V. Sudha v. The Additional Chief Secretary To The Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.01.2020

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA AND THE HONOURABLE MR.JUSTICE B.PUGALENDHI V.Sudha ... 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 District Collector and District Magistrate, O/o. The District Collector and District Magistrate, Ariyalur District, Ariyalur.

3.The Superintendent, Central Prison, Tiruchirappalli.

... Respondents Prayer : Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Habeas Corpus to call for the entire records in detention order passed in Cr.M.P.No.25/2019 dated 02.09.2019 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's husband namely Vijayakumar, S/o. Chandirahasan, male, aged 37 years, who is detained in Central Prison, Tiruchirappalli before this Hon'ble Court and set him at liberty.

For Petitioner : Mr.K.A.S.Prabhu For Respondents : Mr.K.Dinesh Babu Additional Public Prosecutor

ORDER

(Order of the Court was made by T.RAJA,J.) The petitioner is the wife of the detenu and challenging the legality of the impugned order of detention dated 02.09.2019, passed 1/4

by the second respondent, under Section 3(1) of 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 14 of 1982) and branding him as 'Goonda' in Cr.M.P.No.25/2019, came forward to file the present Habeas Corpus Petition.

2.A perusal of the Grounds of Detention dated 02.09.2019, passed by the 2nd respondent herein, would disclose among other things that the detenu, viz., Vijayakumar was involved in a solitary case for the commission of offences under Sections 147, 148, 341, 302 and 506(ii) I.P.C. in Keelapalur Police Station Crime No.143 of 2019 (ground case). The detenu was arrested on 11.07.2019 and produced before the Court of Judicial Magistrate No.II, Ariyalur. The detaining authority on being satisfied with the materials placed by the sponsoring authority that the activities of the detenu are prejudicial to the maintenance of public order, clamped the order of detention and making a challenge to the same, the present Habeas Corpus Petition has been filed by the petitioner. 3.We have heard Mr.K.A.S.Prabhu, learned counsel appearing for the petitioner and Mr.K.Dinesh Babu, learned Additional Public Prosecutor appearing for the respondents and perused the materials available on record.

4.Though several grounds have been raised in the Habeas Corpus Petition including the one that the detaining authority cannot arrive at a subjective satisfaction that there is no real possibility of the detenu coming out on bail when the detenu has not moved any bail application, learned counsel for the petitioner would mainly focus his argument on the ground that there is gross violation of procedural safeguards, which would vitiate the detention. Learned counsel appearing for the petitioner drawing our attention to page No.39 of the booklet submitted that after the arrest of the accused in ground case in Crime No.143 of 2019, the arrest intimation was not communicated to the family members of the detenu and though the arrest intimation was said to have been sent to the mobile No.

9786742224 through SMS, the person to whom the message was sent to the said mobile number has not been identified and besides the signature of the concerned person has also not been obtained, therefore, in the light of the non-communication of the arrest intimation, to the family members of the detenu the mandatory guidelines given by the Hon'ble Apex Court reported in AIR (1997) SC 610 [D.K. Basu v. State of West Bengal] is violated and as such, the impugned order of detention is liable to be quashed. 5.In support of his submission, the learned counsel appearing for the petitioner has relied on an unreported order of this Court dated 07.06.2019 made in H.C.P.(MD) No.

Natarajan v. State of Tamil Nadu, rep. by The Principal Secretary to Government and two others, in which one of us (B.PUGALENDHI, J) was a party. The relevant portion of the order runs thus: "8.As rightly pointed out by the learned counsel appearing for the petitioner, perusal of page No.20 of the booklet would disclose that though the arrest intimation was given to his wife/Kavitha through mobile No.8012668200, neither the text of the intimation given nor the signature of the person, has been found place, hence the same is in violation of D.K. Basu v. State of West Bengal reported in AIR (1997) SC 610 and hence, on the sole ground, the impugned order of detention is liable to be quashed."

6.Though we have heard the learned Additional Public Prosecutor appearing for the respondents, we are unable to find any explanation as to why the arrest intimation was not communicated to the family members of the detenu. Further, page No.39 of the booklet shows neither the text of the intimation is given nor the signature of the person, who is said to have been informed has been obtained. That clearly shows that the arrest intimation was not given to the family members of the detenu, hence, the non-communication of the arrest intimation violates the guidelines given by the Hon'ble Apex Court reported in AIR (1997) SC 610 [D.K. Basu v. State of West Bengal] and as such, the impugned order of detention is liable to be set aside.

7.The Hon'ble Apex Court in Rekha v. State of T.N. reported in (2011) 5 SCC 244 has ruled that the preventive detention is, by nature repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). It may be mentioned herein that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. When the detaining authority passes the order of detention on subjective satisfaction, as per clause (3) of Article 22 the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. Such article excludes the applicability of clauses (1) and (2). However, to prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital.

8.The exclusion of applicability of clauses (1) and (2) of Article 22 does not mean that the arrest of detenu should not be informed to his family members, which is sine qua non, therefore, the non-compliance would vitiate the very detention itself. Applying this ratio here, we hold that the non-compliance of the mandatory condition that the family members of the detenu should be informed 3/4

of his arrest having not been done in this case, would vitiate the very detention itself. Accordingly, on this sole ground, the detention order is liable to fall.

9.In the result, the Habeas Corpus Petition is allowed by setting aside the Order of Detention passed by the second respondent herein, namely, the District Collector and District Magistrate, Ariyalur District in Cr.M.P.No.25/2019 dated 02.09.2019. Consequently, the detenu, namely, Vijayakumar, son of Chandirahasan, aged about 37 years, who is now detained at Central Prison, Tiruchirappalli is directed to be released forthwith unless his presence [or] custody [or] detention is required in connection with any other case/proceedings.

Sd/- Assistant Registrar (CS-I) // True Copy // / /2020 Sub Assistant Registrar(CS) sj To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, State of Tamil Nadu, Secretariat, Chennai - 600 009.

2.The District Collector and District Magistrate, O/o. The District Collector and District Magistrate, Ariyalur District, Ariyalur.

3.The Superintendent, Central Prison, Tiruchirappalli. 4.The Joint Secretary to Government, Public (Law and Order), Fort St. George, Chennai - 9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

06.01.2020 JMN(30.01.2020) 4P : 6C 4/4