Madras High Court

H.Parimala vs State Of Tamil Nadu on 24 January, 2023

                                                                H.C.P.Nos.1242, 1248 and 1320 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 24.01.2023

                                                     Coram

                                       The Hon'ble Mr. Justice M.SUNDAR
                                                        and
                                    The Hon'ble Mr. Justice M.NIRMAL KUMAR

                                    H.C.P.Nos. 1242, 1248 and 1320 of 2022

                     H.C.P.No.1242 of 2022

                     H.Parimala                                                     .. Petitioner

                                                         -vs-

                     1. State of Tamil Nadu,
                        Rep. By The Additional Chief Secretary to Government,
                        Home, Prohibition & Excise Department,
                        Secretariat,
                        Chennai – 600 009

                     2. The District Collector and District Magistrate,
                        O/o. The District Collector and District Magistrate,
                        Nagapattinam District
                        Nagapattinam.

                     3. The Superintendent of Police,
                         Nagapattinam District,
                        Nagapattinam.

                     4.The Superintendent,
                       Central Prison,
                       Tiruchirappalli.

                     5. The Circle Inspector of Police
                        Kilvelur Police Station,
                        Nagapattinam District.                                              ...
                                                                                   Respondents

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Petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus calling for the entire records in connection with the detention order passed in C.O.C.No.31/2022 dated 11.06.2022 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's husband namely Hariharan, S/o. Kalamegam, male, aged 27 years, who is detained in Central Prison, Tiruchirappalli, before this Court and set him at liberty.


                                          For Petitioner      ..      Ms.S.Vasavi Sridevi
                                          For Respondents ..          Mr.R.Muniyapparaj
                                                                      Additional Public Prosecutor

                     H.C.P.No.1248 of 2022

                     C.Selvi Ramayi                                                              .. Petitioner

                                                                   -vs-

                     1. State of Tamil Nadu

Rep. By The Additional Chief Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Chennai – 600 009.

2. The District Collector and District Magistrate, O/o. The District Collector and District Magistrate, Nagapattinam District Nagapattinam.

3. The Superintendent of Police, Nagapattinam District, Nagapattinam.

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4. The Superintendent, Central Prison, Tiruchirappalli.

5. The Circle Inspector of Police, Kilvelur Police Station, Nagapattinam District. . Respondents

Petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus, calling for the entire records in connection with the detention order passed in C.O.C.No.32/2022 dated 11.06.2022 on the file of the second respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's son namely Gurubalan, S/o. Chandrasekar, male, aged 23 years, who is detained in Central Prison, Tiruchirappalli, before this Court and set him at liberty.


                                          For Petitioner      ..      Ms.S.Vasavi Sridevi
                                          For Respondents ..          Mr.R.Muniyapparaj
                                                                      Additional Public Prosecutor

                     H.C.P.No.1320 of 2022

                     Mala                                                                       .. Petitioner

                                                                   -vs-

                     1. The State of Tamil Nadu

Rep. by The Additional Chief Secretary to Government Home, Prohibition & Excise Department Secretariat, Chennai – 600 009.

2. The District Collector and District Magistrate, O/o. The District Collector and District Magistrate, Nagapattinam District, Nagapattinam.

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3. The Superintendent of Police, Nagapattinam District, Nagapattinam.

4. The Superintendent, Central Prison, Tiruchirappalli.

5. The Circle Inspector of Police, Kilvelur Police Station, Nagapattinam District. ...

Respondents

Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus to call for the entire records in connection with the detention order passed in C.O.C.No.33/2022 dated 11.06.2022 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's son namely Thamilmaran, S/o.Dhanuskodi, male, aged 23 years, who is detained in Central Prison, Tiruchirappalli, before this Court and set him at liberty.

For Petitioner .. Ms.S.Vasavi Sridevi For Respondents .. Mr.R.Muniyapparaj Additional Public Prosecutor

COMMON ORDER

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

This common order will govern captioned three Habeas

Corpus Petitions ('HCPs' in plural and 'HCP' in singular for the sake

of convenience and clarity). The details that may be imperative for

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appreciating this common order are given in the form of a

tabulation infra:

Sl. HCP No. Name of the Date and Reference No. petitioner No of Detention and Order Relationship with the detenu 1 1242 of H.Parimala/Wif 11.06.2022/C.O.C.No.31 2022 e of the /2022 Detenu 2 1248 of C.Selvi 11.06.2022/C.O.C.No.32 2022 Ramayi/Mother /2022 of the Detenu 3 1320 of Mala/Mother of 11.06.2022/C.O.C.No.33 2022 the Detenu /2022

