Jabha Malar v. State Of Tamilnadu Rep.By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.09.2019

CORAM

THE HON'BLE MR. JUSTICE M.M.SUNDRESH AND THE HON'BLE MR. JUSTICE RMT. TEEKAA RAMAN H.C.P. No.1363 of 2019 Jabha Malar

...Petitioner

-Vs1.State of Tamil Nadu Rep. by the Secretary, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009 2.The Commissioner of Police, The Greater Chennai City, Vepery, Chennai - 600 007.

...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 order in Memo No.331/BCDFGISSSV/2019, dated 15.06.2019 passed by the second respondent under the Tamilnadu Act 14 of 1982 and set aside the same and direct the respondents to produce the petitioner's husband Isac S/o Duraipandi aged about 29 years the detenu, now confined in Central Prison, Puzhal, Chennai before this Court and set aside the petitioner's husband Isac S/o. Duraipandi aged about 29 years the detenu herein at liberty.

For Petitioner : Mr.V.Karthik For Respondents : Mr.R.Prathap Kumar Addl. Public Prosecutor

ORDER

[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the wife of the detenu Isac, S/o Duraipandi, aged about 29 years. The detenu has been detained by the second respondent by his order in Memo No.331/BCDFGISSSV/2019, dated 15.06.2019, holding to be a "Immoral Traffic Offender", as contemplated under Section 2(g) 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.16 of the Booklet furnished to the detenu, that the arrest of the detenu has been intimated to the family member of the detenu. However, there is no material to substantiate the service of arrest intimation stated to have been made to the family member 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 family member of the detenu through SMS. 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.

5.As evidenced from the document in page no.16 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 family member 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.

6.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.

7.In the result, the Habeas Corpus Petition is allowed and the order of detention in Memo No.331/BCDFGISSSV/2019, dated 15.06.2019, passed by the second respondent is set aside. The detenu, namely, Isac, S/o Duraipandi, aged about 29 years, is directed to be released forthwith unless her detention is required in connection with any other case.

mmi/ssm Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar To 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009 2.The Commissioner of Police, The Greater Chennai City, Vepery, Chennai - 600 007.

3. The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai -600 009.

4. The Superintendent of Prison, Central Prison,Puzhal, Chennai.

5. The Public Prosecutor, High Court, Madras.

H.C.P. No. 1363 of 2019 Kak(20/11/2019)