, learned counsel on record for petitioner and Page Nos.3/8
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 arrest in the ground case is 13.01.2023 but the impugned preventive detention order has been made only on 24.02.2023.
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 in this exercise. Considering the facts / circumstances of the case on hand 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 Page Nos.4/8
Tirupura, wherein after considering a proposal by a 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 the 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 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.
Page Nos.5/8
9. To be noted, the sole substratum of the impugned preventive detention order is a solitary case viz., Crime No.13 of 2023 on the file of Tiruvannamalai Town Police Station for alleged offence inter-alia under Sections 341 and 302 of IPC and subsequently, altered into Sections 147, 148, 120(b), 341 and 302 IPC.
10. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
11. Apropos, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 24.02.2023 bearing reference D.O.No.18/2023-C2 made by the second respondent is set aside and the detenu Thiru.Ezakiyal @ Ezakiyan, male, aged 29 years son of Thiru.Selvakumar, 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.) 01.08.2023 Index : Yes Speaking mk P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Vellore.
Page Nos.6/8
To 1.
The State represented by the Secretary to the Government Home, Prohibition and Excise Department Government of Tamil Nadu Fort St.George, Chennai-600 009.
2.
The District Collector and District Magistrate Thiruvannamalai District Thiruvannamalai.
3.
The Superintendent of Police Thiruvannamalai District Thiruvannamalai.
4.
The Superintendent of Prison Central Prison, Vellore.
5.
The Inspector of Police Thiruvannamalai Town Police Station Thiruvannamalai District.
6.
The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and R.SAKTHIVEL, J., mk H.C.P.No.798 of 2023 01.08.2023 Page Nos.8/8