Madras High Court
Eswaran vs The Secretary To The Government on 5 November, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
HCP.No.2247 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.11.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE M.JOTHIRAMAN
H.C.P.No.2247 of 2024
Eswaran ... Petitioner/Father of the
Detenu
Vs.
1. The Secretary to the Government,
Home Prohibition & Excise Department,
Secretariat,
Chennai - 600 009.
2. The Commissioner of Police/Detaining Authority,
Coimbatore City,
Coimbatore District.
3. The Superintendent,
Central Prison,
Coimbatore.
4. State Rep. by,
The Inspector of Police,
All Women Police Station South,
Coimbatore City,
Coimbatore District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
Page 1 of 8
https://www.mhc.tn.gov.in/judis
HCP.No.2247 of 2024
issue a Writ of Habeas Corpus, to call for the records in connection with the
order of Detention passed by the second Respondent dated 26.06.2024 in
C.No. 74/G/IS/2024 against the petitioner son E.Udhayakumar, M/33 years,
son of Eswaran, who is confined at Central Prison, Coimbatore and set aside
the same and consequently direct the respondents to produce the detenu
before the Court and set him at liberty.
For Petitioner : Mr.A.Saranraj
For Respondents : Mr. R.Muniyapparaj
Additional Public Prosecutor
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.)
The preventive detention order passed by the second respondent dated
26.06.2024 is sought to be quashed in the present habeas corpus petition.
2. Heard the learned Counsel for the petitioner as well as the
learned Additional Public Prosecutor for the respondents.
3. The preventive detention order impugned has been issued based
on the solitary case registered against the detenu under POCSO Act. No
https://www.mhc.tn.gov.in/judis
adverse case has been relied upon nor the learned Additional Public
Prosecutor could establish that the detenu is a habitual offender and his
activities are leading to public disorder warranting invocation of Act 14 of
1982.
4. Personal liberty being a fundamental right enshrined under the
Constitution of India, it may be taken away only with the Authority of Law.
Personal liberty can be curtailed only after trial and by following due
process of law. Preventive detention law being draconian and colonial, it is
to be invoked sparingly to maintain public order. Thus, subjective
satisfaction of the detaining Authority is of paramount importance.
Subjective satisfaction on presumption would be insufficient but must be
based on materials available on record. The power to punish a person cannot
be vested with the Police Authorities and its abuse will result in serious
consequences.
5. In the present case, the learned Counsel for the petitioner would
submit that the similar bail order relied on by the Detaining Authority is
https://www.mhc.tn.gov.in/judis
dissimilar, since in the similar bail order case, the bail was granted under
Section 167 (2) of Criminal Procedure Code, which is a statutory bail. In the
present case, the detenu has not even filed a bail petition. Therefore, the
Authorities have failed to apply their mind.
6. Growing trend of invoking Act 14 of 1982 indiscriminately by
the Detaining Authority at no circumstances be encouraged by the Courts.
Abuse of power under the pretext of preventive detention law must be
viewed seriously by the Courts and in the event of identification of any such
abuse, Courts will not hesitate to grant compensation to the victims. The
award of compensation is to be considered, when the Court find that the
preventive detention law has been invoked by abuse of power. In this regard,
this Court has already suggested that the Government should form
Guidelines to the Sub-ordinate Authorities, who all are competent to invoke
Act 14 of 1982. Detaining Authorities must be provided with clear
Guidelines under what circumstances they can invoke Act 14 of 1982 to
prevent public disorder.
7. The learned Additional Public Prosecutor would submit that the
Government is in the process of preparing SOP for invoking Act 14 of 1982
https://www.mhc.tn.gov.in/judis
and it will be finalised as expeditiously as possible and probably within a
period of four (04) weeks.
8. In view of the submission, we direct the first
respondent/Secretary to the Government, Home Department, to ensure that
Guidelines/SOP are issued to the Detaining Authorities to guide them to
invoke Act 14 of 1982, only in deserving cases and any selective invocation
or abuse of power must be a ground to initiate appropriate action against the
Authorities. The reasons for invoking Act 14 of 1982 must be clearly
stipulated and in consonance with the spirit of Act 14 of 1982. In this regard,
the Government shall consider various Judgments of the Hon'ble Supreme
Court of India at the time of preparing SOP/Guidelines.
9. In the present case, we do not find any sufficient reason for
invoking Act 14 of 1982. Further, the similar bail order relied is found to be
dissimilar, which resulted in non-applicaiton of mind. That apart, the detenu
is already in actual imprisonment under preventive detention law for about
five months.
https://www.mhc.tn.gov.in/judis
10. Accordingly, the detention order passed by the 2nd respondent,
in proceedings C.No.74/G/IS/2024 dated 24.06.2024, is hereby set aside and
the Habeas Corpus Petition is allowed. The detenu viz., E.Udhayakumar,
aged 33 years, S/o. Eswaran confined at Central Prison, Coimbatore is
directed to be set at liberty forthwith unless he is required in connection with
any other case.
[S.M.S., J.] [M.J.R., J.]
05.11.2024
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
veda
https://www.mhc.tn.gov.in/judis
To
1. The Secretary to the Government,
Home Prohibition & Excise Department,
Secretariat,
Chennai - 600 009.
2. The Commissioner of Police/Detaining Authority,
Coimbatore City,
Coimbatore District.
3. The Superintendent,
Central Prison,
Coimbatore.
4. The Inspector of Police,
All Women Police Station South,
Coimbatore City,
Coimbatore District.
5. The Public Prosecutor,
Madras High Court,
Chennai - 104.
https://www.mhc.tn.gov.in/judis
S.M.SUBRAMANIAM, J.
AND
M.JOTHIRAMAN, J.
veda
05.11.2024
https://www.mhc.tn.gov.in/judis
