Allowed

Anitha v. State of Tamil Nadu

Madras HC22 Nov 2022HCP/723/2022

Case brief

AI extract

What is this about?

The High Court allowed a habeas corpus petition challenging a preventive detention order. It set aside the order of detention under the Tamil Nadu Act 14 of 1982 because the detaining authority failed to provide material evidence proving the detenu was informed of his arrest, thereby violating constitutional safeguards for personal liberty.

What did the court decide?

The order of detention in BCDFGISSSV No.40/2022 dated 31.03.2022 is set aside, and the detenu is directed to be released forthwith unless detention is required in another case.

Anitha Vs State of Tamil Nadu — Constitutional and Fundamental Rights | Madras HC (2022)

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H.C.P.No.723 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 22.11.2022

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Coram

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The Honourable Mr. Justice P.N.PRAKASH and The Honourable Mr. Justice G.CHANDRASEKHARAN

H.C.P.No.723 of 2022

Anitha

.. Petitioner

1.State of Tamil Nadu represented by

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its Secretary to Government, Department of Prohibition and Excise (Home), Fort St.George, Chennai-600 009.

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2.The Commissioner of Police, Tambaram City, Office of the Commissioner of Police, Sholinganallur,

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Chennai – 600 119.

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3.The Inspector of Police, H-2, Guduvancherry Police Station,

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Chennai.

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4.The Superintendent of Prison, Central Prison – II, Puzhal, Chennai.

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.. Respondents

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Page 1 of 7

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https://www.mhc.tn.gov.in/judis

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H.C.P.No.723 of 2022

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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 BCDFGISSSV No.40/2022 dated 31.03.2022 on the file of the second respondent herein and set aside the same as illegal and produce the detenu Rajesh, S/o.Kanniyappan, aged about 29 years, who is confined at the Central Prison, Puzhal, Chennai, before this Court and set him at liberty.

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For Petitioner : Mr.Ilayaraja Kandasamy For Respondents : Mr.R.Muniyapparaj Addl. Public Prosecutor

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ORDER

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(Made by P.N.PRAKASH, J. )

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The petitioner is the wife of the detenu Rajesh, S/o.Kanniyappan, aged about 29 years. The detenu has been detained by the second respondent by his order in BCDFGISSSV No.40/2022 dated 31.03.2022, holding him 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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https://www.mhc.tn.gov.in/judis

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H.C.P.No.723 of 2022

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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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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 Nos.99 and 100 of the booklet furnished to the detenu, that the arrest of the detenu has been intimated to the wife of the detenu. However, there is no material to substantiate the service of arrest intimation stated to have been made to the wife 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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Per contra , the learned Additional Public Prosecutor would

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https://www.mhc.tn.gov.in/judis

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submit

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H.C.P.No.723 of 2022

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submit that the arrest of the detenu has been intimated to the wife of the detenu through SMS.

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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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As evidenced from the document in Page Nos.99 and 100 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 wife 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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It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional

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https://www.mhc.tn.gov.in/judis

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H.C.P.No.723 of 2022

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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 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 BCDFGISSSV No.40/2022 dated 31.03.2022, passed by the second respondent is set aside. The detenu, viz . Rajesh, S/o.Kanniyappan, aged about 29 years, is directed to be released forthwith unless his detention is required in connection with any other case.

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(P.N.P., J.) (G.C.S., J.) 22.11.2022

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Index: Yes/No nsd

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Page 5 of 7

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https://www.mhc.tn.gov.in/judis

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H.C.P.No.723 of 2022

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1.The Secretary to Government, Department of Prohibition and Excise (Home), Fort St.George, Chennai-600 009.

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2.The Commissioner of Police, Tambaram City, Office of the Commissioner of Police, Sholinganallur, Chennai – 600 119.

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3.The Inspector of Police, H-2, Guduvancherry Police Station, Chennai.

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4.The Superintendent of Prison, Central Prison – II, Puzhal, Chennai.

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5.The Joint Secretary to Government of Tamil Nadu, Public, Law and Order Department, Secretariat, Chennai – 9.

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6.The Public Prosecutor, High Court, Madras.

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Page 6 of 7

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https://www.mhc.tn.gov.in/judis

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H.C.P.No.723 of 2022

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P.N.PRAKASH, J. and G.CHANDRASEKHARAN, J.

nsd

H.C.P.No.723 of 2022

22.11.2022

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https://www.mhc.tn.gov.in/judis

Anitha v. State of Tamil Nadu

Case brief

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Anitha v. State of Tamil Nadu

Case brief

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