P.Nirmala v. The Principal Secretary to Government

O R D E R [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

25.07.2023, a Hon'ble Coordinate Division Bench made the following order in the Admission Board:

¶2It has now become necessary to set out a thumbnail sketch of factual matrix and we do so in the paragraphs infra. Page No.2 of 8

¶3Today, the captioned matter is in the Final Hearing Board.

¶4Mr.C.Prithviraj, learned counsel on record for petitioner and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all respondents are before us.

¶5Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] has been filed by the mother of the detenu assailing the 'preventive detention order dated 07.06.2023 bearing reference Cr.M.P.No.08/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience]. To be noted, sponsoring authority has not been arrayed as a respondent and we find that Station House Officer of Virudhunagar East Police Station, is the sponsoring authority [hereinafter 'sponsoring authority' for convenience and brevity] and second respondent is the detaining authority as impugned preventive detention order has been made by second respondent.

¶6Impugned detention order has been made under 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law Page No.3 of 8 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 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.

¶7There are two adverse cases and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.91 of 2023 on the file of Virudhunagar East Police Station, for alleged offences under Sections 147, 148, 450, 353, 307 and 506(ii) of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' 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.

¶8In the final hearing today, learned counsel predicated his campaign against the impugned preventive detention order on the point that the detenu was arrested on 18.04.2023 but the impugned preventive detention order has been made only on 07.06.2023 resulting in live and Page No.4 of 8 proximate link between grounds and purpose of detention getting snapped.

¶9Mr.Thiruvadi Kumar, learned State Additional Public Prosecutor, submits that materials had to be collected and time was consumed in this exercise.

¶10We 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 delay' and the other facet is 'unexplained delay'. We find that the captioned matter falls under latter facet i.e., unexplained delay. Page No.5 of 8

¶11To 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.

¶12To be noted, the first adverse case is in Crime No.275 of 2020 on the file of Madurai District Aastinpatti Police Station for alleged offences under Sections 294(b), 307 and 324 of IPC [alleged occurrence on 19.05.2020], second adverse case is Crime No.650 of 2022 on the file of Madurai District Thirunagar Police Station for alleged offences under Sections 294(b), 323 and 506(ii) of IPC [alleged occurrence on

29.12.2022], ground case is Crime No.91 of 2023 on the file of Virudhunagar East Police Station, for alleged offences under Sections 147, 148, 450, 353, 307 and 506(ii) of IPC [alleged occurrence on

18.04.2023] and therefore time consumed remains unexplained. Page No.6 of 8

¶13Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.

¶14Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 07.06.2023 bearing reference in Cr.M.P.No.08/2023 made by the second respondent is set aside and the detenu Thiru.Saravanan @ Samysaravanan @ Saravanapandi, aged about 28 years, son of Thiru.Pandurangan @ Samy Saravanan, 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

30.10.2023 : Yes bala P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Madurai. To

¶1The Principal Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Chennai – 9. Page No.7 of 8

M.SUNDAR, J. and

R.SAKTHIVEL, J. bala

¶2The District Collector / District Magistrate, Virudhunagar District, Virudhunagar.

¶3The Superintendent, Central Prison, Madurai.

¶4The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

¶5The Joint Secretary to Government, Public (Law and Order) Department, Secretariat, Chennai. DATED : 30.10.2023 Page No.8 of 8

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.10.2023 CORAM : THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL P.Nirmala ... Petitioner vs. 1. State of Tamil Nadu, Rep. by its Principal Secretary to Government, Home, Prohibition and Excise Department, Chennai – 9. 2. The District Collector / District Magistrate, Virudhunagar District, Virudhunagar. 3. The Superintendent, Central Prison, Madurai. ... 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 pertaining to the proceedings of the 2nd respondent made in his proceedings in Cr.M.P.No.08/2023 dated 07.06.2023 and quash the same and set the petitioner's son by name ''Saravanan @ Samysaravanan @ Saravanapandi S/o.Pandurangan @ Samy Saravanan, aged about 28 years'' at liberty from the Central Prison, Madurai. For Petitioner : Mr.C.Prithviraj For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor Page No.1 of 8