Madras High Court
Arulkumar vs The Additional Chief Secretary To ... on 22 September, 2025
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, R.Vijayakumar
H.C.P.(MD)No.1477 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.09.2025
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
H.C.P.(MD)No.1477 of 2024
Arulkumar ... Petitioner
-vs-
1. The Additional chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George, Chennai - 9.
2. The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Madurai District.
3. The Superintendent of Prison,
Madurai Central Prison,
Madurai District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Habeas Corpus, calling for the entire records
connected with the detention order of the respondent No.2 in
B.C.D.F.G.I.S.S.S.V.No.44/2024, dated 22.10.2024 and quash the same
and direct the respondents to produce the body or person of the detenu by
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H.C.P.(MD)No.1477 of 2024
name Arulkumar, S/o.Mani, aged about 23 years, now detained as
“Sexual Offender” at Madurai Central Prison before this Court and set
him at liberty forthwith.
For Petitioner : Dr.R.Alagumani
For Respondents : Mr.A.Thiruvadikumar,
Addl. Public Prosecutor
ORDER
(Order of the Court was made by C.V.Karthikeyan, J.)
The petitioner is the detenu namely Arulkumar, S/o.Mani,
aged about 23 years. The detenu had been detained by the second
respondent by his order in B.C.D.F.G.I.S.S.S.V.No.44/2024, dated
22.10.2024, holding him to be a “Sexual Offender” as contemplated
under Section 2(ggg) of Tamil Nadu Act 14 of 1982. The said order is
under challenge in this Habeas Corpus Petition.
2. We have heard the learned counsel appearing for the
petitioner and the learned Additional Public Prosecutor appearing for the
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respondents. We have also perused the records produced by the
Detaining Authority.
3. Though several points have been raised by the learned
counsel for the petitioner, it is stated that the detaining authority in the
impugned detention order did not inform about his right of making
representation to the detaining authority within 12 days from the date of
passing the detention order. Hence, it is submitted that the detenu was
deprived of making representation to the detaining authority.
4. The learned Additional Public Prosecutor strongly
opposed the Habeas Corpus Petition by filing his counter.
5. The question arises for consideration in this case is that
whether the detention order is liable to be quashed on account of the
failure of detaining authority to inform the right of detenu to make
representation to the detaining authority within 12 days from the date of
detaining in the detention order?
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5.1. Article 22 (5) states that when any person is detained in
pursuance of an order made under any law providing for preventive
detention, the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order has been
made and shall afford him the earliest opportunity of making a
representation against the order.
6. From the above constitutional provision, even though the
constitution does not specify the authority to whom the detenu would
make the representation, the Constitution Bench of the Hon'ble Supreme
Court in Kamleshkumar Ishwardas Patel Vs. Union of India and
Others reported in 1995 (4) SCC 51 has held as follows:-
“38.Having regard to the provisions of Article 22(5) of
the Constitution and the provisions of the COFEPOSA Act
and the PIT NDPS Act the question posed is thus answered :
Where the detention order has been made under Section 3 of
the COFEPOSA Act and the PIT NDPS Act by an officer
specially empowered for that purpose either by the Central
Government or the State Government the person detained has
a right to make a representation to the said officer and the
said officer is obliged to consider the said representation and
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the failure on his part to do so results in denial of the right
conferred on the person detained to make a representation
against the order of detention. This right of the detenue is in
addition to his right to make the representation to the State
Government and the Central Government where the detention
order has been made by an officer specially authorised by a
State Government and to the Central Government where the
detention order has been made by an officer specially
empowered by the Central Government, and to have the same
duly considered. This right to make a representation
necessarily implies that the person detained must be informed
of his right to make a representation to the authority that has
made the order of detention at the time when he is served with
the grounds of detention so as to enable him to make such a
representation and the failure to do so results in denial of the
right of the person detained to make a representation.”
7. So, it is imperative on the part of the detaining authority
to specify the authorities to whom the detenu would make the
representation and the said requirement is applicable to the all detention
laws and hence, the Hon'ble Supreme Court in State of Maharashtra v.
Santosh Shankar Acharya reported in (2000) 7 SCC 463 : 2000 SCC
(Cri) 1400 has applied the above principle in the Maharastra Prevention
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of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and
Dangerous Persons Act, 1981, and held as follows:-
“5.Non-communication of the fact to the detenu that he
could make a representation to the detaining authority so long
as the order of detention has not been approved by the State
Government in a case where an order of detention is issued by
an officer other than the State Government under sub-section
(2) of Section 3 of the Maharashtra Act would constitute an
infraction of a valuable right of the detenu under Article 22(5)
of the Constitution and the ratio of the Constitution Bench
decision of this Court in Kamleshkumar case [(1995) 4 SCC
51 : 1995 SCC (Cri) 643] would apply notwithstanding the
fact that in Kamleshkumar case [(1995) 4 SCC 51 : 1995 SCC
(Cri) 643] the Court was dealing with an order of detention
issued under the provisions of the COFEPOSA Act.”
8. A said similar issue came up for hearing before the
Coordinate Bench of this Court, in S.Thai vs. State rep. by The
Commissioner of Police, Tiruchirappalli City, Tiruchirappalli &
Others reported in 2000 (3) MWN(Cri.) 142, where the said Bench held
that the detenu must have informed his right of making representation to
the detaining authority within 12 days. The said co-ordinate Bench
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considered the judgment reported in 2000 7 SCC 463 and held that the
said requirement is form part of the detunu’s right of making
representation.
9. The said judement in S.Thai vs. State rep. by The
Commissioner of Police, Tiruchirappalli City, Tiruchirappalli &
Others reported in 2000 (3) MWN(Cri.) 142, challenged by the State
Government before the Hon’ble Supreme Court in Crl.A.No:728 of 2000.
