Madras High Court
Muniyammal vs The Secretary To The Government on 20 April, 2023
Bench: M.Sundar, M.Nirmal Kumar
HCP No.2340 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.04.2023
Coram
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
H.C.P. No.2340 of 2022
Muniyammal .. Petitioner
Vs.
1.The Secretary to the Government,
Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Secretariat, Fort St.George, Chennai-600 009.
2.The District Collector and District Magistrate,
Tiruvannamalai District, Tiruvannamalai.
3.The Superintendent of Police,
Tiruvannamalai District, Tiruvannamalai.
4.The Inspector of Police,
Prohibition Enforcement Wing,
Cheyyar, Tiruvannamalai District.
5.The Superintendent of Prison,
Central Prison, Vellore. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of habeas corpus to call for the entire
records connected with the order of the second respondent herein in
D.O.No.104/2022-C2 dated 04.11.2022 passed against the
petitioner's husband the detenu namely Mani @ Kurutu Mani, son of
Munusamy, aged about 59 years, who is confined at Central Prison,
Vellore and set aside the same, consequently directing the
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HCP No.2340 of 2022
respondents herein to produce the body and person of the detenu
before this Court and set him at liberty forthwith.
For Petitioner : Mr.A.Murugavel
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
Assisted by Mr.M.Sylvester John
ORDER
[Order of the Court was made by M.NIRMAL KUMAR, J.] Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and brevity] has been filed by the wife of the detenu assailing a 'preventive detention order dated 04.11.2022 bearing reference D.O.No.104/2022-C2' [hereinafter 'impugned detention order' for the sake of convenience]. To be noted, the fourth respondent is the sponsoring authority and the second respondent is the detaining authority as impugned detention order has been made by the second respondent.
2.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] https://www.mhc.tn.gov.in/judis 2/8 HCP No.2340 of 2022 on the premise that the detenu is a 'Bootlegger' within the meaning of Section 2(b) of Act 14 of 1982.
3. There are two adverse cases. The ground case which is the sole substratum of the impugned detention order is Crime No.578 of 2022 on the file of Cheyyar Prohibition Enforcement Wing for alleged offences under Section 4(1)(aaa) r/w 4(1-A)(ii) of Tamil Nadu Prohibition Act, 1937 and Rules 6 and 7 of Rectified Spirit Rules, 2000. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.A.Murugavel, learned counsel for petitioner and Mr.R.Muniyapparaj, learned Additional Public Prosecutor assisted by Mr.M.Sylvester John learned counsel for respondents are before us.
5. Learned counsel for petitioner predicated his campaign against the impugned detention order on one short point and that is, in the Arrest memo it is recorded that the arrest of the detenu was informed to his daughter one Ranjitham through her mobile bearing No.9080476364 by way of SMS. He further submitted that this would not be a communication of arrest, more so, there is no https://www.mhc.tn.gov.in/judis 3/8 HCP No.2340 of 2022 statement recorded from the said Ranjitham to confirm as to whether she received the arrest intimation, thereby hampered the right of the detenu to make an effective representation.
6. The learned Additional Public Prosecutor submitted that the petitioner has not made any such representation now putforth before this Court. Hence, the above contention may not be considered.
7. The Hon'ble Division Bench of this Court in the case of “Akilandeswari Vs. State, rep. by Secretary to Government, Home, Prohibition and Excise Department, Chennai-600009, reported in 2008 (3) MLJ (Crl.) 744”, held as follows:
“5. Though the learned Additional Public Prosecutor has made an attempt to justify by stating that the family members were intimated through telegrams, he has not placed any material to satisfy this Court as to whether any telegram was sent and the same was acknowledged either by the family members or relatives of the detenu. A right of intimation to the relatives or family members of the detenu encompasses itself the fundamental right guaranteed under Article 22(5) of the Constitution of India to make a representation to the Detaining Authority or the State Government, as the case may https://www.mhc.tn.gov.in/judis 4/8 HCP No.2340 of 2022 be. In the event the arrest is not intimated, the detenu would not be in a position to make any such representation and in that context, failure on the part of the Detaining Authority would amount to deprivation of the right of the detenu to make an effective representation guaranteed under Article 22(5) of the Constitution of India. On the facts of this case, a specific averment has been made that the intimation was not given. We also find that the said averment has not been controverted in the Counter Affidavit. Though the learned Additional Public Prosecutor submitted that the family members of the detenu were informed of the arrest through telegram, there are no materials placed before us to substantiate the said contention. Further, the copy of the telegram has also not been furnished to the detenu. In the absence of the same, we are unable to accept the contention of the learned Additional Public Prosecutor that the family members or the relatives of the detenu were informed of the arrest. Under these circumstances, the detention order is vitiated.”
8. Following Akilandeswari Case (cited supra), this Court in the case of “Ganesh @ Lingesan Vs. State of Tamil Nadu and another reported in 2012 (3) MWN (Cr.) 315 DB”, in paragraph No.10, held as follows:
“10. “No man shall be deprived of his life and liberty except by procedure established by law” has been https://www.mhc.tn.gov.in/judis 5/8 HCP No.2340 of 2022 guaranteed in Article 21 of the Constitution of India. His right to be informed of the arrest is his basic human right. Curtailment of his personal freedom in pursuance of a preventive detention law though has the constitutional sanction (see Article 22(3)(b) of the Constitution of India), it is conditioned by many constraints, one of which is a chance for him to make representation as against his detention. (see Article 22(5) of the Constitution of India).
If his arrest is not informed to his dear and near ones, who could make representation as against the detention order on his behalf, he cannot exercise the right given to him under Article 22(5) of the Constitution of India. In this constitutional perspective, the argument of the Respondent that by non-supply of a copy of the telegram informing his arrest no prejudice is caused to the detenu is too big a pill to gulp.”
9. In this case, the arrest intimation is through Short Message Service (SMS). The reason given is not acceptable, proper intimation has to be given to the detenu and the detenu must know the reason for his arrest. Further, right of the detenu to make an effective representation qua the preventive detention order is a constitutional safeguard ingrained in Clause (5) of Article 22 of the Constitution of India. In the light of the narrative thus far, this constitutional safeguard is hampered. The sequitur is, the impugned preventive detention order deserves to be dislodged. https://www.mhc.tn.gov.in/judis 6/8 HCP No.2340 of 2022
10. Ergo, the sequitur is, captioned HCP is allowed and the detention order dated 04.11.2022 bearing reference D.O.No.104/2022-C2 made by the second respondent is set aside and the detenu Thiru.Mani @ Kurutu Mani, aged 59 years, son of Thiru.Munusamy is directed to be set at liberty forthwith unless required in connection with any other case. There shall be no order as to costs.
(M.S,J.) (M.N.K.,J.)
20.04.2023
Index : Yes/No
Neutral Citation : Yes/No
mmi
P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Vellore. To
1.The Secretary to the Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-600 009.
2.The District Collector and District Magistrate, Tiruvannamalai District, Tiruvannamalai.
3.The Superintendent of Police, Tiruvannamalai District, Tiruvannamalai.
4.The Inspector of Police, Prohibition Enforcement Wing, Cheyyar, Tiruvannamalai District.
5.The Superintendent of Prison, Central Prison, Vellore.
6.The Public Prosecutor, High Court, Madras. https://www.mhc.tn.gov.in/judis 7/8 HCP No.2340 of 2022 M.SUNDAR, J.
and M.NIRMAL KUMAR, J.
mmi H.C.P.No.2340 of 2022 20.04.2023 https://www.mhc.tn.gov.in/judis 8/8