Madras High Court
Susila vs The State Of Tamil Nadu on 13 March, 2023
Bench: M.Sundar, M.Nirmal Kumar
2023:MHC:1095
H.C.P.No.1726 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.03.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
H.C.P.No.1726 of 2022
Susila .. Petitioner/
Mother of Detenu
Vs.
1.The State of Tamil Nadu,
Rep. by its Secretary to the Government,
Home, Prohibition & Excise Department
Fort St. George, Chennai-600 009.
2.The District Collector and District Magistrate,
Thiruvannamalai District,
Thiruvannamalai.
3.The Superintendent of Police,
Thiruvannamalai District,
Thiruvannamalai.
4.The Inspector of Police,
Thanipadi Police Station,
Thiruvannamalai District.
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H.C.P.No.1726 of 2022
5.The Superintendent,
Cenral Prison, Vellore. .. Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of habeas corpus calling for the records of the
detention made in D.O.No.67/2022 C-2 dated 26.07.2022 passed by the
District Collector and District Magistrate Thiruvannamalai District the 2nd
respondent herein and set aside the same and direct the respondents to
produce the detenue before this Court and set the detenu Thiru.Murugan,
son of Settu aged 27 years now confined in Central Prison, Vellore at
liberty.
For Petitioner : Mr.R.Balakrishnan
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by the mother of detenu assailing a 'preventive detention order dated 26.07.2022 bearing reference D.O.No.67/2022-C2' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent.
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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] on the premise that the detenu is a 'Sexual Offender' within the meaning of Section 2(ggg) of Act 14 of 1982.
3.There is no adverse case. The ground case which is the sole substratum of the impugned detention order is Crime No.241 of 2022 on the file of Thanipadi Police Station for alleged offences under Sections 5(1), 5(j)(ii) read with 6, 21(1) of Protection of Children from Sexual Offences Act [hereinafter 'POCSO Act' for the sake of convenience and clarity] and Sections 312, 314, 315 read with 109 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. 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.
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4.Mr.R.Balakrishnan, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5.Notwithstanding very many averments made in the support affidavit Mr.R.Balakrishnan, learned counsel for petitioner submits that the grounds on which the impugned detention order has been made has not been served within five days from the date of detention. Learned counsel submits that the formal date of detention qua impugned detention order is 26.07.2022.
Learned counsel also points out that the grounds on which the impugned detention order has been made was communicated to the detenu only on 02.08.2022 at 16.30 hours. In support of his contention, learned counsel placed before us the grounds which was served on the detenu in the form of a booklet. A scanned reproduction of the relevant portion in the booklet is as follows:
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6.Learned counsel submits that the above is an infraction of Section 8(1) of Act 14 of 1982 which mandates that the grounds on which the detention order is made ought to be communicated to the detenu as soon as may be, but not later than five days from the date of detention. Elaborating on his submission in this direction, learned counsel submitted that this has afflicted the statutory mandate of affording the detenu earliest opportunity of making a representation to the State Government against the impugned order of detention.
7.On Section 8(1) of Act 14 of 1982, we have already taken a view interalia vide order dated 19.01.2023 in H.C.P.No.1182 of 2022 reported in Page Nos.5/13 https://www.mhc.tn.gov.in/judis H.C.P.No.1726 of 2022 neutral citation of Madras High Court being 2023/MHC/193 [M.Shylaja Vs. The Additional Chief Secretary to Government and others ] and series of other HCP matters [we are informed that this has been reported in SCC online also and the citation is 2023 SCC Online Mad 289].
8.As regards the aforementioned Shylaja's case on facts the matter arose under Act 14 of 1982 and it was a case where the grounds on which the impugned detention orders were made were not served on the detenus within five days. In this regard, paragraphs 8 to 13 of Shylaja's case are relevant and the same read as follows [To be noted paragraphs 8 to 13 as in the neutral citation being 2023/MHC/193]:
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 Page Nos.6/13 https://www.mhc.tn.gov.in/judis H.C.P.No.1726 of 2022 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 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 Page Nos.7/13 https://www.mhc.tn.gov.in/judis H.C.P.No.1726 of 2022 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 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 Page Nos.8/13 https://www.mhc.tn.gov.in/judis H.C.P.No.1726 of 2022 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 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.
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9.As regards little more allusion referred in paragraph 13 supra, paragraph 16 [to be noted paragraph number is as in neutral citation being 2023/MHC/193] is of relevance and the same reads as follows:
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 State Government against the detention orders.
10.In the light of the narrative thus far, we have no difficulty in accepting the submission of learned counsel for petitioner that there is a clear violation of/infraction qua Section 8(1) of Act 14/1982 and therefore, the impugned detention order deserves to be dislodged.
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11.Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 26.07.2022 bearing reference D.O.No.67/2022-C2 made by the second respondent is set aside and the detenu Thiru.Murugan, male, aged 27 years, son of Thiru.Settu 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.) (M.N.K.,J.)
13.03.2023
Index : Yes / No
Speaking / Non-speaking
Neutral Citation : Yes / No
cse
P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Vellore.
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1.The Secretary to the Government, Home, Prohibition & Excise Department Fort St. George, Chennai-600 009.
2.The District Collector and District Magistrate, Thiruvannamalai District, Thiruvannamalai.
3.The Superintendent of Police, Thiruvannamalai District, Thiruvannamalai.
4.The Inspector of Police, Thanipadi Police Station, Thiruvannamalai District.
5.The Superintendent, Cenral Prison, Vellore.
Page Nos.12/13https://www.mhc.tn.gov.in/judis H.C.P.No.1726 of 2022 M.SUNDAR, J., and M.NIRMAL KUMAR, J., cse H.C.P.No.1726 of 2022 13.03.2023 Page Nos.13/13 https://www.mhc.tn.gov.in/judis