A.Divya v. The Prl. Secretary To Govt
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.07.2018
CORAM:
THE HONOURABLE Mr. JUSTICE C.T.SELVAM and THE HONOURABLE Mr. JUSTICE A.M.BASHEER AHAMED H.C.P.(MD)No.812 of 2018 A.Divya ... Petitioner Vs.
1.State of Tamil Nadu, Rep.by The Principal Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Fort St.George, Chennai - 600 009.
2.The District Collector and District Magistrate, O/o.The District Collector and District Magistrate, District Magistrate, Perambalur District, Perambalur.
3.The Superintendent of Police, Central Prison, Tiruchirapalli.
... Respondents PRAYER: The petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the entire records connected with the detention order passed in Cr.M.P.No.14/2018 dated 03.06.2018 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the petitioner's husband namely, Selvaraj @ Abdul Rahman, son of Pitchai @ Abdul Khadar, male, aged 35 years, who is detained in Central Prison, Tiruchirappalli before this Court and set him at liberty forthwith.
For Petitioner : Mr.K.A.S.Prabhu For Respondents : Mr.V.Neelakandan, APP
ORDER
(Order of the Court was made by C.T.SELVAM,J.) Petitioner is the wife of the detenu - Selvaraj @ Abdul Rahman, son of Pitchai @ Abdul Khadar. Detenu has been detained
by the second respondent by his order in Cr.M.P.No.14/2018 dated 03.06.2018, holding him to be a "Goonda", as contemplated under Section of 2(f) of the Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition. 2.We have heard learned counsel for petitioner and learned Additional Public Prosecutor for respondents. We have also perused the records produced by the Detaining Authority. 3.Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel for petitioner would mainly focus on the ground that there is gross violation of procedural safeguards, which would vitiate the detention. Learned counsel, by placing authorities, submitted that the arrest of the detenu in the ground case has been intimated by S.M.S. and that the fact of intimation of arrest of the detenu to his family members finds no support in the booklet produced.
4.Larned Additional Public Prosecutor opposed the Habeas Corpus petition. He would submit that though the arrest of detenu has been intimated through S.M.S., on the score alone, the impunged detention order cannot be quashed. According to the learned Additional Public Prosecutor, no prejudice has been caused to the detenu and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.
5.It is a case, among other grounds, where the learned counsel for the petitioner would urge that the arrest of the detenu in the ground case has not been intimated to the family members or the relatives or to the known persons of the detenu as per the procedure laid down. It is seen that arrest of accused has been intimated through S.M.S. Such act offences the decision of this Court in H.C.P.No.1897 of 2015 dated 21.09.2015 in the matter of Murugeswari V. The State of Tamil Nadu, Rep.by its Secretary to Government, Home, Prohibition & Excise Department and others. Therefore, the respondents have failed to satisfy this Court on due compliance of Section 50(2) of Cr.P.C., which vitiates the dictum of Hon'ble Apex Court in D.K.Basu Vs. State of West Bengal reported in AIR 1997 SC 610.
6. In view of the above decision rendered by the Division Bench of this Court and the decision of the Hon'ble Apex Court in D.K.Basu's case, this Court is of the view that the detention order is unsustainable in law on the ground of intimation of arrest not made effictively, and therefore, the right conferred upon the detenu to impugne the arrest effected on him is affect. Hence, the detention order is liable to set aside. 7.In the result, the Detention Order, passed by the second
respondent, in his proceedings in Cr.M.P.No.14/2018 dated 03.06.2018 is quashed. The detenu, namely, Selvaraj @ Abdul Rahman, son of Pitchai @ Abdul Khadar, is ordered to be set at liberty forthwith, if his detention is not required in connection with any other case. Accordingly, we allow the Habeas Corpus Petition.
Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar (CS-IV) To
1. The Principal Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Fort St.George, Chennai - 600 009.
2. The District Collector and District Magistrate, O/o.The District Collector and District Magistrate, District Magistrate, Perambalur District, Perambalur.
3. The Superintendent of Police, Central Prison, Tiruchirapalli.
4. The Joint Secretary to Government, Public (Law and Order), Fort.St.George, Chennai - 9.
5. The Addl.Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
+ 1 CC TO Mr.K.A.S.PRABHU, ADVOCATE IN SR No. 72969 NBJ TE/RP/SAR-4 : 07/08/2018 : 3P/7C H.C.P.(MD)No.812 of 2018 16.07.2018