Madras High Court
Amirtham vs The State Of Tamil Nadu on 30 January, 2023
H.C.P.No.1089 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.01.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
H.C.P.No.1089 of 2022
Amirtham
W/o.Ganesh .. Petitioner
Vs.
1. The State of Tamil Nadu
Rep. by its Secretary to Government
Prohibition and Excise Department
Fort St.George, Chennai-9.
2. The District Collector and District Magistrate
Office of the District Collector
Coimbatore.
3. The Superintendent of Police
Special Prison for Women
Central Prison
Coimbatore.
4. The Superintendent of Police
Superintendent of Police Office
Coimbatore.
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H.C.P.No.1089 of 2022
5. The Inspector of Police
Cyber Crime Police Station
Coimbatore. .. 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 relating to the
petitioner's daughter detention under Tamil Nadu Act 14 of 1982 vide
detention order, dated 23.02.2022 on the file of the second respondent
herein made in proceedings Memo Cr.M.P.No.06/Cyber Crime
Offender/2022/E1, quash the same as illegal and consequently, direct the
respondents herein to produce the petitioner's daughter namely
Subbulakshmi @ Rowdy Baby Surya, W/o.Balavinayagam, aged 35 years
before this Hon'ble High Court and set the petitioner's daughter at liberty
from detention, now the petitioner's daughter detained at Special Prison for
Women, Central Prison, Coimbatore.
For Petitioner : Mr.M.Mohamed Saifulla
representing Mr.D.Balaji
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of
brevity and convenience] has been filed in this Court on 07.06.2022
assailing a 'detention order dated 23.02.2022 bearing reference
Cr.M.P.No.06/Cyber Law/Offender/2022/E1' [hereinafter 'impugned
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detention order' for the sake of convenience and clarity] made by the second
respondent being jurisdictional District Collector. Impugned detention order
has been made on the premise that the detenue is a 'Cyber Law Offender'
within the meaning of Section 2(bb) of '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].
2. There are two adverse cases and one ground case.
3. The ground case is for alleged offences under Sections 294(b),
354(A), 354(D), 509 read with 109 IPC, 66(D), 67 of Information
Technology Act, 2000 and Section 4 of Tamil Nadu Prohibition of
Harassment of Women Act, 2002 in Crime No.25 of 2021 on the file of
Coimbatore District Cyber Crime Police Station. The Additional Mahila
Court, Coimbatore is in seizin of this case.
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4. Owing to legal perimeter of a habeas corpus petition qua merits of
ground / adverse cases and nature of grounds on which the impugned
detention order is being assailed before us, it is not necessary to dilate
further on facts. To put it differently it is not necessary to be detained by
facts.
5. Mr.M.Mohamed Saifulla, learned counsel representing the counsel
on record for habeas corpus petitioner and Mr.R.Muniyapparaj, learned
Additional Public Prosecutor for all the four respondents are before us.
6. To be noted, fifth respondent who is jurisdictional Inspector of
Police is the Sponsoring Authority.
7. Notwithstanding very many grounds raised in the affidavit in
support of HCP, learned counsel for petitioner predicated, posited and
projected his arguments before us on three points. The three points together
with discussion and dispositive reasoning for the same are as follows:
(i) The first point is delay in making the impugned
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detention order. To put it in legal parlance, 'live and proximate
link' between the grounds of detention and purpose of detention
has snapped. This has been articulated by habeas corpus
petitioner in ground (F) of the support affidavit which reads as
follows:
'F. The detenue was arrested in the ground case on
04.01.2022 and remanded to the custody on the very same
day but the detention order came to be passed only on
23.02.2022 and it is delay of 19 days which is not a
considerable belated and there is no explanation on the
part of the detaining authority.'
This ground (F) has been met in the counter affidavit in sub-
paragraph (d) of paragraph No.3 which reads as follows:
'd). It is submitted that the delay between the date of
arrest (04.01.2022) and the date of Detention Order
(23.02.2022) is not a major delay to defeat the subjective
satisfaction arrived in this case from the materials available
in the ground case. Hence the Detention Order is not liable
to be quashed.'
A careful perusal of 'live and proximate link' point as raised by
habeas corpus petitioner and the manner in which the same has
been explained by the State leaves us with the considered view
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H.C.P.No.1089 of 2022
that there is nothing to demonstrate that the live and proximate
link between the grounds of detention and purpose of detention
have not snapped. In this regard, we remind ourselves of recent
judgment of Hon'ble Supreme Court in Sushanta Kumar Banik
Vs. State of Tripura & others reported in 2022 LiveLaw (SC)
813. Banik case law is one where there was an arrest under
'Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988' [hereinafter 'PITNDPS Act' for the sake
of brevity] in Tirupura. After referring to the proposal
submitted by the jurisdictional Superintendent of Police and the
trajectory the matter took, Hon'ble Supreme Court held that
when the question as to whether the delay is unreasonable and
more particularly, when the question as to whether the delay
stands unexplained depends on the facts and circumstances of
each case. To be noted, in Banik case law, Hon'ble Supreme
Court held that the delay remains unexplained. In the case on
hand, in the light of ground (F) articulated in the affidavit and
in the light of the reply by the State made in paragraph 3 of the
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counter affidavit we are left with the considered view that 'live
and proximate link' between the grounds and purpose of
detention has snapped point should have been explained with
clarity and specificity. This means that snapping of live and
proximate link point projected as delay is unexplained but as it
does not come across as 'unreasonable' delay owing to facts and
circumstances of case we hold that this point in this case does
not aid the petitioner and move on to the next two points
canvassed / urged before us.