Further short facts that are imperative for appreciating this

common order are that all three detenus have been detained qua

detention orders made by the second respondent (jurisdictional

District Collector) on the premise that the detenus are Goondas

within the meaning of Section 2(f) of 'The Tamil Nadu Prevention of

Dangerous Activities of Bootleggers, Cyber law offenders, Drug-

Offenders, Forest Offenders, Goondas, Immoral Traffic Offenrders,

Sand-Offenders, Sexual offenders, Slum-Grabbers and Video Pirates

Act, 1982 (Tamil Nadu Act 14 of 1982)' [hereinafter 'Act 14 of 1982'

for the sake of convenience and clarity]; that the adverse cases

pertain to alleged offences under Sections 147, 148, 294(b), 341,

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323, 324, 506(ii) and 147, 148, 294(b), 324, 427, 447, 435, 436,

380 and 307 of Indian Penal Code; that the ground case pertains to

an alleged offence under Section 399 of Indian Penal Code; that

there is allegation of offence under Section 25 (1A) of Arms Act,

1959 also; that the detenus were remanded to judicial custody on

18.04.2022; that the detention orders were made when the detenus

were still in custody of the State; that post remand to judicial

custody on 18.04.2022 the remand was first extended upto

02.05.2022; that thereafter the remand was extended from time to

time and it was last extended upto 13.06.2022; that when the

detenus were in the custody of the State i.e., when they were

lodged in Central Prison, Trichy, the detention orders came to be

made on 11.06.2022; that the details of the detention orders have

already been captured in the tabulation which has been set out

supra elsewhere in this order; that the captioned HCPs have been

filed assailing the detention orders on various grounds.

2. This Court having captured the essential facts shorn of

elaboration and granular particulars now proceeds to consider the

HCP petitioners' campaign against the detention orders. Ms.Vasavi

Sridevi, learned counsel for petitioners in all three captioned

matters who is before us, notwithstanding very many grounds that

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have been raised in the support affidavit focused her submission on

three points and they are as follows:

2.1 There is infraction/violation of Section 8(1) of

Act 14 of 1982 as the ground on which the detention

orders have been made has not been communicated to

the detenus within five days from the date of detention

(to be noted, the grounds have been served on the

detenus by the prison authorities in the form of a

booklet and therefore the same shall be referred to as

'booklet' for convenience). It is also to be noted that

this ground has been urged as ground (f) in the

support affidavit.

2.2 There is violation of Article 22 sub clause (1)

of the Constitution of India as the ground of arrest or

arrest itself has not been informed to a relative/near

friend. To be noted, this is ground (b) in petitioners'

affidavit.

2.3 There is no imminent possibility of the

detenus being enlarged on bail as the detenus moved a

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bail petition vide Crl.M.P.No. 2044 of 2022 on the file of

the Judicial Magistrate No.I, Nagapattinam, the bail

petition came to be dismissed on the same day

(20.04.2022) and thereafter, the detenus have not

moved any bail petition. The detention orders have

been made on 11.06.2022 inter-alia on the premise of

imminent possibility of enlargement on bail.

3. In response to the aforementioned grounds raised by

the learned counsel for HCP petitioners, Mr.R.Muniyapparaj, learned

Additional Public Prosecutor appearing on behalf of all the

respondents instructed by the police authorities concerned, made

submissions which are as follows:

3.1 As regards Section 8(1) violation, Prosecutor

would submit that the grounds of detention have been

communicated within time but it is kept in a particular

place in prison and it has to be collected by the detenus.

3.2 As regards Article 22(1) violation/infraction, it

was submitted that the detenu's uncle in one case and

friend in other two cases one Baranikumar was duly

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informed and it is indicated in the arrest memos.

3.3 As regards imminent possibility of being

enlarged on bail, it was submitted, that it appears that

steps are being taken for moving bail application on

behalf of the detenus.

4. By way of reply, learned counsel for HCP petitioners

reiterated her arguments in the opening submissions.

5. This Court having captured the rival submissions now

proceeds to discuss the same and give its dispositive reasoning infra

in the paragraphs to follow.

6. Before we do that, we remind ourselves of two

aspects/facets of preventive detention jurisprudence. One facet is,

preventive detention is not a punishment as held by Honourable

Supreme Court in the oft quoted Ashok Kumar's case i.e., Ashok

Kumar V. Delhi Administration and Ors. reported in (1982) 2

SCC 403. The second facet is declaration of law by a Constitution

Bench in the celebrated judgment in Dr. Ram Manohar Lohia vs

State Of Bihar And Others reported in AIR 1960 SC 740 and

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more particularly paragraphs 51 and 52 thereat where the

Honourable Supreme Court has elucidatively and by resorting

illustrative approach articulated the clear distinction between 'law

and order' and 'public order'.

