Madras High Court
R. Loganathan vs State Rep. By Secretary To Government on 18 September, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
HCP.No.2059 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.09.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MRS. JUSTICE N.MALA
H.C.P.No.2059 of 2024
R. Loganathan ... Petitioner/Father of the
detenue
Vs.
1. State rep. by Secretary to Government,
Home, Prohibition and Excise Department,
Government of Tamil Nadu,
Fort St. George,
Chennai - 600 009.
2. The District Collector Cum District Magistrate,
Vellore District, Vellore – 9.
3. The Superintendent of Prison,
Central Prison, Salem.
4. The Superintendent of Police,
Vellore District, Vellore.
5. The Inspector of Police,
PEW-Vellore Police Station,
Vellore District. ... Respondents
Page 1 of 9
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HCP.No.2059 of 2024
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, call for the records of the second respondent
herein in his proceedings No. C3/D.O.No. 67/2024 dated 01.08.2024 and
set aside the same and consequently direct the respondents herein to produce
the detenue Vijay son of Loganathan aged 23 years, now confined in Central
Prison, Salem before the Court and set at liberty.
For Petitioner : Mr.S.Prabhu
For Respondents : Mr. E. Raj Thilak
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
01.08.2024 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 appearing for the respondents.
3. The learned Counsel appearing on behalf of the petitioner
would mainly contend that there was a delay in considering the
representation submitted by the detenue under Act 14 of 1982.
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4. Delay in considering the representation is vital, more
specifically in preventive detention cases. The detention power conferred
under Act is extremely powerful and that have the ability to confer arbitrary
power to the State. In such circumstances, where there is a possibility of an
unfattered discretion of power by the Government, the Court must analyse
cases arising from such laws with extreme caution and excruciate detail
power to ensure that there are check, and balances on the power of the
Government. Every procedural rigidity must be followed in entirety by the
Government in cases of preventive detention and every lapse in procedure
must give raise to benefit to the cases of detenue. The Courts in such
circumstances of preventive detention, are conferred with a duty that has
been given the utmost importance by the Constitution of India, which is the
protection of individual and civil liberties. Therefore, the adherence of the
procedures and the Rules and the opportunities to be afforded to the detenue
are of paramount importance and a constitutional mandate. Therefore, every
lapse in exercising the power identified are to be viewed seriously.
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5. High Court in exercise of powers of Judicial Review under
Article 226 in the case of habeas corpus is not expected to assess the nature
of the seriousness of the criminal cases registered and pending against the
detenue. The cases of preventive detention are to be dealt with in accordance
with the personal liberty of the detenue granted under Part-III of the
constitution. Therefore, the dealing of preventive detention cases are not
comparable with reference to the regular criminal cases. The cases under
preventive detention stands in different footing than that of the regular
criminal cases wherein the procedures are distinct and different. Thus, High
Court is expected to exercise its powers meticulously to scrutinise, whether
there is any lapses on the part of the detaining Authority and the power has
been exercised judiciously by scrupulously following the procedures and
application of mind has been made as required under law and the breach of
public order likely to be caused by the detenue. It is held that mere law and
order cannot be a ground to detain a person. The likelihood of causing
disturbance to public order, which must be the subjective satisfaction of the
detaining Authority while passing the order of detention.
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6. Admittedly, in the present case, there is a delay of nine (09)
days in considering the representation and that is not disputed by the learned
Additional Public Prosecutor. The delay in considering the representation
undoubtedly caused infringement of the right of personal liberty of the
detenue under Article 21 of the constitution of India. Thus, the order of
detention do not stand under the scrutiny of law.
7. Further, the learned Counsel for the petitioner would submit
that there is an inordinate delay in passing the order of detention.
8. In the instant case, the detenu was arrested on 18.06.2024 and
thereafter, the detention order came to be passed on 01.08.2024. This fact is
not disputed by the learned Additional Public Prosecutor.
9. In the case of 'Sushanta Kumar Banik Vs. State of Tripura',
reported in '2022 LiveLaw (SC) 813', when there was an inordinate delay
from the date of proposal till passing of the detention order and likewise,
between the date of detention order and the actual arrest, the Hon'ble
Supreme Court had held that the live and proximate link, between the
grounds and the purpose of detention, stands snapped in arresting the
detenu. The relevant observation of the Hon'ble Supreme Court is extracted
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hereunder:-
“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.”
10. Drawing inspiration from the judgment in Sushanta Kumar
Banik's case, a co-ordinate Bench of this Court in the case of 'Gomathi Vs.
Principal Secretary to Government and Others', reported in '2023 SCC
OnLine Mad 6332', had held that when there is an inordinate delay from
the date of arrest/date of proposal till the order of detention, the live and
proximate link between them would also stand snapped and thereby, had
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quashed the detention order on this ground.
11. In yet another case i.e., in 'Nagaraj Vs. State of Tamil Nadu',
reported in '(2018) 3 MWN (Cri) 428', this Court had held that the delay of
36 days in passing the detention order after the arrest of the detenu would
snap the live and proximate link between the grounds and purpose of
detention. Hence, in view of the unexplained and inordinate delay in
passing the order of detention, after the arrest of the detenu, the detention
order in the present case, is liable to be quashed.
12. For the aforesaid reasons, the impugned order of detention on
the file of the second respondent in proceedings C3/D.O.No.67 of 2024
dated 01.08.2024 is quashed and the habeas corpus petition stands allowed.
The detenu viz., Vijay, S/o. Loganathan, aged 23 years, confined at Central
Prison, Salem is directed to be set at liberty forthwith, unless he is required
in connection with any other case.
[S.M.S., J.] [N.M., J.]
18.09.2024
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
veda
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To
1. The Secretary to Government,
Home, Prohibition and Excise Department,
Government of Tamil Nadu,
Fort St. George,
Chennai - 600 009.
2. The Joint Secretary to Government,
Public (Law and Order) Department,
Fort St.George, Chennai - 9.
3. The District Collector Cum District Magistrate,
Vellore District, Vellore – 9.
4. The Superintendent of Prison,
Central Prison, Salem.
5. The Superintendent of Police,
Vellore District, Vellore.
6. The Inspector of Police,
PEW-Vellore Police Station,
Vellore District.
7. The Public Prosecutor,
Madras High Court,
Chennai - 104.
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S.M.SUBRAMANIAM, J.
AND
N.MALA., J.
veda
18.09.2024
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