K.Senthil Kumar v. The Secretary To The Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.07.2021 Coram The Honourable Mr. Justice P.N.PRAKASH and The Honourable Mr. Justice R.PONGIAPPAN H.C.P.No.2288 of 2020 K.Senthilkumar .. Petitioner Vs.
1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Kancheepuram District, Kancheepuram.
3.The Superintendent of Police, Kancheepuram District, Kancheepuram.
4.The Superintendent of Prison, Central Prison, Vellore - 2.
5.The Inspector of Police, Manimangalam Circle, Kancheepuram District.
.. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the records in connection with the order of detention passed by the second respondent 25.10.2020 in B.C.D.F.G.I.S.S.S.V.No.64/2020 against the petitioner's brother Gopi @ Gopinath, aged about 30 years, son of Kalyanasundaram, who is confined at Central Prison, Vellore and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty forthwith.
For Petitioner : Mr.S.Senthil Vel For Respondents :
Mr.R.Muniyapparaj, Govt.Advocate (Crl.Side)
ORDER
[Order of the Court was made by P.N.PRAKASH, J.] The petitioner is the brother of Gopi @ Gopinath, aged about 30 years, son of Kalyanasundaram, who is the detenu. The detenu has been detained by the second respondent by his order in B.C.D.F.G.I.S.S.S.V.No.64/2020 dated 25.10.2020, holding him 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 Government Advocate (Crl.Side) appearing for the respondents and we have also perused the records carefully.
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.140 of the Booklet furnished to the detenu, that the arrest of the detenu has been intimated to the friend of the detenu. However, there is no material to substantiate the service of arrest intimation stated to have been made to the friend 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 Government Advocate (Crl.Side) would submit that the arrest of the detenu has been intimated to the friend 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.140 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 friend 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.
In the result, the Habeas Corpus Petition is allowed and the order of detention in B.C.D.F.G.I.S.S.S.V.No.64/2020 dated 25.10.2020, passed by the second respondent is set aside. The detenu, viz., Gopi @ Gopinath, aged about 30 years, son of Kalyanasundaram, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CS-IV) //True Copy// Sub Assistant Registrar nsd To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector and District Magistrate, Kancheepuram District, Kancheepuram.
3.The Superintendent of Police, Kancheepuram District, Kancheepuram.
4.The Superintendent of Prison, Central Prison, Vellore - 2.
5.The Inspector of Police, Manimangalam Circle, Kancheepuram District.
6.The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai - 9.
7.The Public Prosecutor, High Court, Madras.
H.C.P.No.2288 of 2020 VSN II(CO) SB(23/07/2021)