Syed Ali Fathima v. The Additional Chief Secretary To Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.No.58 of 2023 Syed Ali Fathima D/o.Mohamed Ali Jinnah .. Petitioner Vs.
1.
The Additional Chief Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-600 009.
2.
The Commissioner of Police Greater Chennai, Vepery, Chennai District.
3.
Inspector of Police, J.4 Kotturpuram Police Station, Chennai District.
4.
The Superintendent of Prison, Central Prison, Puzhal, Chennai.
..Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus call for the records in connection with the order of detention passed by the second respondent dated 12.10.2022 in B.C.D.F.G.I.S.S.S.V.No.354 of 2022 against the petitioner's son Abdul Page Nos.1/8
Malik, son of Anwer Usen, aged about 23 years, who is confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenue before this Court and set him at liberty. For Petitioner :
Mr.P.Muthamizh Selvakumar representing Mr.R.Suresh For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] When the captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] was listed in the Admission Board on 25.01.2023, this Court made the following order: 'Captioned Habeas Corpus Petition has been filed in this Court on 23.12.2022 inter alia assailing a detention order dated 12.10.2022 bearing reference No.BCDFGISSSV No.354/2022 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, third respondent is the Sponsoring Authority.
2. The Mother of the detenu is the petitioner.
3. Ms.R.Madhubala, learned counsel representing Mr.R.Suresh, learned counsel on record for habeas corpus petitioner is before us. Learned counsel expresses regret for not representing the matter in the previous listings on 23.01.2023 and 24.01.2023. Page Nos.2/8
Learned counsel for petitioner submits that ground case qua the detenu is for alleged offences under Sections 147, 148, 307 and 332 of IPC in Crime No.285 of 2022 on the file of J-4, Kotturpuram Police Station.
4. The aforementioned detention order has been made on the premise that the detenu is a 'Goonda' under Section 2(f) of '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].
5. The detention order has been assailed inter alia on the ground that the there was a huge delay in passing the detention order.
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
7. Mr.R.Muniyapparaj, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.'
2. The aforementioned order made in the 25.01.2023 Admission listing shall be read as an integral part and parcel of this order which means that the short forms, short references and abbreviations used in the order in the Admission listing shall be used in the instant order also. Page Nos.3/8
3. There is no adverse case. This solitary case which is the sole substratum of the impugned preventive detention order is Crime No.285 of 2022 on the file of J-4 Kotturpuram Police Station for alleged offences under Sections 147, 148, 307 and 332 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and subsequently, altered into Sections 147, 148, 307, 332 and 336 of IPC. Owing to the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.P.Muthamizh Selvakumar, learned counsel representing the 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 date of arrest in the ground case is 05.09.2022 but the impugned preventive detention order has been made only on 12.10.2022. Page Nos.4/8
6. Mr.E.Raj Thilak, learned State Additional Public Prosecutor, submits to the contrary by saying that materials had to be collected and time was consumed in this exercise. Considering the facts / circumstances of the case on hand 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 Tirupura, wherein after considering a proposal by a 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 the other facet is 'unexplained delay'. We find that the captioned matter falls under latter facet i.e., unexplained delay.
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8. To be noted, Banik case has been respectfully followed by this Court in Gomathi Vs.The Principal Secretary to Government and others Sadik Basha Yusuf Vs. The State of Tamil Nadu and others reported vide 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.
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 preventive detention order dated 12.10.2022 bearing reference BCDFGISSSV No.354/2022 made by the second respondent is set aside and the detenu Thiru.Abdul Malik, male, aged 23 years, son of Thiru.Anwer Page Nos.6/8
Usen, 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.) 03.07.2023 Index : Yes Speaking mk P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
To 1.
The Additional Chief Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-600 009.
2.
The Commissioner of Police Greater Chennai, Vepery, Chennai District.
3.
Inspector of Police, J.4 Kotturpuram Police Station, Chennai District.
4.
The Superintendent of Prison, Central Prison, Puzhal, Chennai.
5.
The Public Prosecutor High Court, Madras.
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M.SUNDAR, J., and R.SAKTHIVEL, J., mk H.C.P.No.58 of 2023 03.07.2023 Page Nos.8/8