Madras High Court
S.Kala vs State Of Tamil Nadu on 30 January, 2020
H.C.P(MD)No.1203 of 2019
B E F O R E T H E MADU R AI B E N C H O F MADRA S HI GH C O U R T
DATED : 30.01.2020
CORAM
T H E HO N O U R A B L E MR. J U S T I C E T.R A J A
A ND
T H E HO N O U R A B L E MR. J U S T I C E B . P U G A L E N DHI
H. C. P(MD)N o. 1 2 0 3 o f 2 0 1 9
S.Kala ... Petitioner
Vs.
1.State of Tamil Nadu, rep. by
The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai – 9.
2.The District Collector and District Magistrate,
O/o. The District Collector and District Magistrate,
Thanjavur District,
Thanjavur.
3.The Superintendent of Prison,
Central Prison,
Tiruchirappalli. ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India for issuance
of a Writ of Habeas Corpus to call for the entire records in detention order
passed in P.D.No.26/2019 dated 23.10.2019 on the file of the 2nd respondent
herein and set aside the same as illegal and direct the respondents to produce
the body or person of the Petitioner's husband namely Silambarasan, son of
Mathiyalagan, male, aged 30 years, who is detained at Central Prison,
Tiruchirappalli before this Hon'ble Court and to set him at liberty .
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For Petitioner : Mr.K.A.S.Prabhu
For Respondents : Mr.K.Dinesh Babu
Additional Public Prosecutor
*****
O RD E R
(Order of the Court was made by T. RA J A , J. )
The petitioner is the wife of the detenu viz., Silambarasan and
challenging the legality of the impugned order of detention dated 23.10.2019,
passed by the second respondent, under Section 3(1) of 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 14 of
1982) and branding him as 'Goonda' in P.D.No.26/2019, came forward to file the
present Habeas Corpus Petition.
2.A perusal of the Grounds of Detention dated 23.10.2019, passed by
the 2nd respondent herein, would disclose among other things that the detenu,
viz.,Silambarasan came to the adverse notice in the following case:-
Sl. Name of the Police Section of Law
No. Station and Crime No.
1. Thanjavur Town West U/s.294(b), 323, 324, 427 and 506(ii) I.P.C.
Police Station Cr.No.
287 of 2019
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It is further stated in the grounds of detention that the detenu was involved in a
case for the commission of offences under Sections 302 and 120(b) I.P.C. altered
into Sections 147, 148, 341, 302 and 120(b) I.P.C. in Thanjavur Taluk Police
Station in Crime No.340 of 2019 (ground case). The detenu was arrested on
30.09.2019 and produced before the Court of Judicial Magistrate No.II, Thanjavur
on 01.10.2019 and remanded to Judicial custody. The detaining authority on
being satisfied with the materials placed by the sponsoring authority that the
activities of the detenu are prejudicial to the maintenance of Public Order and
Public Peace, clamped the order of detention and making a challenge to the
same, the present Habeas Corpus Petition has been filed by the petitioner.
3.We have heard Mr.K.A.S.Prabhu, learned counsel appearing for the
petitioner and Mr.K.Dinesh Babu, learned Additional Public Prosecutor appearing
for the respondents and perused the materials available on record.
4.Learned counsel for the petitioner would further submit that the
detenu is suffering due to kidney problem and he was admitted at M.G.M.
Government Hospital with complaints of abdominal pain for one months and
had underwent left URSL & DJ stenting on 14.07.2016 and again on 14.08.2018 at
Thanjavur Medical College Hospital for Left PUJ calculus. Hence, he needs
proper treatment from a private hospital.
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5.Further, the learned counsel appearing for the petitioner drawing
our attention to page No.68 of the booklet submitted that after the arrest of the
accused in ground case in Crime No.340 of 2019, the arrest intimation was not
communicated to the family members of the detenu and though the arrest
intimation was said to have been sent to the mobile No.9791923134 through
SMS, the person to whom the message was sent to the said mobile number has
not been identified and besides the signature of the concerned person has also
not been obtained, therefore, in the light of the non-communication of the
arrest intimation, to the family members of the detenu the mandatory guidelines
given by the Hon'ble Apex Court reported in A I R ( 1 9 9 7 ) S C 6 1 0 [D. K .
B a s u v . S t a t e o f W e s t B e n g a l] is violated and as such, the impugned
order of detention is liable to be quashed.
6.In support of his submission, the learned counsel appearing for the
petitioner has relied on an unreported order of this Court d a t e d
0 7 . 0 6 . 2 0 1 9 made in H . C . P. ( M D ) N o . 2 6 o f 2 0 1 9 in the matter of
N at a r a j a n v . S t a t e o f Ta m i l N a d u , r e p . b y T h e P r i n c i p a l
S e c r eta r y to G ove r n m e nt a n d t w o o t h e r s , 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
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H.C.P(MD)No.1203 of 2019
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 . B a s u v . S t a t e o f W e s t B e n g a l
r e p ort e d in A I R ( 1 9 9 7 ) S C 6 1 0 and hence, on the sole ground,
the impugned order of detention is liable to be quashed.”
7.Since the learned counsel for the petitioner has submitted that the
detenu is suffering due to kidney problem, this Court directed the learned
Additional Public Prosecutor to get instruction regarding his illness. Accordingly,
learned Additional Public Prosecutor appearing for the respondents has
produced the report from Dr.L.Premalatha, Assistant Professor, Department of
General Surgery, KAPV GMC & M.G.M. G.H., Trichy dated 28.01.2020, which reads
as follows:
“28/1/20
CT abdomen shows left kidney lower pole calculus 7mm.
(L) kidney smaller in size.
® Kidney shows pyclonephrits features.
Urine culture of sensitivity :-
gram positive cocci present.
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Normal flora.
Urologist opinion obtained suggested Conservative management with
T.Sephran and T.Para.”
A perusal of the above reports shows that the detenu has some kidney problem
and he requires proper treatment.
8.Regarding non-communication of arrest of the detenu to his
relatives, 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.68 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 A I R ( 1 9 9 7 ) S C 6 1 0 [D. K . B a s u v . S t a t e o f W e s t
B e n g a l] and as such, the impugned order of detention is liable to be set aside.
9.The Hon'ble Apex Court in R e k h a v . S t a t e o f T. N . r e p o r t e d
i n ( 2 0 1 1 ) 5 S C C 2 4 4 has ruled that the preventive detention is, by nature
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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.
10.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 s i n e q u a n o n , therefore, the non-compliance would vitiate
the very detention itself. Applying this ratio here, we hold that the 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.
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11.In the result, the Habeas Corpus Petition is allowed by setting aside
the Order of Detention passed by the second respondent herein, namely, the
District Collector and District Magistrate, Thanjavur District, Thanjavur, in P.D.No.
26/2019 dated 23.10.2019. Consequently, the detenu, namely, Silambarasan, son
of Mathiyalagan, aged about 30 years, who is 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.
[T.R. J. ,] [B. P. J. ,]
3 0.0 1.2 0 2 0
Index :Yes/No
Internet :Yes/No
sj
To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
State of Tamil Nadu,
Fort St. George,
Chennai – 9.
2.The District Collector and District Magistrate,
O/o. The District Collector and District Magistrate,
Thanjavur District,
Thanjavur.
3.The Superintendent of Prison,
Central Prison,
Tiruchirappalli.
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H.C.P(MD)No.1203 of 2019
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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H.C.P(MD)No.1203 of 2019
T. RA J A , J .
A ND B . P U G A L E N DHI , J .
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