M.Shantha v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE DR.JUSTICE D.NAGARJUN M.Shantha W/o.Mahendran ..Petitioner Mother of the detenu Vs.
1.
The Secretary to Government Home, Prohibition and Excise Department Secretariat Fort St.George Chennai - 600 009 2.
The State of Tamilnadu Represented by the Commissioner of Police Greater Chennai Office of the Commissioner of Police (Goondas Section), Vepery Chennai - 600 007 3.
The Superintendent Central Prison Puzhal Chennai - 600 066 Page Nos.1/8
4.
The Inspector of Police F-1, Chindaripet Police Station Chindraipet, Chennai - 600 002 ... 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 relating to the impugned order of detention passed by the 2nd respondent in Memo No.313/BCDFGISSSV/2022 dated 17.09.2022 as Goonda and set aside the same and consequently direct the respondents to produce the detenu M.Santhosh, S/o.Mahendran, aged 21, now confirmed at Central Prison, Puzhal before this Court and set him at liberty forthwith. For Petitioner :
Mr.M.Mohammed Saifulla for Mr.R.Sankarasubbu 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 17.09.2022 bearing reference BCDFGISSSV No.313/2022' [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 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982. 3.There is no adverse case. The solitary case which is the sole substratum of the impugned detention order is Crime No.192 of 2022 on the file of F1, Chindatripet Police Station for an alleged offence under Section 174 of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.P.C' for the sake of brevity and clarity] and subsequently altered to 302 of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity]. 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.M.Mohamed Saifulla, learned counsel representing the 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 23.07.2022 but the impugned detention order has been made only on 17.09.2022.
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 Page Nos.4/8
(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 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 Page Nos.5/8
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.
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 17.09.2022 bearing reference BCDFGISSSV No.313/2022 made by the second respondent is set aside and the detenu Thiru.Santhosh, aged 21 years, son of Thiru.Mahendran 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.) (D.N.R.,J.) 06.04.2023 Index : Yes Speaking gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal.
Page Nos.6/8
To 1.
The Secretary to Government Home, Prohibition and Excise Department Secretariat Fort St.George Chennai - 600 009 2.
The State of Tamilnadu Represented by the Commissioner of Police Greater Chennai Office of the Commissioner of Police (Goondas Section), Vepery Chennai - 600 007 3.
The Superintendent Central Prison Puzhal Chennai - 600 066 4.
The Inspector of Police F-1, Chindaripet Police Station Chindadaripet, Chennai - 600 002 5.
The Public Prosecutor Madras High Court, Chennai Page Nos.7/8
M.SUNDAR, J., and Dr.D.NAGARJUN, J., gpa 06.04.2023 Page Nos.8/8