7. We now proceed to deal with the points canvassed

sequentially. As regards the first point, the same deals with Section

8(1) of Act 14 of 1982. A careful reading of Section 8(1) leads to

the inevitable conclusion that it is a codified numeric expression of

the constitutional guarantee qua Article 22 (5) of the Constitution of

India. Section 8(1) of Act 14 of 1982 reads as follows:

'8. Grounds of order of detention to be

disclosed to persons affected by the order.-(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.

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In this view of the matter, we have no hesitation in coming to

the conclusion that there has been delay, as the detenus were

detained on 18.04.2022 and remanded to custody and they

continued to be in detention upto 13.06.2022 whereas the detention

orders that were made on 11.06.2022 when the detenus were in

State custody but served on them only on 21.06.2022. A scanned

reproduction of a typical page in the booklet is as follows:

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8. To be noted, the seal is the same in all the cases and

therefore we have scanned and reproduced one page in one of the

cases which speaks for itself. It is clear that grounds of detention

qua the impugned detention orders have been communicated to the

detenus only on 21.06.2022 post noon i.e., at 12.45 p.m. though

the detention orders were made on 11.06.2022 on which day the

detenus were already under detention i.e., State custody. This is a

clear violation of Section 8(1) of Act 14 of 1982 i.e., the very Act

under which preventive detention orders have been clamped on the

detenus. As already alluded to supra, Section 8(1) being a codified

numeric facet of Article 22(5) of the Constitution of India, Section

8(1) is statutorily imperative for ensuring the constitutional

guarantee of giving earliest opportunity to the detenu to make an

effective representation to the State. It is also to be noted that this

is ingrained in the second part of Section 8(1) which has been

extracted and reproduced supra. This by itself good enough

dispositive reasoning qua first point is in favour of the HCP

petitioners.

9. We also deem it appropriate to record that the

aforementioned ground wherein Section 8(1) of Act 14 of 1982 has

been raised as ground (f) reads as follows:

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'(f) That the detaining authority passed the detention order on 11.06.2022 and furnished the booklet to the detenue after 5 days from the date of passing the detention order. It shows that the detaining authority has prevented the detenue from making the effective representation to the Government and clear violation of Sec.8(1) of the Act 14/1982.'

Ground (f) has been met by the State in the counter

affidavit in the following manner:

'Ground 'f': It is respectfully submitted that the averments of the petitioner herein in grounds 'f' of the affidavit are denied as false since the booklet had been served on the detenu within the time stipulated and the detenu had also made effective representations towards his detention. The averment of the petitioner is devoid of merit.'

10. A bare perusal of the counter affidavit brings to

light that there is nothing to demonstrate that grounds of detention

qua the impugned detention orders were communicated to the

detenu within five days from the date of detention. The counter

affidavit does not also throw any light to demonstrate that the

grounds of detention were communicated to the detenu within five

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days from the date of the detention in any event the oral

submission made by the learned Additional Public Prosecutor have

already been dealt with supra.

11. In this regard, we deem it apposite to usefully refer to

our order dated 19.01.2023 in M.Shylaja Vs. Additional Chief

Secretary to Government and Others (reported in Neutral

Citation of this Court being 2023/MHC/193), wherein in a

similar Act 14 of 1982 detention, we drew inspiration from ratio in

Malleeswari Vs. State Government, rep. By the Secretary to

Government and another reported in (2011) 1 MLJ (Crl) 513

(rendered by another Hon'ble Division Bench of this Court) and held

as follows in paragraphs 9 to 12:

'9. In this regard, we draw inspiration from ratio in Malleeswari Vs. State Government, rep. By the Secretary to Government and another reported in (2011) 1 MLJ (Crl) 513, wherein a Hon'ble Division Bench of this Court has held that delay in supplying copy of detention order, grounds and connected papers to the detenu i.e., delay beyond 5 days from the date of detention is clearly violation of Section 8(1) of Act 14 and that by itself becomes a ground to make an order setting aside the detention. To be noted, in Malleeswari case also, the detention was under Act 14 albeit as a 'Goonda' and detenu was in prison.

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10. We notice one other feature and that is in all the detention orders, the provision of law has been mentioned as Section 2(ggg), whereas it is Section 2(1)(ggg) of Act 14 of 1982 as detention is posited on 'sexual offenders' but leave this issue open in this order as it is not clear if it is a misprint in this book titled 'A Handbook of Preventive Laws' [October 2021, Third edition] by S.Sambandham / V.S.Rajaram and published by C.Sitaraman & Co. Pvt. Ltd., as Gazette publication of ordinance [Ordinance 1 of 1982 published in Tamil Nadu Government Gazette on 05.01.1982] does not have sub-section (1).

11. With regard to custodial jurisprudence, in Pattammal Vs. District Magistrate and Collector Nagai and Others reported in 1995(1) CTC 335, which is also under Act 14 of 1982, a Hon'ble Division Bench of this Court dealing with detention under Act 14 has held that Section 8 of Act 14 of 1982 is intented to confer a right for detenu qua an opportunity to make a representation against an order of detention.

