Madras High Court
Kowsalya vs The Secretary To Government on 6 June, 2023
H.C.P.No.2468 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.06.2023
Coram
THE HON'BLE MR.JUSTICE M.SUNDAR
and
THE HON'BLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI
H.C.P.No.2468 of 2022
Kowsalya .. Petitioner
vs
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St.George, Chennai – 9.
2.The District Magistrate & District Collector,
Tiruppur District, Tiruppur.
3.The Superintendent of Police,
Tiruppur, Tiruppur District.
4.The Superintendent of Prison,
Central Prison – Coimbatore, Coimbatore District.
5.State Rep. By its
The Inspector of Police,
Palladam Police Station,
Tiruppur District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of habeas corpus to call for the entire records
relating to the petitioner's husband's detention under Tamil Nadu Act 14
of 1982 vide detention order dated 22.11.2022 on the file of the second
respondent herein made in proceedings Memo
Cr.M.P.No.77/Goonda/2022, quash the same as illegal and consequently
direct the respondents herein to produce the petitioner's husband
namely Vicky @ Vigneshwaran, S/o.Murugesh, aged 26 years, before
this Court and set the petitioner's husband at liberty from detention,
now the petitioner's husband detained at Central Prison, Coimbatore.
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H.C.P.No.2468 of 2022
For Petitioner : Mr.W.Camyles Gandhi
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' ['HCP' for the sake of brevity]
has been filed by wife of the detenu assailing a 'preventive detention
order dated 22.11.2022 bearing reference Cr.M.P.No.77/Goonda/2022'
[hereinafter 'impugned detention order' for the sake of convenience and
brevity]. To be noted, fifth 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 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 detenue is a 'Goonda' within the meaning of Section 2(f) of Act 14
of 1982.
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H.C.P.No.2468 of 2022
3. There are six adverse cases. The ground case which is the
sole substratum of the impugned detention order is Crime No.1152 of
2022 on the file of Palladam Police Station for alleged offences under
Sections 294(b), 394, 506(ii) of 'The Indian Penal Code (45 of 1860)'
[hereinafter 'IPC' for the sake of convenience and clarity] r/w Sections
3(1)(e), 3(1)(r), 3(1)(s), 3(2)(va) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Amendment Act, 2015. 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.W.Camyles Gandhi, learned counsel on record 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. In the hearing, Mr.W.Camyles Gandhi, learned counsel for
petitioner urged two points and they are as follows:
(i) Date of arrest of the detenu is 15.10.2022 but
the impugned preventive detention order has been made
only on 22.11.2022 owing to which 'live and proximate
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H.C.P.No.2468 of 2022
link' between the grounds and purpose of detention has
snapped;
(ii) In paragraph 5 of the grounds of detention, the
detaining authority categorically noticed the then obtaining
position that the detenu has not moved any bail petition in
the ground case but without any other material and
without recording subjective satisfaction that there is
imminent possibility of detenu being enlarged on bail, the
impugned preventive detention order has been clamped
qua the detenu.
6. In response to the aforesaid two points, learned State
Additional Public Prosecutor made submission to the contrary and the
same are as follows:
(i) Certain procedural delays were caused owing to
the process involved in making the impugned preventive
detention order;
(ii) Considering the ground case, there was possibility
of the detenu being enlarged on bail.
7. We carefully considered the rival submissions in the light of
the case file and the records before us.
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H.C.P.No.2468 of 2022
8. As regards the first point, we have no hesitation in saying
that the time consumed has not been satisfactorily explained. The test
is not a numerical or quantitative test but it is qualitative test and in
touchstone is whether live and proximate link between the grounds and
purpose of detention has snapped. In this regard, we 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], which is a lead case in this regard and
the relevant paragraph in Banik case is paragraph 20 in the Live Law
report (paragraph 21 in the SCC Online report), which reads as follows:
'20. It is manifestly clear from a conspectus of the
above decisions of this Court, that the underlying principle is
that if there is unreasonable delay between the date of the
order of detention & actual arrest of the detenu and in the
same manner from the date of the proposal and passing of
the order of detention, such delay unless satisfactorily
explained throws a considerable doubt on the genuineness
of the requisite subjective satisfaction of the detaining
authority in passing the detention order and consequently
render the detention order bad and invalid because the “live
and proximate link” between the grounds of detention and
the purpose of detention is snapped in arresting the detenu.
