Mohana v. Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Mohana .. Petitioner Vs.
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai - 600 009.
2.The District Magistrate and District Collector, Salem District, Salem.
3.The Superintendent of Police, Salem, Salem District.
4.The Superintendent of Prison, Central Prison - Salem, Salem District.
5.State rep. by The Inspector of Police, Mecheri Police Station, Salem District.
.. 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 entire records relating to the petitioner's husband detention under Tamil Nadu Act 14 of 1982 vide detention order dated 07.10.2022 on the file of the second respondent herein made in proceedings Memo C.M.P.No.26/Drug Offender/C2/2022 quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband namely Santhoshkumar S/o.(Late) Murugan, aged 27 years before this court and set him at liberty from detention, now the petitioner's husband detained at Central Prison, Salem. For Petitioner :
Mr.S.Selvakumar for Mr.W.Camyles Gandhi For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor Assisted by Mr.M.Sylvester John
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 detenu assailing a 'preventive detention order dated 07.10.2022 bearing reference C.M.P.No.26/Drug Offender/C2/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fifth respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
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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 'Drug Offender' within the meaning of Section 2(e) of Act 14 of 1982. 3.There are two adverse cases. The ground case which is the sole substratum of the impugned detention order is Crime No.326/2022 on the file of Mecheri Police Station for alleged offences under Sections 8(c) read with 20(b)(ii)(B) of 'Narcotic Drugs and Psychotropic Substances Act, 1985' [hereinafter 'NDPS' 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.S.Selvakumar, learned counsel representing Mr.W.Camyles Gandhi, learned counsel on record for petitioner and Mr.R.Muniyapparaj, Page Nos.
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 26.07.2022 but the impugned detention order has been made only on 07.10.2022.
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 arose under 'Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Page Nos.4/8
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 2023:MHC:1110, N.Anitha Vs. The Secretary to Government and others Page Nos.5/8
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 07.10.2022 bearing reference C.M.P.No.26/Drug Offender/C2/2022 made by the second respondent is set aside and the detenu Thiru.Santhoshkumar, male, aged 27 years, son of Thiru.Murugan [Late] 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.) 10.04.2023 Index : Yes / No Speaking / Non-speaking cse P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Salem.
Page Nos.6/8
To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai - 600 009.
2.The District Magistrate and District Collector, Salem District, Salem.
3.The Superintendent of Police, Salem, Salem District.
4.The Superintendent of Prison, Central Prison - Salem, Salem District.
5.The Inspector of Police, Mecheri Police Station, Salem District.
6.The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and M.NIRMAL KUMAR, J., cse 10.04.2023 Page Nos.8/8