Madras High Court
M.Shylaja vs The Additional Chief Secretary To ... on 19 January, 2023
Bench: M.Sundar, M.Nirmal Kumar
2023/MHC/193
HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2023
Coram
The Hon'ble Mr. Justice M.SUNDAR
and
The Hon'ble Mr. Justice M.NIRMAL KUMAR
H.C.P. Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
H.C.P.No.1182 of 2022
M.Shylaja
W/o.Manoj Kumar ... Petitioner(wife of detenu)
-vs-
1. The Additional Chief Secretary to Government
Home, Prohibition & Excise Department
Secretariat
Chennai – 600 009
2. The District Collector
and District Magistrate
Ariyalur District
Ariyalur
3. The Superintendent
Central Prison
Trichy
Tiruchirapalli
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
4. The Superintendent of Police
Ariyalur District
Ariyalur
5. The Inspector of Police
All Women Police Station
Ariyalur District
(Crime No.17/2022) ... Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Habeas Corpus calling for the records from the 2 nd
respondent in Crl.M.P.No.22/2022 dated 30.04.2022 and by setting aside the
order of detention passed by the 2nd respondent and setting the detenu,
namely Manoj Kumar son of Devendra Kumar aged about 41 years at liberty
now detained in the Central Prison, Trichy.
For Petitioner .. Mr.V.Illanhezian
For Respondents .. Mr.R.Muniyapparaj
Additional Public Prosecutor
H.C.P.No.859 of 2022
Mrs.D.Vennila
W/o.Deivegan ... Petitioner(Wife of the detenu)
-vs-
1. The Principal Secretary to Government
Home, Prohibition & Excise Department
Secretariat
Chennai – 600 009
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
2. The District Collector
and District Magistrate
Ariyalur District
Ariyalur
3. The Superintendent of Police
Ariyalur District
Ariyalur
4. The Superintendent of
Central Prison
Trichy District
5. The Inspector of Police
Jeyamkondan All Women Police Station
Ariyalur District ... Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Habeas Corpus calling for the records from the 2 nd
respondent in Crl.M.P.No.19/2022 dated 30.04.2022 , quashing the same
and directing the respondents herein to produce the body and person of the
detenu by name Deiveegan, Son of Maruthamuthu, aged about 49 years
before this Court and setting him at liberty who is now detained in central
prison, Trichy.
For Petitioner .. Mr.R.Rajan
For Respondents .. Mr.R.Muniyapparaj
Additional Public Prosecutor
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
H.C.P.No.944 of 2022
D.Sekar
S/o.Dhanavel ... Petitioner/Son of Detenue
-vs-
1. The State of Tamil Nadu
Represented by Secretary to Government
Prohibition & Excise Department
Fort St. George
Chennai – 600 009
2. The District Collector
and District Magistrate
Ariyalur District
Ariyalur
3. The Superintendent of Police
Ariyalur District
Ariyalur
4. The Inspector of Police
All Women Police Station
Jayankondam
Ariyalur District
5. The Superintendent of Police
Central Prison
Thiruchirappalli ... Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Habeas Corpus to call for the records relating to the
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
detention order dated 30.04.2022 passed by the second respondent in the
proceedings in Cr.M.P.No.13 of 2022 in T.P.D.A.No.7197 and to quash the
same, consequently direct the respondents herein to produce detenu father
namely Dhanavel, son of Muthusamy, aged about 58 years, residing at
D.No.5/142, Melatheru, Manapputhur, Senthurai Taluk, Ariyalur Dsitrict,
who is presently undergoing detention in the Central Prison,
Thiruchirappalli as “Immoral Traffic Offender” under Section 3(1) of the
Tamilnadu Prevention of Dangeous Activities of Bootleggers, Drug
Offenders, Forest Offenders, Goondas, Immoral Traffic Offenrders, Sand
Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamilnadu Act 14
of 1982) before this Court and set him at liberty forthwith.
For Petitioner .. Mr..C.Prabakaran
For Respondents .. Mr.R.Muniyapparaj
Additional Public Prosecutor
H.C.P.No.976 of 2022
Jayamani
W/o.Shanmugam ... Petitioner/Mother of Detenu
-vs-
1. The Additional Chief Secretary to Government
Home, Prohibition & Excise Department
Secretariat
Chennai – 600 009
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
2. The District Collector and District Magistrate
Ariyalur District
Ariyalur
3. The Superintendent of Police
Ariyalur District
4. The Superintendent
Central Prison
Tiruchirapalli
5. The Inspector of Police
All Women Police Station
Jayankondam
Ariyalur District
(Crime No.17/2022) ... Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Habeas Corpus directing the respondents to call for
the records in Crl.M.P.No.17 of 2022 dated 30.04.2022 passed by the
District Collector and District Magistrate, Ariyalur District, Ariyalur, quash
the same and to produce the body of the detenu Vetrikannan, son of
Shanmugam, aged 37 years before this Court who is now detained at Central
Prison, Tiruchirapalli in pursuance of the aforesaid order under Act 14/82
branding the detenu as “sexual offender” and set him at liberty.
