Sivagami v. State Rep By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.03.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Sivagami W/o.Venkatesan .. Petitioner Vs.
1.
The State Represented by The Secretary to Government Government of Tamil Nadu Home, Prohibition and Excise IX Secretariat, St.George Fort, Chennai-600 009.
2.
The District Collector cum District Magistrate The District Collectorate Kallakurichi & District.
3.
The Superintendent of Police The Superintendent of Police Office Kallakurichi District.
4.
The Superintendent of Prison Central Prison Cuddalore.
Page Nos.1/8
5.
The Inspector of Police Chinnasalem Police Station Kallakurichi District.
..
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 of the second respondent in with reference to detention order D.O.No.C2/55/2022 dated 26.09.2022 setting aside the order of detention passed therein and directing the respondent to produce the detenu by namely Venkatesan, son of Marimuthu, aged about 45 years before this Hon'ble Court, now detained in Central Jail at Cuddalore and setting him at liberty. For Petitioner :
Mr.V.Gunasekar 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 wife of the detenu assailing a 'preventive detention order dated 26.09.2022 bearing reference D.O.No.C2/55/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fifth Page Nos.2/8
respondent is the sponsoring authority and second respondent is the detaining authority as the 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 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 'Bootlegger' within the meaning of Section 2(b) of Act 14 of 1982.
3. There are two adverse cases. This solitary case which is the sole substratum of the impugned detention order is Crime No.266 of 2022 on the file of Chinnasalem Police Station for the alleged offences under Sections 4(1)(i), 4(1)(aaa), 4(1-A) and 14A of 'the Tamil Nadu Prohibition Act, 1937' [hereinafter 'TNP Act' for the sake of convenience and clarity]. Owing to the nature of the challenge to the impugned detention order, it is not Page Nos.3/8
necessary to delve into the factual matrix or be detained further by facts.
4. Mr.V.Gunasekar, 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. Though several grounds have been urged in the support affidavit, learned counsel for petitioner at the hearing exhorted one point in his campaign against the impugned detention order and that one point turns on delay in considering a representation sent qua impugned detention order.
6. Responding to the aforementioned submission, learned State Additional Public Prosecutor submitted to the contrary and placed before us a list of dates and the details of the same are as follows: Page Nos.4/8
7. We find that even if the intervening 6 public/Government holidays 05.11.2022, 06.11.2022, 12.11.2022, 13.11.2022, 19.11.2022 and 20.11.2022 are excluded, there is a delay of 12 days in considering the representation. We make it clear that the delay in considering the representation point in challenges to preventive detention orders cannot be decided quantitatively. It has to be decided qualitatively based on the facts, circumstances and the trajectory the representation has taken, in other words, it has to be decided on case to case basis. In the case on hand, we Page Nos.5/8
adopt such an approach and we find that 12 days delay vitiates the impugned detention order. We also hasten to make it clear that there can be no straight jacket formula in terms of number of days as regards this point is concerned and therefore, this order will not serve as precedent in all and every case.
8. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
9. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 26.09.2022 bearing reference D.O.No.C2/55/2022 made by the second respondent is set aside and the detenu Thiru.Venkatesan, aged 45 years, son of Thiru.Marimuthu, 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.) 30.03.2023 Index : Yes Speaking mk P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Cuddalore.
Page Nos.6/8
To 1.
The State Represented by The Secretary to Government Government of Tamil Nadu Home, Prohibition and Excise IX Secretariat, St.George Fort, Chennai-600 009.
2.
The District Collector cum District Magistrate The District Collectorate Kallakurichi & District.
3.
The Superintendent of Police The Superintendent of Police Office Kallakurichi District.
4.
The Superintendent of Prison Central Prison Cuddalore.
5.
The Inspector of Police Chinnasalem Police Station Kallakurichi District.
6.
The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and M.NIRMAL KUMAR, J., mk 30.03.2023 Page Nos.8/8