K.Malar v. State Rep.By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and TTHE HONOURABLE Mrs.JUSTICE K.GOVINDARAJAN THILAKAVADI K.Malar Wife of Krishnamoorthi ..
Petitioner / Mother of the detenu Vs.
1.
State of Tamil Nadu Rep. By The Principal Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai - 600 009 2.
The District Collector and District Magistrate O/o. The District Collector and District Magistrate Mayiladuthurai District Mayiladuthurai 3.
The Superintendent of Police Mayiladuthurai District Mayiladuthurai Page Nos.1/8
4.
The Superintendent Central Prison Tiruchirappalli 5.
The Inspector of Police Prohibition Enforcement Wing, Sirkazhi (i/c) Prohibition Enforcement Wing Mayiladuthurai Mayiladuthurai District ... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the entire records in connection with the detention order passed in C.O.C.No.54/2022 dated 23.11.2022 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the detenu Vijay, son of Krishnamoorthi, male, aged 30 years, who is detained in Central Prison, Thiruchirappalli before this Court and set him at liberty. For Petitioner :
Ms.S.Vasavi Sridevi For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor Assisted by Mr.Sylvester John Advocate Page Nos.2/8
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 detenu assailing a 'preventive detention order dated 23.11.2022 bearing reference C.O.C.No.54 of 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.
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 four adverse cases and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive Page Nos.3/8
detention order is Crime No.971 of 2022 on the file of Mayiladuthruai Prohibition Enforcement Wing for alleged offences under Sections 4(1)(aaa) and 4(1)(i) read with Section 4(1-A) of Tamil Nadu Prohibition Act, 1937. 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. Ms.S.Vasavi Sridevi, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, assisted by Mr.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 26.09.2022 but the impugned detention order has been made only on 23.11.2022.
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. Page Nos.4/8
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 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 Madras High Court being 2023/MHC/733], Sangeetha Vs. The Secretary Page Nos.5/8
being 2023:MHC:1110], N.Anitha Vs. The Secretary to Government and 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 23.11.2022 bearing reference C.O.C.No.54 of 2022 made by the second respondent is set aside and the detenu Thiru.Vijay, aged 30 years, son of Thiru.Krishnamoorthi 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.) (K.G.T.,J.) 06.06.2023 Index : Yes Speaking order gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Tiruchirappalli Page Nos.6/8
To 1.
The Principal Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai - 600 009 2.
The District Collector and District Magistrate O/o. The District Collector and District Magistrate Mayiladuthurai District Mayiladuthurai 3.
The Superintendent of Police Mayiladuthurai District Mayiladuthurai 4.
The Superintendent Central Prison Tiruchirappalli 5.
The Inspector of Police Prohibition Enforcement Wing, Sirkazhi (i/c) Prohibition Enforcement Wing Mayiladuthurai Mayiladuthurai District 6.
The Public Prosecutor Madras High Court, Chennai Page Nos.7/8
M.SUNDAR, J., and K.GOVINDARAJAN THILAKAVADI, J., gpa 06.06.2023 Page Nos.8/8