Madras High Court
Shalini vs State Of Tamil Nadu on 5 June, 2023
H.C.P.No.2476 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.06.2023
Coram
THE HON'BLE MR.JUSTICE M.SUNDAR
and
THE HON'BLE MRS JUSTICE K. GOVINDARAJAN THILAKAVADI
H.C.P.No.2476 of 2022
Shalini .. Petitioner
vs
1.State of Tamil Nadu
Rep. By the Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George, Chennai – 09.
2.The District Collector and District Magistrate of
Nagapattinam District,
Office of the District Collector and District Magistrate,
Nagapattinam District, Nagapattinam.
3.The Superintendent of Police,
Nagapattinam, Nagapattinam District.
4.The Superintendent of Prison,
Central Prison,Thiruchirappalli,
Thiruchirappalli District.
5.The Inspector of Police,
Velankanni Police Station,
Nagapattinam District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of habeas corpus calling for the records relating to
the detention order in C.O.C.No.50/2022 dated 20.10.2022 passed by
the 2nd respondent under the Tamil Nadu Act 14 of 1982 and set aside
https://www.mhc.tn.gov.in/judis
1/14
H.C.P.No.2476 of 2022
the same and direct the respondents to produce the petitioner's
husband Anto @ Panneer Selvam, S/o. Balaraman, aged about 25 years
the detenu, now confined in Central Prison, Thiruchirappalli before this
Court and set the petitioner's husband Anto @ Panneer Selvam, S/o.
Balaraman, aged about 25 years the detenu herein at liberty.
For Petitioner : Mr.S.Senthilvel
for Mr.M.Machavatharan
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
assisted by
Mr.M.Sylvester John
ORDER
[Order of the Court was made by M.SUNDAR, J.]
Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake
of convenience and brevity] has been filed by wife of the detenu
assailing 'detention order dated 20.10.2022 bearing reference
C.O.C.No.50/2022' [hereinafter 'impugned detention order' for the sake
of convenience]. To be noted, the fifth respondent is the sponsoring
authority and the second respondent is the detaining authority as
impugned detention order has been made by the second respondent.
2. Impugned detention order has been made under 'The Tamil
Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law
offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
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.288 of 2022
on the file of Velankanni Police Station for alleged offences under
Sections 147, 148, 449, 307 and 302 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.S.Senthilvel, learned counsel representing counsel on record
for petitioner and Mr.R.Muniyapparaj, learned State Additional Public
Prosecutor assisted by Mr.M.Sylvester John for all respondents are
before us.
5. In the support affidavit, very many points/grounds have been
urged/raised but two points projected in the arguments in the hearing
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
find favour with us and therefore we would set out those two points
infra and refrain from examining the other points in the instant legal
drill on hand.
6. The first point urged by learned counsel for petitioner is that
there is infraction/violation of Section 8(1) of Act 14 of 1982 as the
grounds on which the detention order has been made has not been
communicated to the detenu within five days from the date of detention
(To be noted, the grounds have been served to the detenus by the
prison authorities in the form of a booklet and therefore the same shall
be referred to as 'said booklet').
7. Adverting to the aforementioned provision of law, learned
counsel submitted that the date of detention order and detention
pursuant to preventive detention order is 20.10.2022, it was served on
the detenu on the next day i.e., on 21.10.2022 but the 'grounds on
which the impugned preventive detention order has been made' was
served on the detenu in the form of said booklet only on 27.10.2022.
This point has been raised by the detenu in ground (g) of the support
affidavit and the same reads as follows:
'(g). The detaining authority has failed to
furnish the booklet within 5 days from the date of
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
detention order which violated the Section 8(1) of
the Act 14 of 1982. According to Section 8(1) of
the Act, the grounds of detention should furnish to
the detenue as soon as may be, but not later than
five days from the date of detention. But whereas
in the present case the detention order was passed
by the detaining authority on 20.10.2022 but the
booklet was furnished to the detenue only on
27.10.2022 with delay. Hence the detention order
is liable to be set aside.'