(ii) The next ground turns on providing the orders of
extension of remand. As already alluded to supra, the detenue
was remanded to judicial custody in the ground case on
04.01.2022. Thereafter, there have been as many as three
extensions of remand on 12.01.2022, 25.01.2022 and
08.02.2022. This has been not only noticed but also neatly
captured by the Detaining Authority (second respondent) in the
impugned detention order and relevant part of detention order
reads as follows:
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'In this case, ........................ and ................. were
produced before the Judicial Magistrate, Additional Mahila
Court, Coimbatore along with the seized properties on
04.01.2022 and as per the order of the Court. ............... was
sent to judicial custody at Special Prison for Women, Central
Prison, Coimbatore till 12.01.2022 and .................... was sent
to judicial custody at Sub Jail, Pollachi till 12.01.2022.
Thereafter, .................. was produced before the Judicial
Magistrate, Additional Mahila Court, Coimbatore on
12.01.2022 through Video Conference and her judicial
remand was extended till 25.01.2022. Thereafter, ..................
was produced before the Judicial Magistrate, Additional
Mahila Court, Coimbatore on 25.01.2022 through Video
Conference and her judicial remand was extended till
08.02.2022. Further she and her judicial remand has been
extended upto 22.02.2022. Now she is in judicial custody at
Special Prison for Women, Central Prison, Coimbatore.
This case is under investigation.'
The grounds of detention is communicated to the detenue who
is incarcerated has been placed before us. This is referred to as
'booklet' for the sake of convenience. A careful perusal of this
booklet makes it clear that three successive orders of extension
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of remand made on 12.01.2022, 25.01.2022 and 08.02.2022
have not been annexed in the grounds though the same has
been clearly referred to in the impugned detention order. This
in our considered view certainly hampers the rights of the
detenue to make an effective representation which is a
constitutional guarantee ingrained in sub-clause (5) of Article
22 of Constitution of India. Therefore, we hold that this point
also enures to the benefit of the petitioner in the petitioner's
campaign against the detention order.
(iii) The third points turns on imminent possibility of the
detenue being enlarged on bail. For this aspect of the matter,
the impugned detention order relies on what is referred to as
'similar case'. As regards similar case, relevant portions of the
grounds of detention read as follows:
'....... In the similar case which was registered in
Virudhunagar District Cyber Crime Police Station
Cr.No.04/2021 u/s 354(A) IPC and 67, 67(A) of Information
Technology Act, 2000 r/w 4 of Tamil Nadu Prohibition of
Harassment of Women Act 2002, condition bail was granted
to Veeraputhiran @ Viji (26) S/o.Veeraputhiran vide
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C.M.P.No.1883/2021 dated 22.07.2021 by the Court of
Judicial Magistrate-II of Sattur, Virudhunagar District and
he was enlarged on bail. Hence there is a real possibility
................'
A careful perusal of similar case, wherein the bail petition itself
has been annexed in pages 155 onwards of the booklet (to be
noted, the bail order is annexed at pages 162 and 163 of the
booklet) makes it clear that the case of Veeraputhiran on the file
of Judicial Magistrate No.II, Sattur (Virudhunagar District), it is
not one under Sections 509 read with 109 of 'Indian Penal
Code' ['IPC']. To be noted, Section 509 pertains to Word,
gesture or act intended to insult the modesty of a woman and
Section 109 is abetment of the same.
8. Considering the facts and circumstances of the case it is clear that
as regards similar case it is a comparison between Apples and Oranges or
Chalk and Cheese. Therefore, the subjective satisfaction qua imminent
possibility of the detenue being enlarged on bail has been arrived at by
embarking upon the exercise which may be a comparison of Apples and
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H.C.P.No.1089 of 2022
Oranges. The sequitur is, this point also enures to the benefit of the habeas
corpus petitioner.
9. Ergo, the sequitur is, captioned HCP is allowed. Impugned
detention order dated 23.02.2022 bearing reference Cr.M.P.No.06/Cyber
Law Offender/2022/E1 made by the second respondent is set aside and the
detenue Tmt.Subbulakshmi @ Rowdy Baby Surya, Wife of Balavinayagam
is directed to set at liberty forthwith, if not required in connection with any
other case / cases.
10. Captioned HCP ordered on the above terms. There shall be no
order as to costs.
(M.S.,J.) (M.N.K.,J.)
30.01.2023
Index : Yes / No
Speaking / Non-speaking
Neutral Citation : Yes / No
mk
P.S: Registry to forthwith communicate this order to Jail authorities in
Special Prison for Women, Central Prison, Coimbatore.
M.SUNDAR, J.,
and
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H.C.P.No.1089 of 2022
M.NIRMAL KUMAR, J.,
To
1. The State of Tamil Nadu
Rep. by its Secretary to Government
Prohibition and Excise Department
Fort St.George, Chennai-9.
2. The District Collector and District Magistrate
Office of the District Collector
Coimbatore.
3. The Superintendent of Police
Special Prison for Women
Central Prison
Coimbatore.
4. The Superintendent of Police
Superintendent of Police Office
Coimbatore.
5. The Inspector of Police
Cyber Crime Police Station
Coimbatore.
6. The Public Prosecutor
High Court, Madras.
H.C.P.No.1089 of 2022
30.01.2023
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