Madras High Court
Subin vs The State Of Tamil Nadu on 22 January, 2020
Author: T.Raja
Bench: T.Raja, B.Pugalendhi
H.C.P.(MD)No.624 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
H.C.P.(MD)No.624 of 2019
Subin ... Petitioner
Vs.
1.The State of Tamil Nadu
rep. by the Principal Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai – 600 009.
2.The District Collector and District Magistrate
Kanyakumari District,
Nagercoil.
3.The Superintendent of Prison,
Central Prison,
Palayamkottai
Tirunelveli. ... Respondents
Petition filed under Article 226 of the Constitution of India, praying to
issue a Writ of Habeas Corpus, calling for the entire records connected with
the detention order passed in P.D.No.21/2019 dated 28.06.2019, on the file
of the second respondent herein and quash the same and direct the
respondents to produce the detenu or body of the detenu namely Subin,
aged about 24 years, S/o.Jeyachandran, now detained at Central Prison,
Palayamkottai, before this Court and set him at liberty forthwith.
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H.C.P.(MD)No.624 of 2019
For Petitioner : Mr.N.Pragalathan
For Respondents : Mr.K.Dinesh Babu
Additional Public Prosecutor
ORDER
[Order of the Court was made by T.RAJA, J.] Subin, being the detenu, detained under the impugned detention order dated 28.06.2019, for alleged offence under Sections 9(e), 9(m) r/w 10 of Protection of Children from Sexual Offences act, 2012, registered by the All Women Police Station in C.No.20/2019, has come to this Court, to quash the detention order passed in P.D.No.21/2019 dated 28.06.2019, by the second respondent herein.
2.Learned counsel appearing for the petitioner would submit that only for the reason that the petitioner has suffered three adverse cases and one ground case, he has been unnecessarily branded as 'sexual offender' as contemplated under Section 2(ggg) of the Tamil Nadu Act 14 of 1982. Arguing further, when there is no sexual assault, even said to have been made by the detenu/petitioner herein, there is no basis or foundation made by the second respondent for passing the impugned detention order. 2/8 http://www.judis.nic.in H.C.P.(MD)No.624 of 2019
3.Drawing our attention to the 164 Cr.P.C statement given by the victim, the learned counsel would further submit that even the 164 Cr.P.C statement recorded by the learned Judicial Magistrate, Mahila Court, Nagercoil, on 28.05.2019 speaks thus:-
“fle;j brt;tha; fpHik vd;Dila mk;khtpd; mz;zd; kfSf;F cly;epiy rhpapy;yhjjhy; vd;Dila mk;kh mth;fis Tl;of;bfhz;L Mrhhpgs;sk; muR kUj;Jtkid brd;whh;. Vd;ida[k; miHj;Jf;bfhz;L brd;whh;fs;. me;j FHe;ijf;F fha;r;ry;> the;jp ,Ue;jJ. Mg;nghJ ,ut[ 7.00 kzp ,Uf;Fk;. me;j FHe;ijapd; mk;kh mGJf;bfhz;oUe;jhh;. FHe;ijia kUj;Jtkidapy; rpfpr;irf;F mDkjpj;J tpl;lhh;fs;. FHe;ija[ld; mtUila mk;kh kUj;Jtkidapy; ,Ue;jhh;fs;. ehDk; vd;Dila mk;kht[k; kUj;Jtkidf;F btspna ,Ue;njhk;. M];gj;jphpapd; tuhz;lhtpy; gLj;jpUe;njhk;. mg;nghJ ,ut[ 1 kzpf;F brf;a{hpl;o xU egh; jz;zPh; nfl;lhh;. ehq;fs; jz;zPh; bfhLj;njhk;> ngha;tpl;lhh;. jpUk;gt[k; te;J vd;Dila Rojhiua[k;> vd;Dila mk;khtpd; rhhpiaa[k; gpoj;J ,Gj;jhh;. vd;Dila mk;kh mtdplk; vd;d ntz;Lk; vd;W nfl;L rj;jk; nghl;lhh;. cdf;F mf;fh> jq;if> mk;kh fpilahjh vd;W nfl;L rj;jk; nghl;lhh;. vd;Dila mk;kh mtid moj;J tpl;lhh;. mtd; Xotpl;lhd;. Rj;jk; nfl;L ,d;bdhUtd; te;jhd;. mtDk; vd; mk;khtplk; jz;zPh; nfl;lhd;. clnd eh;]; cdf;F ,q;F vd;d ntiy ,d;W cdf;F oa{l;o fpilahnj vd;W rj;jk; nghl;L mDg;gp tpl;lhh;. brf;a{hpl;oia fhiyapy; ghh;jJ; f;bfhs;syhk; vd;W brhy;yptpl;lhh;. fhiyapy; ngha; g[fhh; bfhLj;njhk;.” and based on the above statement, it is not known as to how the second respondent has passed the detention order. The learned counsel would also submit that the detenue has been put to incarceration for the past 8 months.3/8
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4.Drawing our attention to page No.339 of the booklet, he would submit that arrest information has not been furnished to the family members of the detenu. Therefore, in the light of the non-communication of the arrest intimation, to the family members of the detenu, according to him, the mandatory guidelines given by the Hon'ble Apex Court reported in AIR (1997) SC 610 [D.K. Basu v. State of West Bengal] are 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.26 of 2019 in the matter of 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.” 4/8 http://www.judis.nic.in H.C.P.(MD)No.624 of 2019
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.339 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.It is well-settled by this Court that the arrest intimation should be made known to either the detenu or the family members. In the present case, although the respondents have claimed that SMS in respect of his arrest in the ground case has been informed to the family members, there is no evidence to show that the arrest information has been passed on or furnished to the family members of the detenu. 5/8 http://www.judis.nic.in H.C.P.(MD)No.624 of 2019
8.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.
9.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 6/8 http://www.judis.nic.in H.C.P.(MD)No.624 of 2019 non-compliance of the mandatory condition that the family members of the detenu should be informed 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.
10.Resultantly, this petition stands allowed and the impugned detention order stands quashed. Consequently, the detenu, Subin, aged about 24 years, S/o.Jeyachandran, now detained at Central Prison, Palayamkottai is directed to be released forthwith unless his presence or custody or detention is required in connection with any other case/proceedings.
vs (T.R., J.) & (B.P., J.)
Index :Yes/No 22.01.2020
Internet:Yes/No
To
1.The Principal Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai – 600 009.
2.The District Collector and District Magistrate Kanyakumari District, Nagercoil.
7/8 http://www.judis.nic.in H.C.P.(MD)No.624 of 2019 T.RAJA, J.
AND B.PUGALENDHI, J.
vs
3.The Superintendent of Prison, Central Prison, Palayamkottai Tirunelveli.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
H.C.P.(MD)No.624 of 2019
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