[Cites 20, Cited by 0]
Madras High Court
S.Sakkammal vs The Additional Chief Secretary To The ... on 7 January, 2026
Author: G.K. Ilanthiraiyan
Bench: G.K. Ilanthiraiyan
H.C.P(MD)No.361 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 16.12.2025
PRONOUNCED ON : 07.01.2026
CORAM :
THE HONOURABLE MR JUSTICE G.K. ILANTHIRAIYAN
AND
THE HONOURABLE MS.JUSTICE R. POORNIMA
H.C.P.(MD)No.361 of 2025
S.Sakkammal ... Petitioner/Mother of the Detenu
-vs-
1.The Additional Chief Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 600 009.
2.The District Collector and District Magistrate,
Theni District, Theni.
3.The Inspector of Police,
All Women Police Station,
Aundipatti, Theni District.
4.The Superintendent,
Central Prison,
Madurai. ... Respondents
1/24
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H.C.P(MD)No.361 of 2025
PRAYER: Petition filed under Article 226 of the Constitution of
India praying to issue a Writ of Habeas Corpus, calling for the entire
records pertaining to the detention order passed by the second
respondent in Detention Order No.08 of 2025 dated 05.03.2025 and
quash the same and consequently set the detenu by name S.Boopathi
Raja, son of Surulimuthu (male aged 34 years) who is confined at
Central Prison, Madurai at liberty.
For Petitioner : Mr.R.Anand
For Respondents : Mr.T.Senthil Kumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by G.K. ILANTHIRAIYAN,J.)
The petitioner is the mother of the detenu viz.,
S.Boopathi Raja, aged about 34 years. The detenu has been detained
by the second respondent by order in Detention Order No.08 of 2025
dated 05.03.2025 holding him to be a "Sexual Offender", as
contemplated under Section 2(ggg) of the Tamil Nadu Act 14 of
1982. The said order is under challenge in this Habeas Corpus
Petition.
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2.We have heard the learned counsel appearing for the
petitioner and the learned Additional Public Prosecutor appearing for
the respondents. We have also perused the records produced by the
Detaining Authority.
3.The learned counsel for the petitioner raised following
grounds:
3.1.The petitioner is the mother of the detenu. Immediately
after the order of detention, none of the family members were
informed about the detention order, and they were kept in dark
regarding status of the detenu. According to the prosecution, brother
of the detenu was informed about the arrest of detenu, however, no
message was received whatsoever on his mobile phone.
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3.2.The detenu was arrested and remanded to judicial
custody on 04.02.2025 in pursuant to the registration of an F.I.R in
Crime No.5 of 2025 under Sections 3, 4, 5(m), 5(n) and 6 of the
Protection of Children from Sexual Offences Act, 2012 and Section
351(2) of B.N.S., 2023. In fact, the F.I.R was registered on
03.02.2025 for an occurrence that allegedly took place on
11.10.2024, wherein it was alleged that the detenu misbehaved with
a minor victim girl. However, the detention order came to be passed
only on 05.03.2025.
3.3.There was an unexplained delay in passing the order of
detention. Therefore, there is no live and proximate link between the
date of arrest and the date of the detention order in respect of the
ground case registered in Crime No.5 of 2025. Further, the detenu
has been implicated in a serious offence and, even though the bail
application filed by the detenu was dismissed, there is no possibility
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of the detenu coming out on bail subsequently. Hence, preventive
detention is not at all warranted.
3.4.The detenu was not served with the reasons and
grounds for his arrest. The learned counsel appearing for the
petitioner further submitted that the documents relied upon by the
detaining authority do not contain any particulars in the column
relating to the reasons and grounds for arrest. Therefore, the order of
detention cannot be sustained and is liable to be quashed.
4.In support of his contentions, the learned counsel
appearing for the petitioner relied upon the following Judgments of
the Hon'ble Supreme Court of India:
“(i) Prabir Purkayastha Vs. State (NCT of
Delhi), dated 15.05.2024 in S.L.P.Diary No.42896 of
2023.
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(ii) Vihaan Kumar vs. State of Haryana and
another [2025 Live Law (SC) 169] and
(iii) Mihir Rajesh Shah Vs. State of
Maharastra [2025 Live Law (SC) 1066].”
5.Per contra, the second respondent filed a counter-
affidavit and the learned Additional Public Prosecutor submitted that
the detenu was involved in a sexual offence. After registration of the
F.I.R, the victim girl was subjected to medical examination and her
statement was recorded before the Judicial Officer. After completion
of all formalities, the sponsoring authority collected all relevant
documents from the concerned authorities and thereafter placed
them before the detaining authority, recommending detention of the
detenu under Act 14 of 1982.