12.We have noticed that the language in which Section 8 of Act 14 of 1982 is couched makes it clear that 'not later than five days' is from the date of detention. In the cases on hand, the detenues were already under detention. This is one facet of the matter. Another facet of the matter is, on detention orders being made, preventive detention of the detenus operates and in the cases on hand, the grounds of detention have been served beyond five days from the date of detention orders. A scanned reproduction of undisputed seal of the prison authorities in one of the cases [HCP No.1182 of 2022] as an illustration is as follows:

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12. Notwithstanding this dispositive reasoning, we now

proceed to deal with other two points that have been raised turning

on Article 22(1) of the Constitution of India. We are very clear in

our mind that Article 22(1) does not apply to preventive detention

under any law providing for preventive detention owing to Article 22

(3)(b). The sub-clauses (1) to (3) of Article 22 read as follows:

'22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest

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magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply—

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive detention.'

13. However, Article 22(5) comes to the rescue of the HCP

petitioners qua delay in communicating grounds of detention and

Article 22(5) reads as follows:

'22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.'

14. It is also to be noted that Article 22(1) argument of the

HCP petitioners is more in the nature of the ground case and not in

the nature of the detention orders. In this view of the matter, we

perused the arrest memos in the cases. From the arrest memos, we

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find that the factum of detention in ground case has been informed

to one Baranikumar, we are of the view that Baranikumar is uncle of

the detenu in H.C.P. No.1242 of 2022 and is a friend as regards the

detenus in H.C.P. Nos.1248 and 1320 of 2022. In this view of the

matter, the counter affidavit of the State becomes imperative. As

already alluded to supra, Article 22(1) ground has been raised as

ground (b) in the HCP affidavit and the same is as follows:

'(b) That the sponsoring authority has failed to inform the arrest of the detenue in ground case to parents, family members and friends of the detenue. It is a violation of Article 22(1) of our Constitution of India and the authority did not follow the dictum laid down by the Hon'ble Apex Court in D.K.Basu Vs. State of West Bengal case.'

Ground (b) has been met in the counter affidavit of the State

in the following manner:

'Ground 'b': With regards to the averments of the petitioner herein in ground 'b' it is humbly submitted that Tmt.Parimala, wife of the detenu was informed of his arrest and acknowledgement obtained from her.

Hence, the averment of the petitioner is incorrect and devoid of merits.'

15. The above makes it clear that it is the stated position of

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detenu's wife Tmt.Parimala (petitioner in HCP No.1242 of 2022 as

far as that detenu is concerned) whereas the arrest memo shows

the name of one Baranikumar. This by itself makes it clear that

there is infraction of Article 22(1) and further elucidation or other

enquiry in this direction is not necessary as that is really outside the

realm of matter at hand.

16. We now move on to the third point. In the grounds of

detention itself, it has been made clear that the bail petition filed by

the detenus was dismissed on the same day i.e., 20.04.2022 by the

jurisdictional Magistrate. There is no disputation or contestation or

disagreement before us that the detenus have not moved any bail

petition thereafter. This itself makes it clear that the imminent

possibility of the detenus being enlarged on bail point also becomes

a non-starter.

17. To be noted, careful perusal of grounds of detention,

more particularly paragraph 4 thereat brings to light that imminent

possibility of being enlarged on bail is only an inference not even in

the realm of surmises and conjectures made by the detaining

authority. The relevant portion of the detention order (in H.C.P.

No.1242 of 2022) reads as follows:

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'4. ........ Hence, I infer that there is real possibility of Thiru.Hariharan, Male, age 27/2022, S/o.Kalamegam, coming out on bail by filing a bail application for the above case before the appropriate court and higher court. If he comes out on bail, he will indulge in such further activities, which will be prejudicial to the maintenance of public order and public peace. Further, the recourse to normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance to the public order and public peace.'

18. Apropos the sequitur of the discussion and dispositive

reasoning set out supra is that all the three detention orders

bearing C.O.C. No.31 of 2022, C.O.C.No.32 of 2022 and C.O.C.

No.33 of 2022 dated 11.06.2022 made by the second respondent

are set aside and the detenus - Hariharan, aged 27 years,

S/o.Kalamegam (H.C.P. No.1242 of 2022), Gurubalan, aged 23

years, S/o.Chandrasekar (H.C.P. No.1248 of 2022 and Thamilmaran,

aged 23 years, S/o.Dhanuskodi (H.C.P. No.1320 of 2022) are

directed to be set at liberty forthwith unless required in connection

with any other case. There shall be no order as to costs in these

cases.

[M.S., J.] [M.N.K., J.] 24.01.2023