For Petitioner .. Mr.V.Rajamohan
For Respondents .. Mr.R.Muniyapparaj
Additional Public Prosecutor
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
H.C.P.No.1117 of 2022
Vinothini
D/o.Murugasan ... Petitioner/Sister of Detenu
-vs-
1. The Additional Chief Secretary to Government
Home, Prohibition & Excise Department
Fort St. George
Chennai – 600 009
2. The District Collector
and District Magistrate
Ariyalur District
Ariyalur
3. The Superintendent of Police
Ariyalur District
Ariyalur
4. The Superintendent
Central Prison
Thiruchirappalli
5. The Inspector of Police
Jayankondam, All Women Police Station
Ariyalur District ... Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Habeas Corpus calling for the records relating to the
detention order passed by the second respondent pertaining to the order
made in Crl.M.P.No.14 of 2022 dated 30.04.2022 in detain the detenu under
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
2(F) of Tamil Nadu Act 14 of 1982, as a SEXUAL OFFENDER and quash
the same and direct the respondent to produce the detenu Vinoth, son of
Murugesan, aged about 29 years, who is detained in Central Prison at
Thiruchirapalli before this Court and set him at liberty.
For Petitioner .. Mr.V.Shanmugasundaram
for Mr.G.Nirmal Krishnan
For Respondents .. Mr.R.Muniyapparaj
Additional Public Prosecutor
H.C.P.No.1224 of 2022
N.Kasirajan
S/o.Nagarajan ... Petitioner/Son of Detenu
-vs-
1. The State of Tamil Nadu
Represented by Secretary to Government
Home, Prohibition & Excise Department
Secretariat
Chennai – 9
2. The District Collector
and District Magistrate
Ariyalur District
Ariyalur
3. The Superintendent of Police
Ariyalur District
Ariyalur
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
4.The Superintendent
Special Prison for Women
Tiruchirappalli
5. The Inspector of Police
All Women Police Station
Jayankondam
Ariyalur District ... Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Habeas Corpus calling for the records in
Crl.M.P.No.21 of 2022 dated 30.04.2022 on the file of the 2nd respondent
and quash the same as illegal and consequently direct the respondents to
produce the petitioner's Mother Tmt.Indra, Wife of Nagarajan, aged about
40 years, who now detained in Special Prison for Women, Tiruchirappalli
before this Court and set her at liberty.
For Petitioner .. Mr.K.Gandhi Kumar
For Respondents .. Mr.R.Muniyapparaj
Additional Public Prosecutor
H.C.P.No.1394 of 2022
Karuppusamy ... Petitioner/Father of Detenu
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
-vs-
1. The State of Tamil Nadu
Represented by Secretary to Government
Home, Prohibition & Excise Department
Secretariat
Chennai – 9
2. The District Collector
and District Magistrate
Ariyalur District
Ariyalur
3. The Superintendent of Police
Ariyalur District
Ariyalur
4.The Superintendent
Central Prison
Tiruchirappalli
5. The Inspector of Police
All Women Police Station
Jayankondam
Ariyalur District ... Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Habeas Corpus calling for the records in
Crl.M.P.No.15 of 2022 dated 30.04.2022 on the file of the 2nd respondent
and quash the same as illegal and consequently direct the respondents to
produce the petitioner's Son Thiru.Balu @ Balachandar son of
Karuppusamy, aged about 23 years, who now detained in Central Prison,
Tiruchirappalli before this Court and set him at liberty.
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HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022
For Petitioner .. Mr.K.Gandhi Kumar
For Respondents .. Mr.R.Muniyapparaj
Additional Public Prosecutor
COMMON ORDER
[Order of the Court was made by M.SUNDAR, J.] This common order will govern the captioned 7 'Habeas Corpus Petitions' ['HCPs' in plural and 'HCP' in singular for the sake of brevity, convenience and clarity].
2. Captioned 7 HCPs pertain to 7 detenus, all of whom have been detained vide separate detention orders, all dated 30.04.2022 alleging that they are 'sexual offenders' within the meaning of Section 2(1)(ggg) of 'The Tamil Nnadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-Offenders, Forest Offenders, Goondas, Immoral Traffic Offenrders, Sand-Offenders, Sexual offenders, Slum-Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity].
