Madras High Court
Maheshwari vs The Additional Chief Secretary To ... on 31 July, 2023
Author: M.Sundar
Bench: M.Sundar
H.C.P.No.488 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
H.C.P.No.488 of 2023
Maheshwari .. Petitioner
Vs
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.The District Collector & District Magistrate,
O/o.District Collector, Ranipet District.
3.The Superintendent of Police,
O/o.Superintendent of Police,
Ranipet District.
4.The Superintendent of Prison,
Vellore Central Prison, Vellore District.
5.The Inspector of Police,
Walaja Police Station,
Ranipet District. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of habeas corpus to call for the entire
records connected with the detention order in Memo
No.B3/D.O.4/2023 on 08.02.2023 on the file of the second respondent
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H.C.P.No.488 of 2023
and quash the same and direct the respondents to produce the body
and person of petitioner's son one named Thiru.Nirmalkumar,
S/o.Ramadass, aged about 25 years, now confined at Central Prison,
Vellore, before this Court and set him at liberty forthwith.
For Petitioner : Mr.P.Muthamizh Selvakumar
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,] When the captioned 'Habeas Corpus Petition' (hereinafter 'HCP' for the sake of convenience and clarity) was listed in the Admission Board on 30.03.2023, this Court made the following order:
'Captioned Habeas Corpus Petition has been filed in this Court on 23.03.2023 inter alia assailing a detention order dated 08.02.2023 bearing reference No.B3/D.O.No.04/2023 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fifth respondent is the Sponsoring Authority.
2. To be noted, mother of the detenu is the petitioner.
3. Mr.P.Muthamizh Selvakumar, learned counsel on record for habeas corpus petitioner is before us. Learned counsel for petitioner submits that ground case qua the detenu is for an alleged offence under Section 302 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] in Crime No.02 of 2023 on the file of Walajapet Police Station.
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4. The aforementioned detention order has been made on the premise that the detenu is a 'Goonda' under Section 2(f) of '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].
5. The detention order has been assailed inter alia on the ground that 'live and proximate link' between the grounds of detention and purpose of detention had snapped as there is a delay in passing the detention order.
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
7. Mr.R.Muniyapparaj, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.'
2. The aforementioned order made in the 30.03.2023 Admission listing shall be read as an integral part and parcel of this order which means that the short forms, short references and abbreviations used in the order in the Admission listing shall be used in the instant order also.
3. There are two adverse cases. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.02 of 2023 on the file of Walajapet Police Station for alleged offence under Section 302 IPC. Owing to the nature Page Nos.3/9 https://www.mhc.tn.gov.in/judis H.C.P.No.488 of 2023 of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.P.Muthamizh Selvakumar, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5. As would be evident from the Admission Board order dated 30.03.2023 (more particularly paragraph 5 thereat), at the time of admission, learned counsel for HCP petitioner projected the point that 'live and proximate link' between the grounds of detention and purpose of detention has snapped as there is delay in passing the detention order. Elaborating on the aforementioned point, learned counsel for petitioner submitted that 'live and proximate link' between the grounds of detention and purpose of detention has snapped as date of arrest in the ground case is 02.01.2023 but the impugned preventive detention order has been made only on 08.02.2023.
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6. Mr.E.Raj Thilak, learned State Additional Public Prosecutor, submits to the contrary by saying that materials had to be collected and time was consumed for the same. Considering the facts and circumstances of the case and nature of ground case, we find that this explanation of learned State Additional Public Prosecutor is unacceptable.
7. 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 law 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 the proposal by the 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 delay' and other Page Nos.5/9 https://www.mhc.tn.gov.in/judis H.C.P.No.488 of 2023 facet is 'unexplained delay'. We find that the captioned matter falls under latter facet i.e., unexplained delay.
8. 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 other orders in HCP cases.
9. To be noted, there are two adverse cases, one of the year 2019 and the date of occurrence is 03.09.2019 and the other of the year 2020 and the date of occurrence is 03.05.2020. It is further to be noted that the ground case is of the year 2023 and the date of occurrence is 01.01.2023.
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10. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
11. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 08.02.2023 bearing reference B3/D.O.No.04/2023 made by the second respondent is set aside and the detenu Thiru.Nirmalkumar, aged 25 years, Son of Thiru.Ramadass, 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.)
31.07.2023
Index : Yes
Neutral Citation : Yes
mmi
P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Vellore. To
1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector & District Magistrate, O/o.District Collector, Ranipet District. Page Nos.7/9 https://www.mhc.tn.gov.in/judis H.C.P.No.488 of 2023
3.The Superintendent of Police, O/o.Superintendent of Police, Ranipet District.
4.The Superintendent of Prison, Vellore Central Prison, Vellore District.
5.The Inspector of Police, Walaja Police Station, Ranipet District.
6.The Public Prosecutor, High Court, Madras.
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