P.Geetha v. The Additional Chief 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

24.08.2023, a Hon'ble Predecessor Coordinate Division Bench made the following order and a scanned reproduction of the same is as follows:

2.It has now become necessary to set out a thumbnail sketch of factual matrix and we do so in the paragraphs infra.

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

4.Mr.N.Pragalathan, learned counsel on record for petitioner and Mr.S.Ravi, learned State Additional Public Prosecutor for all respondents are before us.

5.Captioned HCP has been filed by mother of the detenu assailing a 'preventive detention order dated 31.07.2023 bearing reference

M.H.S.Confdl.No.75/2023'

[hereinafter

'impugned preventive detention order' for the sake of brevity and convenience]. To be noted, sponsoring authority has not been arrayed as a respondent but we find that Station House Officer of 'Moondradaippu Police Station' is the sponsoring authority [hereinafter 'Sponsoring Authority' for the sake of convenience and clarity] and second respondent is the detaining authority as impugned preventive detention order has been made by second respondent.

6.Impugned preventive 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 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.

7.The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No. 71 of 2023 on the file of Moondradaippu Police Station for alleged offences under Sections 427, 395 and 397 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] which was subsequently altered into Sections 427, 395, 397 and 120-B of IPC. Considering the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix of the case.

8.In the support affidavit several points have been raised but Mr.N.Pragalathan, learned Counsel for HCP petitioner in the final hearing predicated his campaign against the impugned preventive detention order on one point ie., non-application of mind qua detaining authority.

9.In support of this argument, learned Counsel drew our attention to paragraphs 3 and 4 of the grounds of impugned preventive detention order which read as follows: '3.jpU.ruj; vd;gth; K:d;wilg;g[ fhty; epiya Fw;w vz;. 71/2023d; bjhlh;ghf 04.07.2023 md;W ifJ bra;ag;gl;L ehd;Fnehp ePjpj;Jiw eLth; Kd;g[ M$h;gLj;jg;gl;L> ghisaq;nfhl;il kj;jpa rpiwapy; fhty; rpiwthrpahf milf;fg;gl;Ls;shh;. MtuJ fhty; milg;g[ 11.08.2023y; KotilfpwJ. ,e;jpa jz;lid rl;lg;gphpt[ 427> 395> 397 rl;lj;jpd; fPH; ,iHf;fg;gLk; Fw;wq;fs; brhj;JfSf;F vjpuhdit me;j tifapy; ,e;jpa jz;lid rl;lk; ghfk; 17d; fPH; jz;of;fg;glj;jf;fjhFk;.

4.Mtzq;fis ghprPyid bra;jjpypUe;J jpU.ruj; vd;gth; bfhLq;Fw;wq;fs; g[hpe;Jk; mjd; K:yk; bghJ xGq;F guhkhpg;gpw;F Fe;jfkhd tifapy; bray;gl;L tUfpw fhuzj;jhy; mth; jkpH;ehL rl;lk; 14/1982 gphpt[ 2(vg;)y; Fwpg;gplg;gl;Ls;sgo xU Fz;lh; Mthh; vd;gij ehd; kdjhu mwpfpnwd;. nkw;brhd;d " "

bfhLq;Fw;wj;ij gfy; neuj;jpy; gugug;ghd bghJ ,lj;jpy; g[hpe;jjd; K:yk; me;jg;gFjpthH; kf;fspd; kdjpy; gPjpiaa[k;> ghJfhg;gw;w czh;ita[k; Vw;gLj;jp> mjd; K:yk; bghJ xGq;F guhkhpg;gpw;F Fe;jfkhd tifapy; bray;gl;Ls;shh;.'

10.Adverting to the aforementioned two paragraphs in the grounds of impugned preventive detention order, learned Counsel submitted that the entire substratum of the grounds of impugned preventive detention order is constituted by a solitary case but in paragraph No.4 the detaining authority has written that on examination of documents it comes to light that the detenu has committed heinous offences [to be noted 'offences' in plural]. This is a clear case of non-application of mind is learned Counsel's say.

11.In response to the aforementioned arguments learned Prosecutor drew our attention to paragraph No.4 and submitted that in the second sentence 'bfhLq;Fw;wk;' has been set out in singular.

12.We carefully considered the rival submissions.

13.We are inclined to sustain the submission of learned Counsel for HCP petitioner as in the same paragraph ie., paragraph No.4 in one breath the detaining authority refers to 'bfhLq;Fw;wk;' in singular ie., the solitary case which constitutes the substratum of the impugned preventive detention order and in the same breath in the same paragraph refers to 'bfhLq;Fw;wq;fs;' in plural. Therefore it cannot be a mere typographical error. It is a positive articulation by the detaining authority on examination of documents ie., 'Mtzq;fis ghprPyid bra;jjpypUe;J' it comes to light that the detenu has committed 'bfhLq;Fw;wq;fs;' in plural and that has been made the basis for clamping the impugned preventive detention order. Therefore, we sustain the submission of learned Counsel for HCP petitioner and interfere with the impugned preventive detention order. The impugned preventive detention order is being dislodged in the habeas legal drill on hand.

14.Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 31.07.2023 bearing reference M.H.S.Confdl.No.75/2023 made by the second respondent is set aside and the detenu Thiru.Sarath, aged 25 years, son of Thiru.Sasi, 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.]

04.12.2023 Index : Yes/No Internet : Yes/No MR Post Script: Registry to forthwith communicate this order to Jail authorities in Central Prison, Palayamkottai. All concerned are 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 Additional Chief Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009.

2.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.

3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.

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

M.SUNDAR, J. and

R.SAKTHIVEL, J. MR H.C.P.(MD)No.1068 of 2023

04.12.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.12.2023 CORAM: THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.(MD)No.1068 of 2023 P.Geetha : Petitioner Vs. 1.State of Tamil Nadu, Rep. by the Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009. 2.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli. 3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli. : Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the entire records connected with the detention order passed in M.H.S.Confdl.No. 75/2023 dated 31.07.2023 on the file of the second respondent herein and quash the same and direct the respondents to produce the detenu or body of the detenu namely the petitioner's son ie., Sarath, aged about 25 years S/o. Sasi, now detained at the Central Prison, Palayamkottai, before this Court and set him at liberty forthwith. For Petitioner : Mr.N.Pragalathan For Respondents : Mr.S.Ravi Additional Public Prosecutor