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3. The details of 7 captioned HCPs in a tabulation is as follows:
SI.No. HCP No. Name of the Date and Reference No of petitioner and Detention Order Relationship with the detenu/detenue 1 H.C.P.No.1182 of M.Shylaja/Wife of 30.04.2022/Cr.M.P.No.22/2022 2022 the Detenu 2 H.C.P.No.859 of D.Vennila/Wife of 30.04.2022/Cr.M.P.No.19/2022 2022 the Detenu 3 H.C.P.No.944 of D.Sekar/Son of 30.04.2022/Cr.M.P.No.13/2022 2022 Detenu 4 H.C.P.No.976 of Jayamani/Mother 30.04.2022/Cr.M.P.No.17/2022 2022 of detenu 5 H.C.P.No.1117 of Vinothini/Sister of 30.04.2022/Cr.M.P.No.14/2022 2022 detenu 6 H.C.P.No.1224 of N.Kasirajan/Son 30.04.2022/Cr.M.P.No.21/2022 2022 of the Detenue 7 H.C.P.No.1394 of Karuppusamy/ 30.04.2022/Cr.M.P.No.15/2022 2022 Father of the Detenu
4. To be noted, in all seven captioned HCPs, detaining authority is the jurisdictional District Collector.
5. A thumbnail sketch of facts are that there are ground cases pertaining to alleged sexual offences. It may not be necessary to dilate on facts owing to a straight forward point that arises in the HCPs on hand. To be noted, this straight forward point turns on Section 8 of Act 14 of 1982 Page 12 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 which will the delineated infra.
6. Counsel for petitioners in HCPs on hand notwithstanding very many grounds in the affidavits predicate their arguments on one submission and that one submission is, the grounds have not been communicated to the detenus by five days. In this regard, all the learned counsel drew the attention of this to Section 8 of Act 14, which reads as follows:
'8. Grounds of order of detention to be disclosed to persons affected by the order.-(1) When a person is detained in pursuance of a detention order, the Authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.'
7. As regards three of the seven captioned HCPs, there is one more ground and that is, translated copies of the arrest memos have not been provided to the detenus. To elaborate on this, it is submitted that the detenus are not conversant with the language in which the arrest memos have been made by the detaining authority, detenus are conversant only with Page 13 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 Tamil but Tamil translation of arrest memos have not been served on the detenus. To be noted, those three HCPs are H.C.P.Nos.1117, 1224 and 1394 of 2022.
8. We remind ourselves of Ashok Kumar case law i.e., Ashok Kumar V. Delhi Administration and Ors. reported in (1982) 2 SCC 403, where Hon'ble Supreme Court held that the object of preventive detention is not to punish a man for having done something but to intercede before it is done. Therefore, preventive detention is a statutory procedure to intercede and it is not a punishment. As already delineated supra, all the seven detention orders are dated 30.04.2022. This means that the grounds should have been communicated to the detenus latest by 05.05.2022 as they are already under detention, they are in State custody and have been lodged in prison. In six of the seven captioned HCPs, the grounds have been communicated to/served on the detenus only on 10.05.2022. In one of the captioned HCPs, namely H.C.P.No.1224 of 2022, it has been communicated to/served on the detenue on 09.05.2022. What is of utmost significance in this regard is that all the detenus are in custody and have been lodged in Central Prison, Trichy except the detenue in H.C.P.No.1224 of 2022 wherein the detenue is Page 14 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 a woman and is therefore, is lodged in Special Prison for Women, Trichy. The orders of detention and grounds as produced before us have the seal of Superintendent of Central Prison, Trichy and that shows that the grounds have been served on six of the detenus on 10.05.2022 and one of the detenue on 09.05.2022. This is clearly later than five days cap vide Section 8 of Act 14 of 1982.
9. In this regard, we draw inspiration from ratio in Malleeswari Vs. State Government, rep. By the Secretary to Government and another reported in (2011) 1 MLJ (Crl) 513, wherein a Hon'ble Division Bench of this Court has held that delay in supplying copy of detention order, grounds and connected papers to the detenu i.e., delay beyond 5 days from the date of detention is clearly violation of Section 8(1) of Act 14 and that by itself becomes a ground to make an order setting aside the detention. To be noted, in Malleeswari case also, the detention was under Act 14 albeit as a 'Goonda' and detenu was in prison.
10. We notice one other feature and that is in all the detention orders, the provision of law has been mentioned as Section 2(ggg), whereas it is Section 2(1)(ggg) of Act 14 of 1982 as detention is posited on 'sexual Page 15 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 offenders' but leave this issue open in this order as it is not clear if it is a misprint in this book titled 'A Handbook of Preventive Laws' [October 2021, Third edition] by S.Sambandham / V.S.Rajaram and published by C.Sitaraman & Co. Pvt. Ltd., as Gazette publication of ordinance [Ordinance 1 of 1982 published in Tamil Nadu Government Gazette on 05.01.1982] does not have sub-section (1).
