Allowed

E.Poongavanam v. State of Tamil Nadu Rep by

Madras HC16 Sept 2019HCP/1319/2019

Case brief

AI extract

What is this about?

Habeas Corpus petition filed by the wife of a detenu challenging an order of preventive detention. The court set aside the detention order due to non-application of mind and deprivation of effective representation caused by failure to substantiate service of arrest intimation.

What did the court decide?

Order of detention No.271/BCDFGISSSV/2019 dated 22.05.2019 set aside; detenu directed to be released forthwith unless detention required in another case.

E.Poongavanam Vs State of Tamil Nadu… — Constitutional and Fundamental Rights | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 16.09.2019

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Coram

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The Hon'ble Mr. Justice M.M.SUNDRESH and The Hon'ble Mr. Justice RMT. TEEKAA RAMAN

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H.C.P. No. 1319 of 2019

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E.Poongavanam ... Petitioner/Wife of the Detenue

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-vs1.State of Tamil Nadu Rep. By its Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009. 2.The Commissioner of Police, Office of the Commissioner of Police, Vepery, Chennai. ... Respondents 1 & 2

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Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus to call for the records in No.271/BCDFGISSSV/2019 dated 22.05.2019 on the file of the second respondent herein to set aside the same and direct the respondents to produce the detenu i.e. the body of Ezhumalai, S/o.Govindasamy, male, aged about 41 years, the detenu detained under Act 14 of 1982 in detention order No.271/BCDFGISSSV/2019 dated 22.05.2019 herein now confined in Central Prison, Puzhal, before this Court and set him at liberty.

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[Order of the Court was made by M.M.SUNDRESH, J.]

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The petitioner is the wife of the detenu, Elumalai, male, aged 41, son of Govindasamy. The detenu has been detained by the second respondent by his order in No.271/BCDFGISSSV/2019

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https://hcservices.ecourts.gov.in/hcservices/

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dated 22.05.2019, holding to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

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2.We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.

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3.Though many grounds have been raised in the petition, learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention. According to the learned counsel appearing for the petitioner, the sponsoring authority has stated in the Arrest Memo at page No.68 of the Booklet furnished to the detenu, that the arrest of the detenu has been intimated to the family member of the detenu. However, there is no material to substantiate the service of arrest intimation stated to have been made to the family member of the detenu. Therefore, it is stated that the detenu was deprived of making an effective representation in the absence of furnishing of full particulars by the detaining authority. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind.

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4.Per contra, the learned Additional Public Prosecutor would submit that the arrest of the detenu has been intimated to the family member of the detenu through SMS. However we find that there are no material particulars to substantiate the same. This Court has also taken the similar view in such cases that the detention order cannot be sustained.

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5.As evidenced from the document in page No.68 of the Booklet furnished to us, a mere endorsement is made by the authorities to the effect that the arrest intimation has been informed to the family member of the detenu through SMS but no materials have been furnished to substantiate that the said intimation was sent through Thapal or Registered post or as per the procedure laid down. Therefore, non-furnishing of details given to the relatives of the detenu would amount to deprivation of the right of the detenu to make an effective representation and the same would vitiate the order of detention and the same cannot be sustained in the eye of law.

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6.It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive

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https://hcservices.ecourts.gov.in/hcservices/

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detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal. The impugned detention order is therefore liable to be quashed.

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In the result, the Habeas Corpus Petition is allowed and the order of detention in No.271/BCDFGISSSV/2019 dated 22.05.2019, passed by the second respondent is set aside. The detenu, namely, Elumalai, male, aged 41, son of Govindasamy is directed to be released forthwith unless his detention is required in connection with any other case.

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Sd/-
Assistant Registrar(CS III)
//True Copy//
Sub Assistant Registrar
mmi
To
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Police,
Office of the Commissioner of Police,
Vepery, Chennai.
3.The Superintendent,
Central Prison, Puzhal, Chennai.
4.The Joint Secretary to Government,
Public (L & O) Fort st. George, Chennai-9.
5.The Public Prosecutor,
High Court, Madras.
H.C.P. No.1319 of 2019
vg II[co]
srg 31/10/2019

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https://hcservices.ecourts.gov.in/hcservices/

E.Poongavanam v. State of Tamil Nadu Rep by

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E.Poongavanam v. State of Tamil Nadu Rep by

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