Shamuvel v. The Principal Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15.11.2023 CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Shamuvel ... Petitioner vs.
1. The Principal Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai - 600009.
2. The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Virudhunagar District.
3. The Superintendent of Prison, Madurai Central Prison, Madurai 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 Cr.M.P.No. 12/2023 (Goonda) dated 03.07.2023 and quash the same and direct the respondents to produce the body or person of the detenu by name Shamuvel son of Kannan aged about 21 years, now detained at Madurai Central Prison before this Court and set him at liberty forthwith. Page No.1 of 9
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 convenience and clarity) was listed in the Admission Board on 17.10.2023, the following order was made: Page No.2 of 9
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2.
The aforementioned Admission Board order captures all essentials that are imperative for appreciating this order and therefore, we are not setting out the same again in this final order. Suffice to say that aforementioned Admission Board order shall now be read as an integral part and parcel of this final order. This also means that short forms, short references and abbreviations used in the Admission Board order will continue to be used in the instant final order also for the sake of brevity, convenience and clarity.
3.
There are two adverse cases and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.116 of 2023 on the file of Sivakasi East Police Station, for alleged offences under Sections 147, Page No.4 of 9
148 and 302 of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity] and subsequently altered into Sections 147, 148, 302, 294(b) & 341 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.
4.
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 05.04.2023 but the impugned preventive detention order has been made only on 03.07.2023 resulting in live and proximate link between grounds and purpose of detention getting snapped.
5.
Mr.Thiruvadi Kumar, learned State Additional Public Prosecutor, submits that materials had to be collected and time was consumed in this exercise.
6.
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 Page No.5 of 9
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. 7.
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. Page No.6 of 9
8.
To be noted, the first adverse case is in Crime No.195 of 2021 on the file of Sivakasi East Police Station for alleged offences under Sections 294(b), 324 and 506(ii) of IPC [alleged occurrence on 20.06.2021], second adverse case is Crime No.269 of 2022 on the file of Sivakasi East Police Station for alleged offences under Sections 294(b), 323, 324 and 506(ii) of IPC and subsequently altered into Sections 294(b), 323, 326 and 506(ii) of IPC [alleged occurrence on 18.06.2022], ground case is Crime No.116 of 2023 on the file of Sivakasi East Police Station, for alleged offences under Sections 147, 148 and 302 of IPC and subsequently altered into Sections 147, 148, 302, 294(b) & 341 of IPC [alleged occurrence on 03.04.2023] and therefore time consumed remains unexplained.
9.
Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ. 10.
Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 03.07.2023 bearing reference Cr.M.P.No.12/2023 (GOONDA) made by the second respondent is set aside and the detenu Thiru.Shamuvel, aged about 21 years, son of Page No.7 of 9
Thiru.Kannan, 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.) Index : Yes / No 15.11.2023 : Yes / No bala P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Madurai. All concerned to act on this order being uploaded in official website of this Court without insisting on certified hard copies. To be noted, this order when uploaded in official website of this Court will be watermarked and will also have a QR code.
To
1. The Principal Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai - 600009.
2. The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Virudhunagar District.
3. The Superintendent of Prison, Madurai Central Prison, Madurai 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.
Page No.8 of 9
M.SUNDAR, J.
and R.SAKTHIVEL, J.
bala ORDER MADE IN DATED : 15.11.2023 Page No.9 of 9