11. With regard to custodial jurisprudence, in Pattammal Vs. District Magistrate and Collector Nagai and Others reported in 1995(1) CTC 335, which is also under Act 14 of 1982, a Hon'ble Division Bench of this Court dealing with detention under Act 14 has held that Section 8 of Act 14 of 1982 is intented to confer a right for detenu qua an opportunity to make a representation against an order of detention.
12.We have noticed that the language in which Section 8 of Act 14 of 1982 is couched makes it clear that 'not later than five days' is from the date of detention. In the cases on hand, the detenues were already under detention. This is one facet of the matter. Another facet of the matter is, on detention orders being made, preventive detention of the detenus operates and in the cases on hand, the grounds of detention have been served beyond Page 16 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 five days from the date of detention orders. A scanned reproduction of undisputed seal of the prison authorities in one of the cases [HCP No.1182 of 2022] as an illustration is as follows:
13. To be noted, seal is the same in all the seven matters and this is undisputed. This is an infraction qua 'earliest opportunity' to the detenus for making representation to the State Government against the detention orders which has also been ingrained in Section 8 of Act 14 of 1982. There will be a little more allusion to this aspect elsewhere infra in this common order.
14. As regards the three cases alluded to supra/delineated supra wherein translated copies of arrest intimation have not been provided to the detenus, the same is clearly traceable to the celebrated case law in custodial Page 17 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 jurisprudence being D.K.Basu Vs. State of West Bengal reported in AIR 1997 SC 610.
15. Learned Additional Public Prosecutor submitted that the orders were sent to the prison well in time where the detenus are lodged and they are left / hung in a particular place in the prison. There has been delay on the part of the detenus in collecting the same is the learned prosecutor's further say.
16. We are unable to accept this submission as this is a case where detenus are in the custody of the State. There is no material in these cases to demonstrate that detenus refused to receive the detention orders or the grounds though given to them. Therefore, there has been a flaw in the procedure that has been adopted with regard to communicating to the detenus and the grounds of detention. This gets escalated to a second facet of ground of attack in the light of language in which Section 8 of Act 14 is couched (extracted and reproduced supra). This second facet is detenus have been deprived of 'earliest opportunity' of making a representation to the Page 18 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 State Government against the detention orders.
17. As regards the translated copies, as alluded to supra, there is no material to demonstrate that translated copies i.e., translated copies in Tamil were provided. Therefore, this contention also finds favour with us. As there is a clear violation of Section 8 of Act 14 of 1982 i.e., the very statute under which the preventive detention has been clamped on the seven detenus in all the seven captioned cases and there is also violation of D.K.Basu principle as regards translated copies not being given to the detenus in three cases, we have no hesitation in holding that the detention orders are liable to be set aside.
18. Ergo, the sequitur is captioned 7 HCPs are allowed and the orders of detention dated 30.04.2022, bearing reference Cr.M.P.No.22/2022, Cr.M.P.No.19/2022, Cr.M.P.No.13/2022, Cr.M.P.No.17/2022, Cr.M.P.No.14/2022, Cr.M.P.No.21/2022, Cr.M.P.No.15/2022 made by the second respondent are set aside and detenus 1) Manojkumar, son of Devendrakumar, 2) Deiveegan, Son of Maruthamuthu, 3) Dhanavel, son of Page 19 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 Muthusamy, 4) Vetrikannan, son of Shanmugam, 5) Vinoth, son of Murugesan, 6) Indira, wife of Nagaraj and 7) Balu @ Balachandar, son of Karuppusamy are directed to set at liberty forthwith unless required in connection with any other case.
(M.S,J.) (M.N.K.,J.) 19.01.2023 Index:Yes Neutral Citation : Yes gpa Page 20 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 To
1. The Additional Chief Secretary to Government Home, Prohibition & Excise Department Secretariat Chennai – 600 009
2. The District Collector and District Magistrate Ariyalur District Ariyalur
3. The Superintendent Central Prison Trichy Tiruchirapalli
4. The Superintendent of Police Ariyalur District Ariyalur
5. The Inspector of Police All Women Police Station Ariyalur District Page 21 of 22 https://www.mhc.tn.gov.in/judis HCP Nos.1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 M.SUNDAR, J.
and M.NIRMAL KUMAR, J.
gpa H.C.P.Nos. 1182, 859, 944, 976, 1117, 1224 and 1394 of 2022 19.01.2023 Page 22 of 22 https://www.mhc.tn.gov.in/judis