R.Nithya v. The State Of Tamil Nadu Rep.By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 15.04.2021 Coram The Honourable Mr. Justice P.N.PRAKASH and The Honourable Mr. Justice R.PONGIAPPAN H.C.P.No.1804 of 2020 R.Nithya ... Petitioner Vs.

1. State of Tamil Nadu represented by The Secretary, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The Commissioner of Police/ Detaining Authority, Tiruppur City, Tiruppur District.

3. The Superintendent of Prison, Central Prison, Coimbatore & District.

4. The Inspector of Police, Tiruppur South Police Station, Tiruppur District.

... Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus calling for the records relating to the detention issued by the second respondent herein in detention order C.No.22/G/IS/2020 dated 08.08.2020 and quash the same and direct the respondents herein to produce the body of the detenu viz., Rajkumar, son of Rajasekar, aged about 38 years, husband of the petitioner herein and set him at liberty from the third respondent prison, viz., the Central Prison, Coimbatore, forthwith.

For Petitioner : Mr.G.Magesh Kumar For Respondents :

Mr.R.Prathap Kumar, Addl. Public Prosecutor

ORDER

[Order of the Court was made by R.PONGIAPPAN, J.] The petitioner is the wife of the detenu, Rajkumar, son of Rajasekar, aged about 38 years. The detenu has been detained by the second respondent by his order in C.No.22/G/IS/2020 dated 08.08.2020, holding to be a "Goonda", as contemplated under Section 2(f) 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.64 of the Booklet furnished to the detenu, that the arrest of the detenu has been intimated to the wife and brother of the detenu. However, there is no material to substantiate the service of arrest intimation stated to have been made to the wife and brother 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 wife and brother of the detenu through SMS.

5.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. 6.As evidenced from the document in page No.64 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 wife and brother of the detenu through SMS, but, no materials have been furnished to substantiate that the said intimation was sent through Thapal 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.

7.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.

8. In the result, the Habeas Corpus Petition is allowed and the order of detention in C.No.22/G/IS/2020 dated 08.08.2020, passed by the second respondent is set aside. The detenu, viz., Rajkumar, son of Rajasekar, aged about 38 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar NSD To

1. The Secretary, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The Commissioner of Police/ Detaining Authority, Tiruppur City, Tiruppur District.

3. The Superintendent of Prison, Central Prison, Coimbatore & District.

4. The Inspector of Police, Tiruppur South Police Station, Tiruppur District.

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

6. The Public Prosecutor, High Court, Madras.

H.C.P.No.1804 of 2020 UM(CO) TE(29/04/2021)