Madras High Court
Ram Pravesh Sharma vs The Additional Chief Secretary To ... on 12 June, 2023
H.C.P.No.2510 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.06.2023
Coram
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HON'BLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI
H.C.P.No.2510 of 2022
Ram Pravesh Sharma .. Petitioner
Vs.
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -600 009.
2.The Commissioner of Police,
Greater Chennai, Chennai Disrict.
3.The Inspector of Police,
Cyber Crime Police Station,
Team D, Central Crime Branch,
Chennai.
4.The Superintendent of Prison,
Central Prison I, 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 relating to
the detention order passed by the second respondent pertaining to the
order made in Memo No.384/BCDFGISSSV/2022 dated 22.10.2022
detaining the detenu under 2(f) of Tamil Nadu Act 14/1982 as Cyber
Law Offender and quash the same and direct the respondents to
produce the detenu Prakash Sharma, son of Ram Pravesh Sharma
(TPDA No.3772), male, aged about 21 years, who is detained in Central
Prison, Puzhal, before this Court and set him at liberty.
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H.C.P.No.2510 of 2022
For Petitioner : Ms.R.Subadra Devi
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 father of the detenu
assailing 'detention order dated 22.10.2022 bearing reference
No.384/BCDFGISSSV/2022' [hereinafter 'impugned detention order' for
the sake of convenience]. To be noted, the third 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
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 'Cyber Law Offender' within the meaning of Section
2(bb) of Act 14 of 1982.
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H.C.P.No.2510 of 2022
3. There is one adverse case. The ground case which constitutes
substantial part of substratum of the impugned detention order is Crime
No.92 of 2022 on the file of Cyber Crime Police Division I for alleged
offences under Sections 294(b), 384, 469, 506(i) of 'The Indian Penal
Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and
clarity] and Section 66 r/w 43(i) and 67 of Information Technology
(Amendment) Act, 2008 and Sections 3 and 4 of Tamil Nadu Prohibition
of Charging Exorbitant Interest Act, 2003. 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. Ms.R.Subadra Devi, learned counsel on record for petitioner
and Mr.R.Muniyapparaj, learned Additional Public Prosecutor assisted by
Mr.M.Sylvester John learned counsel for all respondents are before us.
5. In the support affidavit, very many points/grounds have been
urged/raised but in the hearing, learned counsel for petitioner
predicated her campaign against the impugned 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. 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
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H.C.P.No.2510 of 2022
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 date of detention order and detention
pursuant to preventive detention order is dated 22.10.2022, it was
served on the detenu on the same day i.e., on 22.10.2022. 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
28.10.2022. 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. We perused
the grounds booklet and a scanned reproduction of a typical page in the
booklet is as follows:
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H.C.P.No.2510 of 2022
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 22.10.2022 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
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H.C.P.No.2510 of 2022
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 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
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H.C.P.No.2510 of 2022
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 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.'
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H.C.P.No.2510 of 2022
8. 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 26.10.2022.
In the case on hand, the grounds on which the impugned preventive
detention order was made was admittedly served on the detenu only on
28.10.2022. Therefore, there is no difficulty in coming to the conclusion
that there is infraction of Section 8(1) of Act 14 of 1982.
9. 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.
10. 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.
11. Ergo, the sequitur is, captioned HCP is allowed and the
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H.C.P.No.2510 of 2022
detention order dated 22.10.2022 bearing reference
No.384/BCDFGISSSV/2022 made by the second respondent is set aside
and the detenu Thiru.Prakash Sharma, aged 21 years, son of Thiru.Ram
Parvesh Sharma 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.)
12.06.2023
Index : Yes
Neutral Citation : Yes
mmi
P.S: Registry to forthwith communicate this order to Jail
authorities in Central Prison, Puzhal, Chennai.
To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai -600 009.
2.The Commissioner of Police,
Greater Chennai, Chennai Disrict.
3.The Inspector of Police,
Cyber Crime Police Station,
Team D, Central Crime Branch,
Chennai.
4.The Superintendent of Prison,
Central Prison I, Puzhal, Chennai.
5.The Public Prosecutor,
High Court, Madras.
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H.C.P.No.2510 of 2022
M.SUNDAR, J.
and
K. GOVINDARAJAN THILAKAVADI, J.,
mmi
H.C.P.No.2510 of 2022
12.06.2023
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