Sivaraj v. The Secretary To The Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Sivaraj S/o.Kula Rangan ...
Petitioner /Husband of the detenu Vs.
1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector & District Magistrate, Tirupathur District, Tirupathur - 635 601.
3.The Superintendent of Police, Tirupathur District, Tirupathur.
4.The Superintendent of Prison, Special Prison for Women, Vellore - 2.
5.The Inspector of Police, Natrampalli Police Station, Tirupathur District.
... Respondents 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 records in connection with the detention passed by the second respondent dated 12.12.2022 in C3/D.O.No.60/2022 against the petitioner wife Jayalakshmi, Female, aged 38 years W/o.Sivaraj, who is confined at Special Prison for Women, Vellore and set aside the same and direct the respondents to produce the detenue before this Court and set her at liberty.
For Petitioner :
Mr.D.Balaji For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
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 husband of the detenue assailing a 'preventive detention order dated 12.12.2022 bearing reference C3/D.O.No.60/2022' [hereinafter 'impugned preventive 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 detenue is a 'Bootlegger' within the meaning of Section 2(b) 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.358 of 2022 on the file of Natrampalli Police Station for alleged offences under Sections 4(1)(i), 4(1)(aa), 4(1-A) of 'Tamil Nadu Prohibition Act, 1937' ['TNP Act' for brevity] r/w 328 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.
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4. Mr.D.Balaji, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor 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 detenue was arrested on 09.11.2022 but the impugned preventive detention order has been made only on 12.12.2022.
6. Mr.E.Raj Thilak, 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 4/8
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 others reported vide Neutral Citation of Madras High Court being 5/8
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. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 12.12.2022 bearing reference C3/D.O.No.60/2022 made by the second respondent is set aside and the detenu Tmt.Jayalakshmi, aged 38 years, wife of Thiru.Sivaraj 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.) (R.S.V., J.) 26.06.2023 Index : Yes Speaking gm P.S: Registry to forthwith communicate this order to Jail authorities in Special Prison for Women, Vellore.
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To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Collector & District Magistrate, Tirupathur District, Tirupathur - 635 601.
3.The Superintendent of Police, Tirupathur District, Tirupathur.
4.The Superintendent of Prison, Special Prison for Women, Vellore - 2.
5.The Inspector of Police, Natrampalli Police Station, Tirupathur District.
6.The Public Prosecutor Madras High Court, Chennai 7/8
M.SUNDAR, J.
and R.SAKTHIVEL, J.
gm 26.06.2023 8/8