Madras High Court
Indradevi vs The Additional Chief Secretary To ... on 17 April, 2023
H.C.P.No.9 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
H.C.P.No.9 of 2023
Indradevi
W/o.Ramiah .. Petitioner/Sister of Detenu
Vs.
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai - 600 009.
2.The Commissioner of Police,
Greater Chennai, Vepery,
Chennai – 600 007.
3.The Inspector of Police,
Central Crime Branch – I,
Vepery, Chennai – 7.
4.The Superintendent of Prison,
Central Prison, Puzhal,
Chennai. .. 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 in connection with
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H.C.P.No.9 of 2023
the order of detention passed by the second respondent dated 12.10.2022 in
Memo No.352/BCDFGISSSV/2022 against the petitioner's brother
N.Karthikeyan, son of Narayanasamy, aged about 48 years who is confined at
Central Prison, Puzhal, Chennai and set aside the same and direct the
respondents to produce the detenu before this Court and set him at liberty.
For Petitioner : Mr.V.Paarthiban
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
assisted by
Mr.M.Sylvester John, Advocate
ORDER
[Order of the Court was made by M.SUNDAR, J.]
Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has
been filed by sister of a detenu assailing a 'preventive detention order dated
12.10.2022 bearing reference 352/BCDFGISSSV/2022' [hereinafter
'impugned detention order' for the sake of convenience and brevity]. To be
noted, third respondent is the sponsoring authority and second respondent is
the detaining authority as impugned detention order has been made by
second respondent.
2. Impugned detention order has been made under 'The Tamil Nadu
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H.C.P.No.9 of 2023
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.
3. There is no adverse case. The ground case which is the sole
substratum of the impugned detention order is Crime No.134 of 2022 on the
file of Central Crime Branch-I for alleged offences under Sections 120(B),
420, 465, 467, 468 and 471 of 'The Indian Penal Code (45 of 1860)'
[hereinafter 'IPC' for the sake of convenience and clarity]. Owing to the
nature of the challenge to the impugned detention order, it is not necessary to
delve into the factual matrix or be detained further by facts.
4. Mr.V.Paarthiban, learned counsel for petitioner and
Mr.R.Muniyapparaj, learned State Additional Public Prosecutor assisted by
Mr.M.Sylvester John, learned counsel for all respondents are before us.
5. To be noted many grounds have been raised in the support affidavit
of captioned HCP but in the hearing Mr.V.Paarthiban, learned counsel for
petitioner posited and predicated his campaign against the impugned
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H.C.P.No.9 of 2023
preventive detention order on one point and that one point turns on Section
8(1) of Act 14 of 1982, which reads as follows:
'8. (1) When a person is detained in pursuance of a
detention order, the authority making the order shall, as soon as
may be, but not later than five days from the date of detention,
communicate to him the grounds on which the order has been
made and shall afford him the earliest opportunity of making a
representation against the order to the State Government.'
6. Adverting to the aforementioned provision of law, learned counsel
submitted that the impugned preventive detention order is dated 12.10.2022,
it was served on the detenu on the same day, i.e., on 12.10.2022 and
therefore 'detention pursuant to the impugned preventive detention order'
was on 12.10.2022. The point is, the 'grounds on which the impugned
preventive detention order has been made' was served on the detenu in the
form of a booklet [hereinafter 'grounds booklet' for the sake of convenience]
only on 17.10.2022. Learned counsel submits that this is a clear infraction of
the statutory requirement qua Section 8(1) of Act 14 of 1982 and such
infraction of a statutorily imperative requirement is fatal qua impugned
preventive detention order is learned counsel's further say.
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H.C.P.No.9 of 2023
7. One point that arises for consideration is whether the date of
detention should be included or excluded in computing this 5 days. To be
noted, the date of detention in the case on hand is 12.10.2022 as already
alluded to supra. We are of the view that the date of detention has to be
included for computing this 5 days and the reason for us to say so
unhesitatingly is the ratio / principle laid down by Hon'ble Supreme Court in
Kapil Wadhawan's case being Enforcement Directorate, Government of
India vs. Kapil Wadhawan and another vide order dated 27.03.2023 in
Crl.A.Nos.701-702 of 2020. While answering a reference on the question as
to whether date of remand is to be excluded or included for computing 60/90
days qua section 167(2) Cr.P.C. default bail. Hon'ble Supreme Court vide a
detailed order declared that date of remand has to be included for computing
60/90 days. We are conscious that this Kapil Wadhawan pertains to remand
but we are of the view that inspiration can be drawn from this case law also
as remand is also curtailment of liberty as much as and akin to preventive
detention order being curtailment of liberty though former is followed by
trial for an alleged offence said to have been committed unlike latter which is
not followed by trial and is for an offence which the detaining authority
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H.C.P.No.9 of 2023
considers to be likely to be committed by the detenue. In Kapil Wadhawan's
case, the relevant paragraphs are paragraphs 6 and 50 which read as follows:
'6. The core issue that arises for consideration is whether the
date of remand is to be included or excluded, for considering a claim
for default bail, when computing the 60/90 day period as
contemplated in proviso (a) of Section 167(2) of the Cr.P.C. The moot
question has been considered by this Court in various cases, but
there is a divergence of opinion on how the stipulated period, for the
right of default bail, accruing to the accused, is to be computed.
