Abinaya v. The Principal Secretary To The 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.889 of 2023 Abinaya : Petitioner Vs.
1.The State of Tamil Nadu Rep. By the Principal Secretary to the Government, Prohibition & Excise Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police, Tiruchirappalli City, Tiruchirappalli District.
3.The Superintendent of Prison, Tiruchirappalli Central Prison, Tiruchirappalli District.
4.The Inspector of Police, All Women Police Station, Contonment, Tiruchirappalli District.
(Crime No.12 of 2023) : Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the records pertaining to the Detention order passed by the 2nd respondent dated 17.05.2023 with reference No.C.No.44/Detention/C.P.O/T.C/2023 and set aside the same and direct the respondents to produce the petitioner's husband Prabin Christal Raj, Son of Packiaraj, aged 41 years, now confined in the Central Prison, Tiruchirappalli before this Hon'ble Court and set him at liberty. For Petitioner : Mr.P.Jesus Moris Ravi 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.P.Jesus Moris Ravi, learned counsel on record for HCP petitioner is before us on a Video Conferencing platform [VC] and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all respondents is before us in the physical Court. To be noted, this is a hybrid hearing.
5. Captioned HCP has been filed by the wife of the detenu assailing a 'preventive detention order dated 17.05.2023 bearing reference C.No. 44/Detention/C.P.O/T.C/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience]. To be noted, fourth respondent 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.
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 'Sexual Offender' within the meaning of Section 2(ggg) of Act 14 of 1982.
7. There is no adverse case. The ground case which constitutes sole substratum of the impugned preventive detention order is Crime No.12 of 2023 on the file of All Women Police Station, Cantonment registered under Section 366A of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and Sections 5(l) r/w 6(1), 16 r/w 17 of 'the Protection of Children from Sexual Offences Act, 2012 (No.32 of 2012)' [hereinafter 'POCSO Act' for the sake of convenience and clarity] and Section 4(1), 4(2)(a), 5(1)(a) ITP Act, 1956 and Sections 9, 10 and 11 of Child Marriage Act, 2006. 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 12.04.2023 but the impugned preventive detention order has been made only on 17.05.2023 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.12 of 2023 on the file of All
Women Police Station, Cantonment registered under Section 366A of IPC and Sections 5(l) r/w 6(1), 16 r/w 17 of POCSO Act and Section 4(1), 4(2) (a), 5(1)(a) ITP Act, 1956 and Sections 9, 10 and 11 of Child Marriage Act, 2006 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 ground case, final report has been filed within the prescribed time line and the same is now on the file of Mahila Court, Trichy in Spl.S.C.No.66 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 untrammelled 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.
15. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 17.05.2023 bearing reference C.No. 44/Detention/C.P.O/T.C/2023 made by the second respondent is set aside and the detenu Thiru.Prabin Christal Raj, male, aged 41 years, son of Packiaraj, 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 P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Tiruchirappalli.
M.SUNDAR, J.
and R.SAKTHIVEL, J.
vsm To 1.The State of Tamil Nadu Rep. By the Principal Secretary to the Government, Prohibition & Excise Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police, Tiruchirappalli City, Tiruchirappalli.
3.The Superintendent of Prison, Tiruchirappalli Central Prison, Tiruchirappalli District.
H.C.P.(MD)No.889 of 2023 4.The Inspector of Police, All Women Police Station, Contonment, Tiruchirappalli District.
5.Joint Secretary to Government, Public (Law and Order) Department, Secretariat, Chennai.
6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
30.10.2023