Allowed

Prabha v. the Additional Chief Secretary to Government, Home

Madras HC15 Sept 2023HCP/1357/2023

Case brief

AI extract

What is this about?

In this Habeas Corpus petition, the Madras High Court set aside a preventive detention order made under the Tamil Nadu Prevention of Dangerous Activities Act, 1982. The Court held that there was unexplained delay in providing grounds of detention and quashed the impugned order, directing the release of the detenu.

What did the court decide?

Impugned preventive detention order dated 07.04.2023 set aside; detenu Prabakaran directed to be set at liberty forthwith.

Prabha Vs the Additional Chief… — Constitutional and Fundamental Rights | Madras HC (2023)

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H.C.P.No.1357 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 15.09.2023

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CORAM

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THE HONOURABLE MR.JUSTICE M.SUNDAR and

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THE HONOURABLE MR.JUSTICE R.SAKTHIVEL

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H.C.P.No.1357 of 2023

Prabha

.. Petitioner

1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai – 9.

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2.District Magistrate and District Collector, Tiruppur District, Tiruppur.

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3.The Superintendent of Police, Tiruppur District.

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4.The Superintendent, Central Prison, Coimbatore.

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5.The Inspector of Police, Perumanallur Police Station, Tiruppur District. .. Respondents

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Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records relating to the detention order passed by the second respondent pertaining to the order made in Cr.M.P.No.13/Drug Offender/2023 dated 07.04.2023 in detaining the detenu under Section 2(e) of Tamil

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

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H.C.P.No.1357 of 2023

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Nadu Act 14 of 1982 as a Drug Offender and quash the same and direct the respondents to produce the detenu Prabakaran, son of (late) Mahendhiran, aged about 25 years, who is detained at Central Prison, Coimbatore before this Court and set him at liberty.

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For Petitioner : Mr.G.Nirmal Krishnan For Respondents : Mr.E.Raj Thilak Additional Public Prosecutor

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ORDER

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

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This order will now dispose of captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity, convenience and clarity].

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2. When the captioned HCP was listed for Admission on 26.07.2023, the following proceedings/order was made:

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'H.C.P.No.1357 of 2023

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M.SUNDAR, J. and

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R.SAKTHIVEL, J.

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(Order of the Court was made by M.SUNDAR, J .,)

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Captioned Habeas Corpus Petition has been filed in this Court on 17.07.2023 inter alia assailing a 'detention order dated 07.04.2023 bearing reference Cr.M.P.No.13/Drug Offender/2023' (hereinafter 'impugned preventive detention order' for the sake of convenience and clarity) made by 'second respondent'

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H.C.P.No.1357 of 2023

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[hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fifth respondent is the Sponsoring Authority.

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2. To be noted, mother of the detenu is the petitioner.

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3. Mr.G.Nirmal Krishnan, learned counsel on record for petitioner submits that ground case qua the detenu is for alleged offences under Section 8(c) r/w 20(b)(ii)(C) of 'Narcotic Drugs and Psychotropic Substances Act, 1985' [hereinafter 'NDPS Act' for the sake of convenience and clarity] in Crime No.72 of 2023 on the file of Perumanallur Police Station.

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4. The aforementioned impugned preventive detention order has been made on the premise that the detenu is a 'Drug Offender' under Section 2(e) of 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drugoffenders, 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].

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5. The impugned preventive detention order has been assailed inter alia on the ground that some of the pages in the booklet furnished to the detenu are illegible.

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6. Prima facie case made out for admission. Admit. Issue Rule Nisi returnable by four weeks.

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7. Mr.E.Raj Thilak, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly. '

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3. The aforementioned proceedings/order dated 26.07.2023

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captures all essentials i.e., essential facts imperative for appreciating this final order and therefore we are not setting out the facts again. Suffice to say that the aforementioned Admission Board order dated 26.07.2023 shall now be read as an integral part and parcel of the instant final order. This also means that the short forms, short

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H.C.P.No.1357 of 2023

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references and abbreviations used in the aforementioned Admission Board order will continue to be used in the instant final order also.

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4. As would be evident from paragraph 5 of the Admission Board order, learned counsel for the petitioner has predicated his campaign against the impugned preventive detention order on the point that some of the pages in the booklet furnished to the detenu are illegible but today in the Final Hearing Board, 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 02.03.2023 but the impugned preventive detention order has been made only on 07.04.2023.

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5. 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 unacceptable.

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6. We remind ourselves of Sushanta Kumar Banik's case

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[ 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.

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7 . To be noted, Banik case has been respectfully followed by

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this Court in Gomathi Vs.The Principal Secretary to Government and others reported vide Neutral Citation of Madras High Court being

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2023/MHC/334, Sadik Basha Yusuf Vs. The State of Tamil

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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.

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8 . The adverse case cited in the grounds of impugned preventive

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detention order pertains to the year 2021 (date of occurrence 18.09.2021) and therefore time consumed remains unexplained.

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

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10. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 07.04.2023 bearing reference Cr.M.P.No.13/Drug Offender/2023 made by the second respondent is set aside and the detenu Thiru.Prabakaran, aged 25 years, Son of (late) Thiru.Mahendhiran, is directed to be set at liberty forthwith, if

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H.C.P.No.1357 of 2023

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not required in connection with any other case / cases. There shall be

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no order as to costs.

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(M.S.,J.) (R.S.V.,J.) 15.09.2023