A question whether the delay is unreasonable and stands
unexplained depends on the facts and circumstances of
each case.'
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H.C.P.No.2468 of 2022
9. This Bench has also repeatedly respectfully followed Banik
principle laid down by the Honourable Supreme Court. If Banik principle
is applied, it emerges clearly that live and proximate link between the
grounds and purpose of detention has snapped in the case on hand.
10. Though the first point enures to the benefit of the petitioner
in his campaign against the impugned preventive detention order, as
another point was urged, we deem it appropriate to consider the same.
11. As regards the second point, paragraph 5 of the grounds of
detention reads as follows:
'5. I am aware that Thiru.Vicky alias Vigneshwaran is
now lodged at District Prison, Tiruppur as a remand
prisoner in Tiruppur District, Palladam Police Station Crime
No.1152/2022 under Section 294(b), 394, 506(ii) Indian
Penal Code and Section 3(1)(e), 3(1)(r), 3(1)(s), 3(2)(va)
of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015 case and his remand
period has been extended till 25.11.2022. I also aware
that, he has not moved any bail petition in the above case
till the date. On the materials placed before me, I am
satisfied that the said Vicky alias Vigneshwaran is a Goonda
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H.C.P.No.2468 of 2022
and there is a compelling necessity to detain him in
custody under the Tamil Nadu Act 14 of 1982 in order to
prevent him from indulging in such further activities in
future which are prejudicial to the maintenance of public
order and peace under Section 3(1) of the Tamil Nadu Act
14 of 1982 and G.O.(D) No.326, Home, Prohibition and
Excise (XVI) Department, dated 13.10.2022 as per the
exercise of the powers delated to me.'
12. Other than the aforementioned paragraph 5 of the grounds
of detention made by the detaining authority, there is no other material
qua imminent possibility of detenu being enlarged on bail. As rightly
urged by the learned counsel for petitioner, the detaining authority has
not recorded the subjective satisfaction that there is possibility of the
detenu being enlarged on bail much less imminent possibility in this
regard. We remind ourselves that imminent possibility is not qua time
but qua probability. In this view of the matter, subjective satisfaction of
the detaining authority as regards imminent possibility of detenu being
enlarged on bail is a very vital aspect but the detention order has been
made after noticing that the detenu has not moved any bail petition.
13. Be that as it may we are conscious and aware that the
preventive detention order in a HCP legal drill has to be tested on the
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H.C.P.No.2468 of 2022
date of the preventive detention order. However, in the case on hand,
as a buttressing factor, we find that as regards the ground case viz.,
Crime No.1152 of 2022 the same legally manifested itself as Spl.S.C.
No.31 of 2022 on the file of the file of the Principal Sessions Judge,
Tiruppur and the learned Judge after full trial has acquitted the detenu
in and by a judgment dated 10.03.2023. To be noted, we make it clear
that this is only a buttressing factor which has now come to light but we
are interfering qua the impugned preventive detention order only on
the ground that subjective satisfaction qua imminent possibility of
detenu being enlarged on bail is impaired.
14. Apropos, the sequitur is, captioned HCP is allowed. Impugned
detention order dated 22.11.2022 bearing reference
Cr.M.P.No.77/Goonda/2022 made by the second respondent is set aside
and the detenu Thiru.Vicky @ Vigneshwaran, aged 26 years, son of
Thiru.Murugesh, is directed to be set at liberty forthwith, if not required
in connection with any other case / cases. There shall be no order as to
costs.
(M.S.,J.) (K.G.T.,J.)
06.06.2023
Index : Yes
Neutral Citation : Yes
mmi
P.S: Registry to forthwith communicate this order to Jail
authorities in Central Prison, Coimbatore.
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H.C.P.No.2468 of 2022
To
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St.George, Chennai – 9.
2.The District Magistrate & District Collector,
Tiruppur District, Tiruppur.
3.The Superintendent of Police,
Tiruppur, Tiruppur District.
4.The Superintendent of Prison,
Central Prison – Coimbatore, Coimbatore District.
5.The Inspector of Police,
Palladam Police Station,
Tiruppur District.
6.The Public Prosecutor
High Court, Madras.
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H.C.P.No.2468 of 2022
M.SUNDAR, J.,
and
K. GOVINDARAJAN THILAKAVADI, J.,
mmi
H.C.P.No.2468 of 2022
06.06.2023
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