Sumathi v. The Principal Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.10.2023

CORAM:

THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.(MD)No.891 of 2023 Sumathi : Petitioner Vs.

1.The State rep. By, The Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The Commissioner of Police, Trichy City, Trichy.

3.The Superintendent, Central Prison, Trichy.

4.The Inspector of Police, Ponmalai Police Station, Trichy City.

: Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the records relating to the

impugned order of detention made in C.No.47/Detention/C.P.O/TC/2023, dated 22.05.2023 on the file of the Commissioner of Police, Trichy City, the 2nd respondent herein, branding the petitioner's husband / detenu by name Kumar @ Ramkumar, S/o.Kaliyaperumal, aged about 38 years as 'GOONDA' who is now confined in Central Prison, Trichy and quash the impugned order of detention and set the detenu at liberty by producing him before this Court.

For Petitioner : Mr.T.J.Ebenezer Charles 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 19.07.2023, a Hon'ble Coordinate Division Bench made the following order in the Admission Board:

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.T.J.Ebenezer Charles, learned counsel on record for petitioner and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all respondents are before us.

5. Captioned HCP has been filed by the wife of the detenu assailing a 'preventive detention order dated 22.05.2023 bearing C.No.

47/Detention/C.P.O/TC/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as impugned preventive detention order has been made by second respondent.

6. 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.

7. There is no adverse case. The ground case which constitutes the sole substratum of the impugned preventive detention order is Crime No. 187 of 2023 on the file of Ponmalai 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 341, 302 and 120(B) of 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.

8. In the support affidavit qua captioned HCP several grounds have been raised but learned Counsel for petitioner predicated his campaign against the impugned Preventive Detention Order on the point that the detenu was arrested on 08.04.2023 but the impugned preventive detention order has been made only on 22.05.2023 resulting in live and proximate link between grounds and purpose of detention getting snapped.

9. Mr.Thiruvadi Kumar, learned State Additional Public Prosecutor, submits 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.

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 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 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 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.187 of 2023 on the file of Ponmalai Police Station for alleged offences under Sections 341 and 302 of of IPC, which was subsequently altered into Sections 341, 302 and 120(B) of IPC and therefore this solitary case is the sole substratum of the impugned preventive detention order.

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

14. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 22.05.2023 bearing reference C.No. 47/Detention/C.P.O/TC/2023 made by the second respondent is set aside and the detenu Thiru.Kumar @ Ramkumar, male, aged 38 years, son of Thiru.Kaliyaperumal, 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.] vsm 30.10.2023 Index : Yes/No P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Tiruchirappalli.

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

2.The Commissioner of Police, Trichy City, Trichy.

3.The Superintendent of Prison, Central Prison, Trichy.

4.The Inspector of Police, Ponmalai Police Station, Trichy City.

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

M.SUNDAR, J.

and R.SAKTHIVEL, J.

vsm H.C.P.(MD)No.891 of 2023 30.10.2023