P.Pappa v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.10.2023 Coram THE HON'BLE MR.JUSTICE M.SUNDAR and THE HON'BLE MR. JUSTICE R.SAKTHIVEL P.Pappa .. Petitioner vs 1.State of Tamil Nadu, Rep. By the Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The District Collector and District Magistrate, Kanniyakumari District, Nagercoil.

3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District.

.. Respondents Prayer:- 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 passed in P.D.No.21 of 2023, dated 14.04.2023 on the file of the 2nd respondent herein and quash the same and direct the respondents to produce the detenu or body of the detenu namely the petitioner'shusband I.e., Esack @ Sam Issac @ Sam Esack, aged about 37 1/8

years, S/o.Selvaraj, now detained at the Central Prison, Palayamkottai, before this Court and set him at liberty forthwith.

For Petitioner :

Mr.N.Pragalathan For Respondents :

Mr.A.Thiruvadi Kumar, Additional Public Prosecutor

ORDER

[Order of the Court was made by M.SUNDAR, J.] This 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by the wife of the detenu assailing a 'preventive detention order dated 14.04.2023 bearing reference P.D.No.21/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience]. To be noted, second respondent is the detaining authority as impugned preventive detention order has been made by second respondent. To be noted, sponsoring authority has not been arrayed as a respondent but we find that 'Station House Officer of Aralvoimozhy Police Station' is the sponsoring authority [hereinafter 'Sponsoring Authority' for the sake of convenience and clarity].

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2. Impugned preventive 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 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.

3. There is one adverse case and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.54 of 2023 on the file of Aralvoimozhy Police Station for alleged offences under Sections 341 and 302 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] which was subsequently altered into Sections 147, 148, 341, 294(b) and 302 IPC. Considering the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix of the case.

4. Mr.N.Pragalathan, learned counsel on record for petitioner and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all respondents are before us.

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5. Learned counsel for petitioner submitted that 'live and proximate link' between the grounds of detention and purpose of detention has snapped as date of remand in the ground case is 21.02.2023 but the impugned preventive detention order has been made only on 14.04.2023.

6. Mr.A.Thiruvadi Kumar, 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 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. 4/8

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.

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 similar orders in HCP cases.

9. To be noted, the adverse case is in Crime No.265 of 2022 on the file of Vadasery Police Station (occurrence was on 24.10.2022) for alleged offences under Section 147, 148, 294(b), 506(ii) and 307 IPC which was subsequently altered into Sections 147, 148, 294(b), 307, 506(ii) r/w 149 IPC and therefore time consumed remains unexplained. 5/8

10. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.

11. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 14.04.2023 bearing reference P.D.No.21/2023 made by the second respondent is set aside and the detenu Thiru.Esack @ Sam Issac @ Sam Esack, aged 37 years, son of Thiru.Selvaraj, 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.) 16.10.2023 Index : Yes vsm P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Palayamkottai.

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To 1.The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The District Collector and District Magistrate, Kanniyakumari District, Nagercoil.

3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District.

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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M.SUNDAR, J., and R.SAKTHIVEL, J., vsm 16.10.2023 8/8