The Hon'ble Supreme Court re-affirmed the ratio State of Maharashtra
v. Santosh Shankar Acharya reported in (2000) 7 SCC 463 in the
following terms;
“Mr.Altaf Ahmad, the learned Additional Solicitor
General tried his level best to persuade us to take the view
that the law laid down by this Court in the Constitution
Bench judgment in Kamlesh Kumar's case (supra) was in
relation to an order of detention under COFEPOSA and the
law under COFEPOSA and NDPS Act provides different
scheme than the scheme engrafted in the National Security
Act or other Preventive Detention Laws including the
Maharashtra Act as well as the Tamil Nadu Act. According to
him, Article 22(5) of the Page 8 of 12 Constitution of India
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confers right of earliest representation, to a detenu but does
not provide as to who is the authority to whom a
representation could be made and, therefore, there is no bar
for the Legislature to provide a specific authority to whom a
representation could be made and in a case where the
Legislature have provided such authority to whom a
representation could be made, then it cannot be said that the
detenu has still a right of making a representation to the
detaining authority. Though this argument sounds. attractive
but does not sustain on a larger constitutional perspective
and on examining the rights of a detenu to make a
representation to an authority which is the only right offered
to a detenu. We are conscious of the fact that by interpreting
the provisions as has been interpreted by us in Cr1.A. No.
596/2000, several dangerous detenus may have to be
released, but yet the consequences will not bind us ...
interpreting a constitutional provision as well as different
provisions of the Act in question and having examined and
re-examined the different decisions relied upon by us in crl..
A. No. 596/2000, we are not persuaded to take a different
view than what has been taken. Accordingly, the Special
Leave Petitions and the Criminal Appeal stand dismissed.
The view taken by us in Crl. A. No.596/2000 is re-affirmed.”
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10. Similar question raised before the Hon’ble Bench of
Five Judges of Quwahati High Court in 2006 (2) Gau LR 452. The
Hon’ble Judges have held as follows ;-
“57.For all the aforesaid reasons, we hold:
(1) That a detenue has two rights under Article 22(5)
of the Constitution:
(i) to be informed, as soon as may be, the grounds on
which the order of detention is passed, i.e., the grounds which
led to the subjective satisfaction of the detaining authority,
and
(ii) to be afforded the earliest opportunity of making a
representation against the order of detention. The twin rights
are available to a detenu whether they are provided for or not
in the preventive detention laws.
(2) The right to make representation to the detaining
authority by a detenue in addition to his right to file
representation to the Central Government or appropriate
Government is also guaranteed under Article 22(5) of the
Constitution which forms part of package of guaranteed
fundamental right. No distinction as such could be made in
this regard in respect of the detention orders made either
under COFEPOSA, PIT NDPS or National Security Act,
1980, as the case may be.
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(3) The detaining authority is under the constitutional
obligation to inform the detenue of his right to make such a
representation to the detaining authority.
(4) The failure to inform the detenue of such right to
make representation to the detaining authority vitiates the
detention order made even under the provisions of the
National Security Act, 1980.”
11. Hence, in view of law laid down in State of
Maharashtra v. Santosh Shankar Acharya reported in (2000) 7 SCC
463 was re-affirmed by the Hon’ble three Judges bench of the Supreme
Court in Crl.A.No:728 of 2000, this court is inclined to accept the
contention of the learned counsel for the detenue that the detaining
authority in the impugned detention order has not informed the right of
detenu to make a representation before the detaining authority within 12
days, which resulted in infraction of Article 22 of Constitution of India.
so, the impugned detention order is liable to be quashed.
12. In the result, the Habeas Corpus Petition is allowed and
the order of detention in B.C.D.F.G.I.S.S.S.V.No.44/2024 dated
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22.10.2024 passed by the second respondent is set aside. The detenu,
viz., Arulkumar, S/o.Mani, aged about 23 years is directed to be released
forthwith unless his detention is required in connection with any other
case.
13. We are deeply concerned with the detention order passed
by the detaining authority overlooking an established point of law that
the detenu should be informed about his right to make a representation to
the detaining authority within a period of 12 days questioning the
detention order. This right is independent of the right of the detenu to
send representation to the Government and to the State Advisory Board
expressing grievances about the detention order. The position of law has
been in force from 2000 as laid down by the Hon'ble Supreme Court in
State of Maharashtra Vs. Santosh Shankar Acharya reported in (2000)
7 SCC 463, which we had referred supra.
14. We are of the considered view that explanation has to be
called for from the then Collector, Madurai District, who had passed the
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detention order dated 22.10.2024, under what circumstances she had
expressed subjective satisfaction and compliance of all constitutional
procedure as required while passing the detention order, putting a citizen
under preventive detention, particularly, taking into consideration the
seriousness and gravity of offences and omitting to inform him about his
right to make a representation. The first respondent viz., The Additional
Chief Secretary to Government, Home, Prohibition and Excise
Department, Chennai – 09, may obtain an explanation from the then
District Collector/District Magistrate and forward the explanation given
under covering affidavit to this Court.
15. Call the matter on 22.10.2025 for filing affidavit of the
first respondent along with the explanation of the second respondent.
[C.V.K., J.] [R.V., J.]
22.09.2025
vsm
NCC :Yes/No
Index: Yes/No
Internet: Yes/No
Note: Registry is directed to mark a copy of this order to The
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Additional chief Secretary to Government, Home, Prohibition and
Excise Department, Fort St. George, Chennai - 9.
To
1. The Additional chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George, Chennai - 9.
2. The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Madurai District.
3. The Superintendent of Prison,
Madurai Central Prison,
Madurai District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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C.V.KARTHIKEYAN, J.
and
R.VIJAYAKUMAR, J.
vsm
22.09.2025
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