M.Vijaya v. Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL M.Vijaya .. Petitioner Vs 1.State of Tamil Nadu Rep. By The Secretary to Government, Department of Home, Prohibition and Excise, Secretariat, Fort St.George, Chennai - 9.
2.The Commissioner of Police, Greater Chennai, Chennai District.
3.The Superintendent of Prison, Central Prison Puzhal II, Puzhal, Chennai.
4.The Inspector of Police, S7 Madipakkam Police Station, Chennai.
.. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records in No.132/BCDFGISSSV/2023 passed by the second respondent on 27.04.2023 on the file of the second respondent and quash the same as illegal and consequently direct the respondents to produce the petitioner's son Muthu @ Muthukrishnan, Son of Munusamy, aged Page Nos.1/9
about 28 years, before this Court, who is now detained in Central Prison, Puzhal II, Chennai and set him at liberty. For Petitioner :
Mr.A.Udhayachandiran For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.C.Aravind
ORDER
[Order of the Court was made by M.SUNDAR, J.,] This order will now dispose of captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity, convenience and clarity].
2. When the captioned HCP was listed for Admission on 26.06.2023, the following proceedings/order was made: 'H.C.P.No.1047 of 2023 M.SUNDAR, J.
and R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR, J.,) Captioned Habeas Corpus Petition has been filed in this Court on 13.06.2023 inter alia assailing a detention order dated 27.04.2023 bearing reference BCDFGISSSV No.132/2023 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fourth respondent is the Sponsoring Authority.
2. To be noted, mother of the detenu is the petitioner.
3. Mr.A.Udhayachandiran, learned counsel on record for Page Nos.2/9
petitioner is before us. Learned counsel for petitioner submits that ground case qua the detenu is for alleged offences under Sections 294(b), 341, 397, 336 and 506(ii) of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for the sake of brevity] in Crime No.118 of 2023 on the file of S-7, Madipakkam Police Station.
4. The aforementioned detention order has been made on the premise that the detenu is a 'Goonda' under Section 2(f) of 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forestoffenders, Goondas, Immoral traffic offenders, Sandoffenders, 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].
5. The detention order has been assailed inter alia on the ground that some of the pages in the grounds booklet furnished to the detenu are illegible which prevented the detenu from making an effective representation.
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
7. Mr.E.Raj Thilak, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.'
3. The aforementioned proceedings/order dated 26.06.2023 captures all essentials i.e., essential facts imperative for appreciating this final order and therefore we are not setting out the facts again. Suffice to say that the aforementioned Admission Board order dated 26.06.2023 shall now be read as an integral part and parcel of the instant final order. This also means that the short forms, short references and abbreviations used in the aforementioned Admission Board order will continue to be used in the instant final order also.
4. Before we proceed further, we make it clear that 'detention Page Nos.3/9
order dated 27.04.2023 bearing reference BCDFGISSSV No.132/2023 made by the detaining authority' shall hereinafter be referred to as the 'impugned preventive detention order' for the sake of convenience and clarity.
5. Mr.A.Udhayachandiran, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned Additional Public Prosecutor assisted by Mr.C.Aravind, learned counsel for all the respondents are before us.
6. As would be evident from paragraph 5 of the Admission Board order, learned counsel for the petitioner has predicated his campaign against the impugned preventive detention order on the point that some of the pages in the grounds booklet furnished to the detenu are illegible, however, today in the Final Hearing Board, 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 03.04.2023 but the impugned preventive detention order has been made only on 27.04.2023.
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7. 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 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.
8. 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 Page Nos.5/9
facet is 'unexplained delay'. We find that the captioned matter falls under latter facet i.e., unexplained delay.
9. To be noted, Banik case has been respectfully followed by this Court in Gomathi Vs.The Principal Secretary to Government 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil being 2023/MHC/733, Sangeetha Vs. The Secretary to the High Court being 2023:MHC:1110, N.Anitha Vs. The Secretary to High Court being 2023:MHC:1159 and a series of other orders in HCP cases.
10. The adverse case cited in the grounds of impugned preventive detention order pertains to the year i.e., 2022 (date of occurrence 22.08.2022) and therefore time consumed remains unexplained.
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11. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
12. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 27.04.2023 bearing reference BCDFGISSSV No.132/2023 made by the second respondent is set aside and the detenu Thiru.Muthu @ Muthukrishnan, aged 28 years, son of Thiru.Munusamy, 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.) 27.09.2023 Index : Yes/No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai - 66. To 1.The Secretary to Government, Department of Home, Prohibition and Excise, Secretariat, Fort St.George, Chennai - 9.
2.The Commissioner of Police, Greater Chennai, Chennai District.
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3.The Superintendent of Prison, Central Prison Puzhal II, Puzhal, Chennai.
4.The Inspector of Police, S7 Madipakkam Police Station, Chennai.
5.The Public Prosecutor, High Court, Madras.
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M.SUNDAR, J., and R.SAKTHIVEL, J., mmi 27.09.2023 Page Nos.9/9