Abdul Kather v. The Secretary To Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.NO.951 OF 2023 Abdul Kather ..
Petitioner VS.
1.The Secretary to Government Home, Prohibition and Excise Department Secretariat, Fort St. George, Chennai - 600 009.
2.The District Magistrate and District Collector Erode District, Erode.
3.The Superintendent of Police Erode District Erode.
4.The Superintendent of Prison Central Prison - Coimbatore, Coimbatore District.
1/10
5.State Rep. By its The Inspector of Police Chithode Police Station Erode District.
..
Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus to call for entire records, relating to the petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 14.04.2023 on the file of the second respondent herein made in proceedings Memo Cr.M.P.No.02/Goonda/2023/C1, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's brother namely Mujeebrahman S/o. Abdulrahman, aged 44 years before this Court and set the petitioner's brother at liberty from detention, now the petitioner's brother detained at Central Prison, Coimbatore. For Petitioner :
Mr.W.Camyles Gandhi For Respondents :
Mr.A.Gokulakrishnan Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.] When the captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] came up for admission on 06.06.2023, this Bench made an order and a scanned reproduction of the same is as follows:
2/10
3/10
4/10
2.The aforementioned order made in the 06.06.2023 Admission listing shall be read as an integral part and parcel of this order which means that the short forms, short references and abbreviations used in the order in the Admission listing shall be used in the instant order also. 3.There is one adverse case and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.39 of 2023 on the file of Chithode Police Station for alleged offence under Section 399 of IPC and subsequently altered into Sections 399, 420, 465, 468 and 471 of 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.W.Camyles Gandhi, learned counsel on record for petitioner and Mr.A.Gokulakrishnan, learned State Additional Public Prosecutor for all respondents are before us. 5.Learned counsel for petitioner submits that 'live and proximate 5/10
link' between the grounds of detention and purpose of detention has snapped as date of arrest and remand in the ground case is 28.01.2023 but the impugned detention order has been made only on 14.04.2023. 6.Mr.A.Gokulakrishnan, learned State Additional Public Prosecutor submits to the contrary by saying that materials had to be collected and time was consumed for the same. Considering the facts and circumstances of the case and nature of ground case, we find that this explanation of learned State Additional Public 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 6/10
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.
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.To be noted, the adverse case is in Crime No.33 of 2023 on the file of Chithode Police Station, Erode, (occurrence was on 20.01.2023) and 7/10
and therefore time consumed remains unexplained. 10.Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. 11.Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 14.04.2023 bearing reference Cr.M.P.No.02/Goonda/2023C1 made by the second respondent is set aside and the detenu Thiru. Mujeebrahman, aged 44 years, son of Thiru. Abdulrahman 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.] 13.09.2023 Index : Yes Speaking TK P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Coimbatore.
8/10
To 1.The Secretary to Government Home, Prohibition and Excise Department Secretariat, Fort St. George, Chennai - 600 009.
2.The District Magistrate and District Collector Erode District, Erode.
3.The Superintendent of Police Erode District Erode.
4.The Superintendent of Prison Central Prison - Coimbatore, Coimbatore District.
5.The Inspector of Police Chithode Police Station Erode District.
9/10
M.SUNDAR, J.
AND R.SAKTHIVEL, J.
TK H.C.P.NO.951 OF 2023 13.09.2023 (4/6) 10/10