Sumathi v. The Additional Secrectary
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Sumathi W/o.Malaisamy @ Muniyan .. Petitioner Vs.
1.
The Addl. Secretary Home Department, Prohibition and Excise Department Secretariat St.George Fort, Chennai-600 009.
2.
The Commissioner of Police Commissioner Office Vepery, Tamil Nadu - 600 037.
3.
The Superintendent Central Prison, Puzhal-II Puzhal, Chennai-600 066.
4.
The Inspector of Police N-4, Fishing Harbour Police Station Chennai.
..
Respondents Page Nos.1/8
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records relating to the detention order No.276/BCDFGISSSV/2022, dated 01.09.2022, passed by the 2nd respondent under the respondent to produce the petitioner's son R.Ajithkumar @ Sorimeen Ajith, s/o.Raja, aged about 24 years, the detenu now confined in Central Prison, Puzhal-II, Puzhal, before this Hon'ble Court and set aside the petitioner's son R.Ajithkumar @ Sorimeen Ajith, S/o.Raja aged about 2 years the detenu herein at liberty. For Petitioner :
Mr.S.Apunu For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor assisted by Mr.M.Sylvester John, Advocate
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by mother of the detenu assailing a 'preventive detention order dated 01.09.2022 bearing reference No.276/BCDFGISSSV/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 the impugned detention Page Nos.2/8
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 offenders, Drug-offenders, Forest-offenders, 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] on the premise that the detenu is a 'Drug Offender' within the meaning of Section 2(e) of Act 14 of 1982.
3. There are three adverse cases and one ground case. The ground case which is the sole substratum of the impugned detention order is Crime No.122 of 2022 on the file of N4 Fishing Harbour Police Station for alleged offences under Section 8(c) read with Sections 20(b)(ii)(B) and 29(1) of 'the 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. Page Nos.3/8
4. Mr.S.Apunu, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, assisted by Mr.M.Sylvester John, learned counsel for all respondents are before us.
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 arrest in the ground case is 26.06.2022 but the impugned detention order has been made only on 01.09.2022.
6. Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, submits to the contrary by saying that materials had to be collected and time was consumed in this exercise. Considering the facts / circumstances of the case on hand and nature of ground case, we find that this explanation of learned 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 Page Nos.4/8
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 a proposal by a 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 the 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 Court in Gomathi Vs.The Principal Secretary to Government and others reported vide Neutral Citation of Madras High Court being 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil Nadu and others reported vide Neutral Citation of Madras High Court being 2023/MHC/733, Sangeetha Vs. The Secretary to the Government and others reported vide Neutral Citation of Madras High Court being Page Nos.5/8
2023:MHC:1110, N.Anitha Vs. The Secretary to Government and others reported vide Neutral Citation of Madras High Court being 2023:MHC:1159 and a series of other orders in HCP cases.
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 01.09.2022 bearing reference No.276/BCDFGISSSV/2022 made by the second respondent is set aside and the detenu Thiru.Ajith Kumar @ Sorimeen Ajith, aged 24 years, son of Thiru.Raja, 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.) 03.04.2023 Index : Yes Speaking mk P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
Page Nos.6/8
To 1.
The Addl. Secretary Home Department, Prohibition and Excise Department Secretariat St.George Fort, Chennai-600 009.
2.
The Commissioner of Police Commissioner Office Vepery, Tamil Nadu - 600 037.
3.
The Superintendent Central Prison, Puzhal-II Puzhal, Chennai-600 066.
4.
The Inspector of Police N-4, Fishing Harbour Police Station Chennai.
5.
The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and M.NIRMAL KUMAR, J., mk 03.04.2023 Page Nos.8/8