Some judgments have favoured the exclusion of date of remand,
while a contrary view is taken in other cases.
50. Since there exists vacuum in the application and details of
Section 167 Cr.P.C., we have opted for an interpretation which
advances the cause of personal liberty. The accused herein were
remanded on 14.05.2020 and as such, the charge sheet ought to
have been filed on or before 12.07.2020 (i.e. the sixtieth day). But
the same was filed, only on 13.07.2020 which was the 61st day of
their custody. Therefore, the right to default bail accrued to the
accused persons on 13.07.2020 at 12:00 AM, midnight, onwards. On
that very day, the accused filed their default bail applications at
8:53 AM. The ED filed the charge sheet, later in the day, at 11:15
AM. Thus, the default bail Applications were filed well before the
charge sheet. In Ravindran(supra) and Bikramjit (supra), which
followed the Constitution Bench in Sanjay Dutt(supra) it was rightly
held that if the accused persons avail their indefeasible right to
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H.C.P.No.9 of 2023
default bail before the charge sheet/final report is filed, then such
right would not stand frustrated or extinguished by any such
subsequent filing. We therefore declare that the stipulated 60/90 day
remand period under Section 167 Cr.P.C. ought to be computed from
the date when a Magistrate authorizes remand. If the first day of
remand is excluded, the remand period, as we notice will extend
beyond the permitted 60/90 days’ period resulting in unauthorized
detention beyond the period envisaged under Section 167 Cr.P.C. In
cases where the charge sheet/final report is filed on or after the
61st/91st day, the accused in our considered opinion would be
entitled to default bail. In other words, the very moment the
stipulated 60/90 day remand period expires, an indefeasible right to
default bail accrues to the accused.'
8. The aforementioned ratio which have been laid down by Hon'ble
Supreme Court speaks for itself very eloquently. It is very clear that the date
of detention has to be included. This means that 'not later than five days'
expression occurring under Section 8(1) of Act 14 of 1982 would mean that
it cannot be later than 16.10.2022. In the case on hand, the grounds on which
the impugned preventive detention order was made was admittedly served on
the detenu only on 17.10.2022. Therefore, there is no difficulty in coming to
the conclusion that there is infraction of Section 8(1) of Act 14 of 1982.
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H.C.P.No.9 of 2023
9. Dealing with infraction of Section 8(1) of Act 14 of 1982, this
Bench in a case of M.Shylaja Vs.The Additional Chief Secretary to
Government and others reported in 2023/MHC/193 has held that such
infraction would lead to dislodgement of impugned preventive detention
order. Therefore we have no hesitation in saying that the impugned
preventive detention order deserves to be dislodged in the case on hand.
10. Ergo, the sequitur is, captioned HCP is allowed. Impugned
detention order dated 12.10.2022 bearing reference 352/BCDFGISSSV/2022
made by the second respondent is set aside and the detenu
Thiru.N.Karthikeyan, aged 48 years, Son of Thiru.Narayanasamy, now
detained in Central Prison, Puzhal, Chennai is directed to be set at liberty
forthwith unless required in connection with any other case/s. There shall be
no order as to costs.
(M.S.,J.) (M.N.K.,J.)
17.04.2023
Index : Yes / No
Speaking / Non-speaking
Neutral Citation : Yes / No
rsi
P.S: Registry to forthwith communicate this order to Jail authorities in
Central Prison, Puzhal, Chennai.
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H.C.P.No.9 of 2023
M.SUNDAR, J.
and
M.NIRMAL KUMAR, J.
rsi
To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai - 600 009.
2.The Commissioner of Police,
Greater Chennai, Vepery,
Chennai – 600 007.
3.The Inspector of Police,
Central Crime Branch – I,
Vepery, Chennai – 7.
4.The Superintendent of Prison,
Central Prison, Puzhal,
Chennai.
5.The Public Prosecutor
High Court, Madras.
H.C.P.No.9 of 2023
17.04.2023
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