Madras High Court
Rehyana Banu vs The Secretary To The Government on 24 July, 2023
Author: M.Sundar
Bench: M.Sundar
H.C.P.No.321 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
H.C.P.No.321 of 2023
Rehyana Banu .. Petitioner
Vs
1.The Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -9.
2.District Collector and District Magistrate of
Vellore District, Vellore.
3.The Superintendent of Police,
Vellore District, Vellore.
4.The Superintendent of Prison,
Central Prison, Vellore.
5.The Inspector of Police,
Vellore North Crime Police Station,
Vellore 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 records in
connection with the order of detention passed by the second
respondent dated 21.02.2023 in C3/D.O.No.12/2023 against the
petitioner's husband Basha, male, aged 37 years, S/o.Sherkhan, who
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H.C.P.No.321 of 2023
is confined at Central Prison, Vellore and set aside the same and direct
the respondents to produce the detenu before this Court and set him
at liberty.
For Petitioner : Mr.D.Balaji
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 02.03.2023, this Court made the following order:
'Captioned Habeas Corpus Petition has been filed in this Court on 24.02.2023 inter alia assailing a detention order dated 21.02.2023 bearing reference C3/D.O.No.12/2023 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fifth respondent is the Sponsoring Authority.
2. Wife of the detenu is the petitioner.
3. Mr.D.Balaji, learned counsel on record for habeas corpus petitioner is before us. Learned counsel for petitioner submits that ground case qua the detenu is for alleged offence under Sections 341, 294(b), 395, 397, 364, 384 & 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] in Crime No.03 of 2023 on the file of Vellore North Crime Police Station.
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 Page Nos.2/8 https://www.mhc.tn.gov.in/judis H.C.P.No.321 of 2023 Bootleggers, Cyber law offenders, Drug-offenders, Forest- offenders, Goondas, Immoral traffic offenders, Sandoffenders, 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 remand order was not properly translated in Tamil.
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 02.03.2023 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 is one adverse case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.03 of 2023 on the file of Vellore North Crime Police Station for alleged offences under Sections 341, 294(b), 395, 397, 364, 384, 506(ii) IPC. Owing to the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into Page Nos.3/8 https://www.mhc.tn.gov.in/judis H.C.P.No.321 of 2023 the factual matrix or be detained further by facts.
4. Mr.D.Balaji, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5. In the Admission Board (as would be evident from paragraph 5 of the admission board order dated 02.03.2023) the point that remand order was not properly translated in Tamil was projected but in the Final Hearing Board today, learned counsel for petitioner submits 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 05.01.2023 but the impugned preventive detention order has been made only on 21.02.2023.
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 Page Nos.4/8 https://www.mhc.tn.gov.in/judis H.C.P.No.321 of 2023 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 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 Page Nos.5/8 https://www.mhc.tn.gov.in/judis H.C.P.No.321 of 2023 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, one adverse case viz., Crime No.387 of 2022 on the file of Vellore North Crime Police Station for alleged offences inter- alia under Sections 379 and 430 IPC is of the year 2022.
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 21.02.2023 bearing reference C3/D.O.No.12/2023 made by the second respondent is set aside and the detenu Thiru.Basha, aged 37 years, Son of Thiru.Sherkhan, is Page Nos.6/8 https://www.mhc.tn.gov.in/judis H.C.P.No.321 of 2023 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.)
24.07.2023
Index : Yes/No
Neutral Citation : Yes/No
mmi
P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Vellore. To
1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai -9.
2.The District Collector and District Magistrate of Vellore District, Vellore.
3.The Superintendent of Police, Vellore District, Vellore.
4.The Superintendent of Prison, Central Prison, Vellore.
5.The Inspector of Police, Vellore North Crime Police Station, Vellore District.
6.The Public Prosecutor, High Court, Madras.
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