E.Kalaivani v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.03.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR E.Kalaivani ..
Petitioner Vs.
1.The State of Tamil Nadu rep. By its Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.
2.The District Collector and District Magistrate, Nagapattinam District. Nagapattinam.
3.The Superintendent of Police, Nagapattinam District, Nagapattinam.
4.The Inspector of Police, Vedaranyam Police Station, Vedaranyam, Nagapattinam District.
5.The Superintendent, Central Prison, Thiruchirappalli, Thiruchirappalli District.
..
Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling upon the production of the records relating to the detention order dated Page No.1 of 7
29.07.2022 made in detention order in C.O.C. No.43/2022 passed by the second respondent herein, quash the same and direct the respondents to produce the body of the detenu Elamaran, male, aged 46 years, Son of Ganesamoorthy, who has been detained in Central Prison at Tiruchirappalli before this Court and set at liberty. For Petitioner :
Mr.C.Venkatesan for Mr.R.Muruga Bharathi For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by wife of detenu assailing a 'preventive detention order dated 29.07.2022 bearing reference C.O.C. No.43/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
2. Impugned detention order has been made under 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law Page No.2 of 7
offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, 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] on the premise that the detenu is a 'Drug Offender' within the meaning of Section 2(e) of Act 14 of 1982.
3.The ground case which is the sole substratum of the impugned detention order is Crime No.125 of 2022 on the file of Vedaranyam Police Station for alleged offences under Section 8(c) r/w 20(b)(ii)(C), 25, 29(1) of 'Narcotic Drugs and Psychotropic Substances Act, 1985' (hereinafter 'NDPS Act' for the sake of convenience and clarity). Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.C.Venkatesan, learned counsel representing Mr.R.Muruga Bharathi, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
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5. Learned counsel for petitioner submits that 'live and proximate link' between the grounds of detention and purpose of detention has snapped as date of remand in the ground case is 22.04.2022 but the impugned detention order has been made only on 29.07.2022.
6. 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.
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 Page No.4 of 7
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 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 Bench in Gomathi Vs.The Principal Secretary to Government and others reported in 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil Nadu and others reported in 2023/MHC/733 and series of other HCP matters.
9. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
10. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 29.07.2022 bearing reference C.O.C. No.43/2022 made by the second respondent is set aside and the Page No.5 of 7
detenu Thiru.Elamaran, male, aged 46 years, son of Thiru.Ganesamoorthy 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.) (M.N.K.,J.) 13.03.2023 Index : Yes / No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Tiruchirappalli. To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.
2.The District Collector and District Magistrate, Nagapattinam District. Nagapattinam.
3.The Superintendent of Police, Nagapattinam District, Nagapattinam.
4.The Inspector of Police, Vedaranyam Police Station, Vedaranyam, Nagapattinam District.
5.The Superintendent, Central Prison, Thiruchirappalli, Thiruchirappalli District.
6.The Public Prosecutor, High Court, Madras.
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M.SUNDAR, J., and M.NIRMAL KUMAR, J., mmi 13.03.2023 Page No.7 of 7