Anjalatchy v. Chief Secretary To Government Of Puducherry
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE Mrs.JUSTICE K.GOVINDARAJAN THILAKAVADI Anjalatchy ..
Petitioner Mother of the detenu Vs.
1.
The Chief Secretary to Government of Puducherry Union of Puducherry Chief Secretariat Puducherry 2.
The Secretary to Lieutenant Governor Rajnivas, Puducherry 3.
The District Magistrate-cum-Authorised Officer Office of the District Magistrate 1st Floor, Vazhadhavoor Road Kavudanpalayam Puducherry- 605 009 4.
The Superintendent of Police (West) Puducherry Page Nos.1/8
5.
The Chief Superintendent of Jail Central Prison, Kalapet Puducherry 6.
The Inspector of Police Villianur Police Station Puducherry ... 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 detention order in No.09/DM/RO/D2/PPASAA/2022, dated 27.10.2022 passed by the third respondent under the Puducherry Prevention of AntiSocial Activities Act, 2008 (Act 10 of 2010) and set aside the same and direct the respondents to produce the petitioner's son Pugazh @ Pugazharasn, son of Purushothaman, aged about 21 years, the detenu, now confined at Central Prison, Kalapet,Puducherry before this Court and set him at liberty.
For Petitioner :
Mr.S.Senthilvel for Mr.U.Yuvaraj For Respondents :
Mr.K.S.Mohandass Public Prosecutor (Puducherry)
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 the mother detenu assailing a 'preventive detention order dated 27.10.2022 bearing reference 09/DM/RO/D2/PPASAA/2022,' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be Page Nos.2/8
noted, sixth respondent is the sponsoring authority and third respondent is the detaining authority as impugned detention order has been made by third respondent.
2. Impugned detention order has been made under sub-section (2) of Section 3 of the 'Puducherry Prevention of Antisocial Activities Act, 2008 (Act 10 of 2010)' [hereinafter 'said Act' for the sake of brevity] read with Order issued by the Government of Puducherry vide G.O.Ms.No.41 dated 6th September 2022 of the Home Department, Puducherry on the premise that the detenu is a 'Dangerous Person' within the meaning of sub-section
(1) of Section 3 of said Act.
3.There are two adverse cases and one ground case. The ground case which constitutes part of substratum of the impugned preventive detention order is Crime No.48 of 2022 on the file of Villianur Police Station, Puducherry for alleged offences under Section 302 of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity] altered to 386, 302 IPC read with Section 34 of IPC. 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.
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4. Mr.S.Senthilvel, learned counsel representing counsel on record for petitioner and Mr.K.S.Mohandass, learend Public Prosecutor (Puducherry), 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 25.02.2022 but the impugned detention order has been made only on 27.10.2022.
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 Page Nos.4/8
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 being 2023:MHC:1110], N.Anitha Vs. The Secretary to Government and and a series of other orders in HCP cases.
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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 27.10.2022 bearing reference 09/DM/RO/D2/PPASAA/2022, made by the third respondent is set aside and the detenu Mr. Pugazh @ Pugazharasn, son of Mr. Purushothaman, aged about 21 years 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, Kalapet, Puducherry Page Nos.6/8
To 1.
The Chief Secretary to Government of Puducherry Union of Puducherry Chief Secretariat Puducherry 2.
The Secretary to Lieutenant Governor Rajnivas, Puducherry 3.
The District Magistrate-cum-Authorised Officer Office of the District Magistrate 1st Floor, Vazhadhavoor Road Kavudanpalayam Puducherry- 605 009 4.
The Superintendent of Police (West) Puducherry 5.
The Chief Superintendent of Jail Central Prison, Kalapet Puducherry 6.
The Inspector of Police Villianur Police Station Puducherry 7.
The Public Prosecutor Puducherry Page Nos.7/8
M.SUNDAR, J., and K.GOVINDARAJAN THILAKAVADI, J., gpa 06.06.2023 Page Nos.8/8