V.Shalini v. The Principal Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.11.2023 CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL V.Shalini ... Petitioner vs.
1. The Principal Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai.
2. The Commissioner of Police, O/o. the Commissioner of Police, Madurai City.
3. The Superintendent of Prison, Central Prison, Madurai.
4. The Inspector of Police, Tallakulam All Women Police Station, Madurai 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 connected with the detention order in No.01/BCDFGISSSV/2023 dated Page No.1 of 10
24.01.2023 on the file of the respondent No.2 and quash the same as illegal and direct the respondents to produce the body or person of the petitioner's husband namely Vasanth S/o. Balamurugan aged about 28 years now confined at Central Prison, Madurai, before this Court and set him at liberty forthwith.
For Petitioner : Mr.S.Nihar Ali For Respondents : Mr.A.Thiruvadi Kumar 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 brevity] was listed in the Admission Board on 21.02.2023, a Hon'ble Coordinate Division Bench made the following order in the Admission Board:
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2.
It has now become necessary to set out a thumbnail sketch of factual matrix and we do so in the paragraphs infra. 3.
Today, the captioned matter is in the Final Hearing Board. 4.
Mr.S.Nihar Ali, learned counsel on record for petitioner and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all respondents are before us.
5.
Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] has been filed by the wife of the detenu assailing the 'preventive detention order dated 24.01.2023 bearing reference No.01/BCDFGISSSV/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience]. To be noted, 4th respondent is the sponsoring authority [hereinafter 'sponsoring authority' for convenience and brevity] and second respondent is the detaining authority as impugned preventive detention order has been made by second respondent.
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6.
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 'Sexual Offender' within the meaning of Section 2(ggg) of Act 14 of 1982.
7.
The ground case which constitutes sole substratum of the impugned preventive detention order is Crime No.67 of 2022 on the file of All Women Police Station, Tallakulam, Madurai City, for alleged offences under Sections 9(m), 9(n) and 10 of Protection of Children from Sexual Offences Act, 2012 [hereinafter 'POCSO Act' for brevity] and Section 3(1)(w)(i) r/w 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 [hereinafter 'SC and ST Act' for brevity] and subsequently altered into Sections 5(m)(n) and 6 of POCSO Act and Section 3(1)(w)(i) r/w 3(2)(v) of SC and ST Act. Considering the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix of the case. Page No.4 of 10
8.
In the final hearing today, learned counsel predicated his campaign against the impugned preventive detention order on the point that the detenu was arrested on 28.11.2022 but the impugned preventive detention order has been made only on 24.01.2023 resulting in live and proximate link between grounds and purpose of detention getting snapped.
9.
Mr.Thiruvadi Kumar, learned State Additional Public Prosecutor, submits that materials had to be collected and time was consumed in this exercise.
10.
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 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 Page No.5 of 10
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. 11.
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 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 similar orders in HCP cases. 12.
To be noted, the impugned preventive detention order is predicated on a solitary case viz., Crime No.67 of 2022 on the file of All Women Police Station, Tallakulam, Madurai City, for alleged offences under Sections 9(m), 9(n) and 10 of POCSO Act and Section 3(1)(w)(i) Page No.6 of 10
r/w 3(2)(v) of SC and ST Act and subsequently altered into Sections 5(m) (n) and 6 of POCSO Act and Section 3(1)(w)(i) r/w 3(2)(v) of SC and ST Act and therefore this solitary case is the sole substratum of the impugned preventive detention order.
13.
This Bench is informed by the learned Additional Public Prosecutor that in the solitary case, final report has been filed within the prescribed time line and the same is now on the file of Special Court for POCSO Cases, Madurai, in Special S.C.No.48 of 2023. We make it clear that if the detenu seeks bail before the trial Court, the trial Court shall deal with the bail application on its own merits and in accordance with law untrammeled by this order which has been made for the limited purpose of testing the impugned preventive detention order in habeas legal drill on hand.
14.
Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. Page No.7 of 10
15.
Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 24.01.2023 bearing reference in No. 01/BCDFGISSSV/2023 made by the second respondent is set aside and the detenu Thiru.Vasanth, son of Balamurugan, aged 27 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.) (R.S.V., J.) 06.11.2023 Index : Yes / No : Yes / No bala P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Madurai.
To
1. The Principal Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai.
2. The Commissioner of Police, O/o. the Commissioner of Police, Madurai City.
3. The Superintendent of Prison, Central Prison, Madurai.
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4. The Inspector of Police, Tallakulam All Women Police Station, Madurai District.
5. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
6. The Joint Secretary to Government, Public (Law and Order) Department, Secretariat, Chennai.
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M.SUNDAR, J.
and R.SAKTHIVEL, J.
bala ORDER MADE IN DATED : 06.11.2023 Page No.10 of 10