Esakki Subbiah Dass v. The Additional Chief Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.(MD)No.828 of 2023 Esakki Subbiah Dass : Petitioner Vs.
1.State of Tamil Nadu, Rep. by the Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police, Tirunelveli City, Tirunelveli.
3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.
: Respondents PRAYER: 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 No.24/BCDFTISSSV/2023 dated 17.04.2023
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 Esakki Subbiah Dass, aged about 24 years, S/o.Nellaiappan, now detained at the Central Prison, Palayamkottai before this Hon'ble Court and set him at liberty forthwith.
For Petitioner : Mr.N.Pragalathan For Respondents : Mr.A.Thiruvadi Kumar 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] was listed in the Admission Board on 10.07.2023 before Hon'ble Coordinate Division Bench and the following order was made:
2. Therefore, in this final order, it has become necessary to set out factual matrix in a nutshell.
3. Captioned HCP has been filed by the detenu assailing a 'preventive detention order dated 17.04.2023 bearing No.
24/BCDFGISSSV/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience]. To be noted, sponsoring authority has not been arrayed as a respondent but we find that 'Station House Officer of Tirunelveli Junction Police Station' is the sponsoring authority [hereinafter 'Sponsoring Authority' for the sake of convenience and clarity] and second respondent is the detaining authority as impugned preventive detention order has been made by second respondent.
4. 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.
5. There is no adverse case. The ground case which constitutes sole substratum of the impugned preventive detention order is Crime No.79 of 2023 on the file of Tirunelveli Junction Police Station registered under Sections 341, 294(b), 324, 307 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] which was subsequently, altered into Sections 341, 294(b), 324, 307 and 506(ii) IPC and Sections 3(1)(r), 3(1)(s) and 3(2)(v) of 'Schedule Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015' [hereinafter 'SC/ST PoA Act' for the sake of convenience and clarity] and later altered into Sections 341, 294(b), 324, 307, 506(ii), 147, 148 and 120(B) of IPC and Sections 3(1)(r), 3(1)(s) and 3(2)(v) of SC/ST PoA Act. Considering the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix of the case.
6. Mr.N.Pragalathan, learned counsel on record for HCP petitioner and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all respondents are before us.
7. When the captioned HCP was in the final hearing board in 16.10.2023 listing, the following proceedings were made: 'Mr.N.Pragalathan, learned counsel for HCP petitioner commenced his submission by saying that subjective satisfaction arrived at by the Detaining Authority is impaired, as the detenu has not moved any bail application in the solitary case, which constitutes the substratum of the impugned preventive detention order. Learned counsel submitted that without any statement from any relative and/or any special report from the Sponsoring Authority such subjective satisfaction has been recorded.
2. Learned Additional Public Prosecutor submitted that post Rekha's case (Rekha Vs. State of Tamil Nadu reported in (2011) 5 SCC 244) there have been two other judgments rendered by Hon'ble Supreme Court and wanted to make submissions.
3. List on 30.10.2023.'
8. However, today, Mr.N.Pragalathan, learned counsel for HCP petitioner changed his line of attack and submitted that impugned preventive detention order does not pass muster qua acting in any manner prejudicial to the maintenance of public order. In other words, it is the pointed argument of learned counsel for HCP petitioner that there is nothing to demonstrate that detenu in the case on hand has acted in any manner
prejudicial to the maintenance of public order. Learned counsel emphasised that impugned preventive detention order in the captioned HCP has been made on the basis of a solitary case. To put it differently one solitary case constitutes the substratum of the impugned preventive detention order is learned counsel's say.
9. In response to the public order point, learned Additional Public Prosecutor drew our attention of this Court to the following portion of the grounds of impugned preventive detention order in sub-paragraph (i) of paragraph 2 thereat. This portion of paragraph 2(i) of grounds of impugned preventive detention order reads as follows:
'.........On seeing this, those who were in the houses of that street closed their house doors hastily out of fear. Those who were going by that street scattered and ran towards all the four directions......'
10. Learned Additional Public Prosecutor submitted that the aforementioned two sentences in the grounds of impugned preventive detention order are good enough to demonstrate that the detenu has acted in a manner prejudicial to maintenance of public order.
11. Learned counsel for HCP petitioner responding to the above argument pressed into service V.Kalaiselvi Thangam's case [V.Kalaiselvi Thangam Vs. The Additional Chief Secretary to Government and two others] reported in 2023/MHC/5092 [H.C.P.(MD)No.1008 of 2023, dated 01.11.2023]. A scanned reproduction of Kalaiselvi Thangam's case as reported in Nuetral Website portal of this Court is as follows:
12. We have carefully considered the rival submissions.
13. We find that in Kalaiselvi Thangam's case, there was only one sentence in the grounds of impugned preventive detention order which says that 'On seeing this incident those who were in the temple ran outside with hue and cry out of fear'. To be noted, this is extracted and reproduced in paragraph 5 of Kalaiselvi Thangam's case. In the case on hand, the aforementioned two sentences pointed out by learned Additional Public Prosecutor find place in paragraph 2(i) of the grounds of impugned preventive detention order. In all other aspects, Kalaiselvi Thangam's case and the case on hand are clearly comparable. Therefore, applying Kalaiselvi Thangam's case principle, we conclude that the impugned preventive detention order is liable to be dislodged on the ground that it does not pass muster when it comes to the question as to whether there is enough material to demonstrate that the detenu has acted in any manner prejudicial to the maintenance of public order within the meaning of Section 2(a)(iii) of Act 14 of 1982.
14. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 17.04.2023 bearing reference No. 24/BCDFGISSSV/2023 made by the second respondent is set aside and the detenu Thiru.Esakki Subbiah Dass, male, aged 24 years, son of Thiru.Nellaiappan, 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.] 20.11.2023 Index : Yes vsm Post Script:
(i) Registry to forthwith communicate this order to Jail authorities in Central Prison, Palayamkottai.
(ii)All concerned to act on this order being uploaded in official website of this Court without insisting on certified copies. To be noted, this order when uploaded in official website of this Court will be watermarked and will also have a QR code.
M.SUNDAR, J.
and R.SAKTHIVEL, J.
vsm To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police, Tirunelveli City, Tirunelveli.
3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.
4.Joint Secretary to Government, Public (Law and Order) Department, Secretariat, Chennai.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
H.C.P.(MD)No.828 of 2023 20.11.2023