8. The aforementioned ground (g) has been met by State in
paragraph 6 of the counter affidavit which reads as follows:
'6. It is respectfully submitted that the averments
made in paragraph ground 'g' of the affidavit are
not correct since the booklet in connection with the
detention of the detenu was submitted within the
time limit specified in the Act.'
9. Learned counsel for HCP petitioner submits that this is a clear
infraction of the statutory requirement put in place by 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. We perused the said booklet and a scanned
reproduction of a typical page in the said booklet containing date
regarding date of supply of same to detenu is as follows:
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
10. 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 20.10.2022 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, 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 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:
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
'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 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
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
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.'
11. The aforementioned ratio which has 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 in the case on hand would mean that it cannot be later than
25.10.2022. In the case on hand, the grounds on which the impugned
preventive detention order was made was admittedly served on the
detenu only on 27.10.2022. Therefore, there is no difficulty in coming
to the conclusion that there is infraction of Section 8(1) of Act 14 of
1982.
12. We find that the stand of the detaining authority as
articulated in paragraph 6 of the counter affidavit is bereft of details
besides being bare and bald. It merely says that the contention is not
correct and the needful was done within time but the booklet served on
the detenu was placed before us and the same speaks otherwise.
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
13. Communicating the grounds on which the detention order was
made within the time frame which is not later than five days from the
date of detention is a sanctus statutory requirement under Section 8(1)
of Act 14 of 1982.
14. We remind ourselves that dealing with infraction of Section
8(1) of Act 14 of 1982, this Bench in the 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.
15. The second point turns on 'live and proximate link' between
the grounds of detention and purpose of detention as date of remand in
the ground case is 27.08.2022 but the impugned detention order has
been made only on 20.10.2022.
16. Mr.R.Muniyapparaj, learned State Additional Public Prosecutor,
submits to the contrary by saying that materials had to be collected and
time was consumed in this regard. Considering the facts and
circumstances of the case and nature of ground case, we find that this
generic explanation without specificity of learned State Additional Public
Prosecutor is unacceptable.
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
17. We also remind ourselves of Sushanta Kumar Banik's case
[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 the other facet is
'unexplained delay'. We find that the captioned matter falls under latter
facet i.e., unexplained delay.
18. To be noted, Banik case has been respectfully followed by
this Court in a series of cases i.e., in Gomathi Vs.The Principal
Secretary to Government and others reported vide Neutral Citation
of Madras High Court being 2023/MHC/334, Sadik Basha Yusuf
Vs. The State of Tamil Nadu and others reported vide Neutral
Citation of Madras High Court being 2023/MHC/733, Sangeetha Vs.
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
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 many other
orders in HCP cases.
19. In the light of narrative, discussion and dispositive
reasoning supra, we have no hesitation in saying that the impugned
preventive detention order deserves to be dislodged in the case on
hand.
20. Ergo, the sequitur is, captioned HCP is allowed and the
detention order dated 20.10.2022 bearing reference C.O.C.No.50/2022
made by the second respondent is set aside and the detenu Thiru.Anto
@ Panneerselvam, aged 25 years, son of Thiru.Balaraman, is directed
to be set at liberty forthwith unless required in connection with any
other case. There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.)
05.06.2023
Index : Yes / No
Neutral Citation : Yes / No
mmi
P.S: Registry to forthwith communicate this order to Jail
authorities in Central Prison, Thiruchirappalli.
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George, Chennai – 09.
2.The District Collector and District Magistrate of
Nagapattinam District,
Office of the District Collector and District Magistrate,
Nagapattinam District, Nagapattinam.
3.The Superintendent of Police,
Nagapattinam, Nagapattinam District.
4.The Superintendent of Prison,
Central Prison,Thiruchirappalli,
Thiruchirappalli District.
5.The Inspector of Police,
Velankanni Police Station,
Nagapattinam District.
6.The Public Prosecutor
High Court, Madras.
https://www.mhc.tn.gov.in/judis
H.C.P.No.2476 of 2022
M.SUNDAR, J.,
and
K. GOVINDARAJAN THILAKAVADI, J.,
mmi
H.C.P.No.2476 of 2022
05.06.2023
https://www.mhc.tn.gov.in/judis
