Syed Ali Fathima v. The Principal Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.11.2023 CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Syed Ali Fathima ... Petitioner vs.
1. The Principal Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600009.
2. The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Tenkasi District, Tenkasi.
3. The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
... Respondents 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 of the respondent No.2 in M.H.S.Confdl No.55/2023 dated 13.07.2023 and quash the same and direct the respondents to produce the body or person of the detenu by name Muhamed Ansari son of Buhari, aged about 46 years, now detained Page No.1 of 10
as ''Sexual Offender'' at Palayamkottai Central Prison before this Court and set him at liberty forthwith.
For Petitioner : Mr.R.Alagumani 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 04.08.2023, a Hon'ble Coordinate Division Bench made the following order in the Admission Board:
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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.R.Alagumani, learned counsel on record for petitioner and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all respondents are before us.
5.
Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] has been filed by the wife of the detenu assailing the 'preventive detention order dated 13.07.2023 bearing reference M.H.S.Confdl No.55/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience]. To be noted, sponsoring authority has not been arrayed as a respondent and we find that Station House Officer of Courtallam Police Station, is the sponsoring authority [hereinafter 'sponsoring authority' for convenience and brevity] and second respondent is the detaining authority as impugned preventive detention order has been made by second respondent. Page No.3 of 10
6.
Impugned 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.
The ground case which constitutes sole substratum of the impugned preventive detention order is Crime No.168 of 2023 on the file of Courtallam Police Station, for alleged offences under Sections 12 read with 11(1) of Protection of Children from Sexual Offences Act, 2012 [hereinafter 'POCSO Act' for brevity] and Section 323 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and subsequently alered into Sections 9(f), 10, 11(i) read with 12 of POCSO Act and Section 352 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.
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8.
In the final hearing today, learned counsel predicated his campaign against the impugned preventive detention order on the point that the detenu was arrested on 09.06.2023 but the impugned preventive detention order has been made only on 13.07.2023 resulting in live and proximate link between grounds and purpose of detention getting snapped.
9.
Mr.Thiruvadi Kumar, learned State Additional Public Prosecutor, submits that materials had to be collected and time was consumed in this exercise.
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 Page No.5 of 10
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 reported vide Neutral Citation of Madras High Court being 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil Nadu and others reported vide Neutral Citation of Madras High Court being 2023/MHC/733, Sangeetha 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. 12.
To be noted, the impugned preventive detention order is predicated on a solitary case viz., Crime No.168 of 2023 on the file of Page No.6 of 10
Courtallam Police Station, for alleged offences under Sections 12 read with 11(1) of Protection of Children from Sexual Offences Act, 2012 [hereinafter 'POCSO Act' for brevity] and Section 323 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and subsequently alered into Sections 9(f), 10, 11(i) read with 12 of POCSO Act and Section 352 of IPC 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 solitary case, final report has been filed belatedly. 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 untrammeled 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. Page No.7 of 10
15.
Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 13.07.2023 bearing reference in M.H.S.Confdl No.55/2023 made by the second respondent is set aside and the detenu Thiru.Muhamed Ansari, son of Buhari, aged 46 years, 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.) 06.11.2023 Index : Yes / No : Yes / No bala P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Palayamkottai.
To
1. The Principal Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600009.
2. The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Tenkasi District, Tenkasi.
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3. The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
5. The Joint Secretary to Government, Public (Law and Order) Department, Secretariat, Chennai.
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M.SUNDAR, J.
and R.SAKTHIVEL, J.
bala ORDER MADE IN DATED : 06.11.2023 Page No.10 of 10