Murugeshwari v. The Principal Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.12.2023 Coram THE HON'BLE MR.JUSTICE M.SUNDAR and THE HON'BLE MR. JUSTICE R.SAKTHIVEL Murugeshwari .. Petitioner/Mother of the detenue vs 1.State of Tamil Nadu, Represented by its Principal Secretary to Government, Government of Tamil Nadu, Home, Prohibition & Excise Department, Chennai - 9.
2.The Commissioner of Police, Madurai City, Madurai.
3.The Superintendent, Central Prison, Madurai.
.. Respondents 1/11
Prayer:- Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Habeas Corpus to call for the records pertaining to the proceedings of the second respondent made in his proceedings in No.82/BCDFGISSSV/2023 dated 04.10.2023 and quash the same and set petitioner's son by name ''Umayakumar @ Periya Eli, S/o.Sekar, aged about 23 years'' at liberty from the Superintendent, Central Prison, Madurai.
For Petitioner :
Mr.C.Karthikeya For Respondents :
Mr.A.Thiruvadi Kumar Additional Public Prosecutor
ORDER
[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] came up for admission on 21.11.2023, this Bench made an order and a scanned reproduction of the same is as follows:
2/11
3/11
4/11
2.The aforementioned 21.11.2023 Admission Board order captures all essentials, i.e., all facts that are imperative for appreciating the final order and therefore, we are not setting out the facts again in this final order. Suffice to say that aforementioned Admission Board order shall be read as an integral part and parcel of this final order. Be that as it may, abbreviations, short forms and short references used in the Admission Board order will continue to be used in this order also for the sake of convenience and clarity.
5/11
3.There are three adverse cases and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.353 of 2023 on the file of B5 South Gate Police Station for alleged offences under Sections 392 read with 397 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and Section 25(1)(a) read with Section 5 of Arms Act, 1959. 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 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 10.08.2023 but the impugned preventive detention order has been made only on 04.10.2023 resulting in 'live and proximate link' between grounds of detention and purpose of detention getting snapped.
6/11
5.Mr.A.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. 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 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 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil Nadu and 2023/MHC/733, Sangeetha Vs. The Secretary to the Government and 2023:MHC:1110, N.Anitha Vs. The Secretary to Government and 2023:MHC:1159 and a series of similar orders in HCP cases. 8.To be noted, out of the three adverse cases, the first adverse case is in Crime No.1066 of 2021 on the file of V2 Avaniyapuram Police Station (occurrence was on 08.09.2021), second adverse case is in Crime No.620 of 2022 on the file of B6 Jainhindpuram Police Station (occurrence was on 21.12.2022) and third adverse case is in Crime No.238 of 2023 on the file of B6 Jaihindpuram Police Station (occurrence was on 15.05.2023) and therefore time consumed remains unexplained.
8/11
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 04.10.2023 bearing reference No.82/BCDFGISSSV/2023 made by the second respondent is set aside and the detenu Thiru.Umayakumar @ Periya Eli, aged 23 years, son of Thiru.Sekar, 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.) 20.12.2023 Index : Yes ps Post Script: (i) Registry to forthwith communicate this order to Jail authorities in Central Prison, Madurai.
(ii) All concerned to act on this order being uploaded in official website of this Court without insisting on certified copies. To be noted, this order when uploaded in official website of this Court will be watermarked and will also have a QR code. 9/11
To 1.The Principal Secretary to Government, Government of Tamil Nadu, Home, Prohibition & Excise Department, Chennai - 9.
2.The Commissioner of Police, Madurai City, Madurai.
3.The Superintendent, Central Prison, Madurai.
4.The Joint Secretary to Government, Public (Law and Order) Department, Secretariat, Chennai.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
10/11
M.SUNDAR, J., and R.SAKTHIVEL, J., ps 20.12.2023 11/11