Madras High Court
Ayishama vs The State Of Tamil Nadu on 6 December, 2023
Author: M.Sundar
Bench: M.Sundar
2023/MHC/5333
HCP(MD)No.1348 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.12.2023
CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
HCP(MD)No.1348 of 2023
Ayishama ... Petitioner
vs.
1. The State of Tamil Nadu, Rep by its
The Principal Chief Secretary to Government,
Home, Prohibition and Excise Department,
St.George Fort, Chennai-600 009.
2. The District Collector / District Magistrate,
Office of the Collectorate Building,
Trichirappalli District,
Trichirappalli.
3. The Superintendent of Prison,
Central Prison, Trichy. ... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Habeas Corpus, to call for the records relating to
the detention order passed by the 2nd respondent in Cr.M.P.No.15/2023
dated 02.08.2023 and quash the same and direct the respondents to
produce the body or person of the detenu namely Satham, S/o.Mukthar,
aged about 34 years (Now detained at Central Prison, Trichy) before this
Court and set him at liberty.
For Petitioner : Mr.M.Karunakaran for
Mr.D.S.Haroon Rasheed
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis
Page No.1 of 9
HCP(MD)No.1348 of 2023
ORDER
[Order of the Court was made by M.SUNDAR, J.] When the captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of brevity] was listed in the Admission Board on 07.11.2023, a Hon'ble Coordinate Division Bench made the following order in the Admission Board:
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2. The aforementioned Admission Board order captures all essentials that are imperative for appreciating this order and therefore, we are not setting out the same again in this final order. Suffice to say that https://www.mhc.tn.gov.in/judis Page No.3 of 9 HCP(MD)No.1348 of 2023 aforementioned Admission Board order shall now be read as an integral part and parcel of this final order. This also means that short forms, short references and abbreviations used in the Admission Board order will continue to be used in the instant final order also for the sake of brevity, convenience and clarity.
3. There is no adverse case. The ground case which constitutes sole substratum of the impugned preventive detention order is Crime No. 205 of 2023 on the file of Manapparai Police Station registered for 'Girl Missing' and subsequently altered into Sections 366, 366A, 342, 367 of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity] r/w Sections 5(l) and 6(1) of Protection of Children from Sexual Offences Act, 2012 [hereinafter 'POCSO Act' for brevity]. Considering the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix of the case.
4. In the final hearing today, learned counsel changed his line of attack and predicated his campaign against the impugned preventive detention order on the point that the detenu was arrested on 07.05.2023 but the impugned preventive detention order has been made only on https://www.mhc.tn.gov.in/judis Page No.4 of 9 HCP(MD)No.1348 of 2023 02.08.2023 resulting in live and proximate link between grounds and purpose of detention getting snapped.
5. Mr.Thiruvadi Kumar, learned State Additional Public Prosecutor, submits that materials had to be collected and time was consumed in this exercise. Considering the facts / circumstances of the case on hand and nature of ground case, we find that this explanation of learned Prosecutor is unacceptable.
6. We remind ourselves of Sushanta Kumar Banik's case [Sushanta Kumar Banik Vs. State of Tripura & others reported in 2022 LiveLaw (SC) 813 : 2022 SCC OnLine SC 1333]. To be noted, Banik case arose under 'Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988' [hereinafter 'PIT NDPS Act' for the sake of brevity] in Tirupura, wherein after considering a proposal by a Sponsoring Authority and after noticing the trajectory the matter took, Hon'ble Supreme Court held that the 'live and proximate link between grounds of detention and purpose of detention snapping' point should be examined on a case to case basis. Hon'ble Supreme Court has held in Banik case law that this point has two facets. One facet is 'unreasonable https://www.mhc.tn.gov.in/judis Page No.5 of 9 HCP(MD)No.1348 of 2023 delay' and the other facet is 'unexplained delay'. We find that the captioned matter falls under latter facet i.e., unexplained delay.
7. To be noted, Banik case has been respectfully followed by this Court in Gomathi Vs.The Principal Secretary to Government and others reported vide Neutral Citation of Madras High Court being 2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil Nadu and others reported vide Neutral Citation of Madras High Court being 2023/MHC/733, Sangeetha Vs. The Secretary to the Government and others reported vide Neutral Citation of Madras High Court being 2023:MHC:1110, N.Anitha Vs. The Secretary to Government and others reported vide Neutral Citation of Madras High Court being 2023:MHC:1159 and a series of similar orders in HCP cases.
8. To be noted, the impugned preventive detention order is predicated on a solitary case viz., Crime No.205 of 2023 on the file of Manapparai Police Station registered for 'Girl Missing' and subsequently altered into Sections 366, 366A, 342, 367 of IPC r/w Sections 5(l) and 6(1) of POCSO Act [alleged occurrence on 01.05.2023] and therefore this solitary case is the sole substratum of the impugned preventive detention order.
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9. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
10. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 02.08.2023 bearing reference in Cr.M.P.No.15/2023 made by the second respondent is set aside and the detenu Thiru.Satham, aged about 34 years, son of Thiru.Mukthar, 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.) (R.S.V., J.)
Index : Yes / No 06.12.2023
Neutral Citation : Yes / No
bala
P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Trichirappalli. All concerned to act on this order being uploaded in official website of this Court without insisting on certified copies. To be noted, this order when uploaded in official website of this Court will be watermarked and will also have a QR code.
To
1. The Principal Chief Secretary to Government, Home, Prohibition and Excise Department, St.George Fort, Chennai-600 009.
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2. The District Collector and District Magistrate, Office of the Collectorate Building, Trichirappalli District, Trichirappalli.
3. The Superintendent of Prison, Central Prison, Trichy.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
5. The Joint Secretary to Government, Public (Law and Order) Department, Secretariat, Chennai.
https://www.mhc.tn.gov.in/judis Page No.8 of 9 HCP(MD)No.1348 of 2023 M.SUNDAR, J.
and R.SAKTHIVEL, J.
bala ORDER MADE IN HCP(MD)No.1348 of 2023 DATED : 06.12.2023 https://www.mhc.tn.gov.in/judis Page No.9 of 9