Kavitha v. The State Of Tamil Nadu,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Kavitha ..Petitioner / Wife of the detenu Vs.
1.
The State of Tamilnadu Represented by Secretary to Government Home, Prohibition and Excise Department Fort St.George Chennai - 600 009 2.
The District Magistrate and District Collector Erode District Erode 3.
The Superintendent of Police Erode District Erode 4.
The Inspector of Police PEW Erode Town Police Station Erode District 5.
The Superintendent of Prison Page Nos.1/8
Central Prison, Coimbatore Coimbatore ... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records relating to the detention order dated 15.10.2022 passed by the second respondent in his proceedings No.Cr.M.P.No.37/GOONDA/2022 C1 and quash the same and direct the respondents herein to produce the petitioner's husband namely Mukesh, son of Ganapathi aged about 32 years, who is presently undergoing detention in the Central Prison, Coimbatore as Bootlegger before this Court and set him at liberty.
For Petitioner :
Mr.M.Vinoth 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 15.10.2022 bearing reference Cr.M.P.No.37/BOOTLEGGER/2022 C1' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and Page Nos.2/8
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 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 five adverse cases. The ground case which is the sole substratum of the impugned detention order is Crime No.
884 of 2022 on the file of Erode Town Prohibition Enforcement Wing for alleged offences under Section 4(1)(a), 4(1-A), 4(1)(b), 4(1)(g) and 4(1)(h) of Tamil Nadu Prohibition Act and Rules 7 Tamil Nadu Rectified Spirit Rules, 2000 and Sections 420, 467, 468 and 471 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' 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.
4.Mr.M.Vinoth, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, assisted by Mr.M.Sylvester John, Advocate, 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 petitioner was arrested on 12.09.2022 but the impugned detention order has been made only on 15.10.2022.
6. Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, submits to the contrary by saying that materials had to be collected /collated and time was consumed in this exercise. Considering the facts and circumstances of the case 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 Substances Act, 1988' [hereinafter 'PIT NDPS Act' for the sake of brevity] in Page Nos.4/8
Tirupura, wherein after considering the proposal by the 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 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 reported vide Neutral Citation of Madras High Court being 2023:MHC:1159 and a series of other orders in HCP cases. Page Nos.5/8
9. We are also informed without any disputation by both sides that coaccused Annachi @ Veerapandi in the ground case was also clamped with an identical preventive detention order, co-accused assailed the same vide H.C.P.No.2327 of 2022 and it was allowed by this Court on the same point yesterday (17.04.2023).
10. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
11. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 15.10.2022 bearing reference Cr.M.P.No.37/BOOTLEGGER/2022 C1 made by the second respondent is set aside and the detenu Thiru.Mukesh, aged 32 years, son of Thiru.Ganapathi, 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.) 18.04.2023 Index : Yes/No Speaking/No speaking order gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Coimbatore Page Nos.6/8
To 1.
The Secretary to Government Home, Prohibition and Excise Department Fort St.George Chennai - 600 009 2.
The District Magistrate and District Collector Erode District Erode 3.
The Superintendent of Police Erode District Erode 4.
The Inspector of Police PEW Erode Town Police Station Erode District 5.
The Superintendent of Prison Central Prison, Coimbatore Coimbatore 6.
The Public Prosecutor Madras High Court, Chennai Page Nos.7/8
M.SUNDAR, J., and M.NIRMAL KUMAR, J., gpa 18.04.2023 Page Nos.8/8