6.Therefore, there was delay of 30 days in passing the
detention order. The detenu was arrested and remanded to judicial
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custody on 04.02.2025 and was detained under Act 14 of 1982 on
05.03.2025. Hence, there was no unexplained delay on the part of
the detaining authority in passing the detention order.
7.Though there was delay in lodging the complaint, it has
no bearing on the detention order and cannot be a ground to quash
the same, as delay in lodging a complaint in sexual offence cases is
immaterial. The complaint was lodged after the victim girl came out
of mental trauma. Further non-serving of the reasons and grounds
for arrest has nothing to do with the detention order. In fact, in order
to detain a person under Act 14 of 1982, arrest and remand are not
prerequisite conditions for passing a detention order. Therefore, non-
serving of the reasons and grounds for arrest cannot be a ground to
challenge the detention order. At best, it may be a ground to
challenge the order of arrest or remand, in accordance with law.
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8.The learned Additional Public Prosecutor further
submitted that the documents referred to in the detention order
cannot be construed as relied upon documents. In fact, after remand
in pursuance of the registration of the F.I.R Crime No.5 of 2025, the
detenu filed a bail application, which was dismissed in Crl.M.P.No.
76 of 2025 by order dated 25.02.2025 on the file of the Principal
Special Court for Exclusive Trial of Cases under POCSO Act, Theni.
Therefore, there is a possibility of granting bail to the detenu.
9.In support of his contentions, the learned Additional
Public Prosecutor relied on the Judgment of the Hon'ble Full Bench
of this Court in N.Fathima @ Laila Vs. State of Tamil Nadu
[(2024) 2 MLJ (Crl) 197].
10.Heard the learned counsel appearing on either side and
perused the materials available on record.
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11.Though several grounds were raised by the learned
counsel appearing for the petitioner to quash the order of detention,
he mainly relied upon that the contention that the detenu was not
served with the reasons and grounds of his arrest. In support of the
said contention, he relied upon the Judgment of the Hon'ble Supreme
Court of India in Prabir Purkayastha Vs. State (NCT of Delhi),
dated 15.05.2024 in S.L.P.Diary No.42896 of 2023, wherein it is
held as follows:
“49. It may be reiterated at the cost of
repetition that there is a significant difference in the
phrase ‘reasons for arrest’ and ‘grounds of arrest’. The
‘reasons for arrest’ as indicated in the arrest memo are
purely formal parameters, viz., to prevent the accused
person from committing any further offence; for proper
investigation of the offence; to prevent the accused
person from causing the evidence of the offence to
disappear or tempering with such evidence in any
manner; to prevent the arrested person for making
inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade
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him from disclosing such facts to the Court or to the
Investigating Officer. These reasons would commonly
apply to any person arrested on charge of a crime
whereas the ‘grounds of arrest’ would be required to
contain all such details in hand of the Investigating
Officer which necessitated the arrest of the accused.
Simultaneously, the grounds of arrest informed in
writing must convey to the arrested accused all basic
facts on which he was being arrested so as to provide
him an opportunity of defending himself against
custodial remand and to seek bail. Thus, the ‘grounds
of arrest’ would invariably be personal to the accused
and cannot be equated with the ‘reasons of arrest’
which are general in nature.”
The above Judgment arises out of a declaration, declaring the arrest
of the petitioner therein as illegal and the order of remand as null
and void.
12.There is no quarrel with the proposition that an accused
must be served with an arrest memo stating the reasons for arrest as
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well as the grounds of arrest. When the accused is not served with
an arrest memo containing the particulars of the grounds and reasons
for arrest, the arrest of the accused itself is vitiated and the
consequential remand becomes illegal. However, while non-serving
of the reasons and grounds for arrest vitiates the arrest, the validity
of the order of detention is the issue to be decided in the present
case.
13.The learned counsel appearing for the petitioner relied
on the Judgment of the Hon'ble Supreme Court of India in the case
of Vihaan Kumar vs. State of Haryana and another [2025 Live
Law (SC) 169], wherein it has been held as follows:
“21. Therefore, we conclude:
a) The requirement of informing a person
arrested of grounds of arrest is a mandatory requirement
of Article 22(1);
b) The information of the grounds of arrest
must be provided to the arrested person in such a manner
that sufficient knowledge of the basic facts constituting
the grounds is imparted and communicated to the
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arrested person effectively in the language which he
understands. The mode and method of communication
must be such that the object of the constitutional
safeguard is achieved;
c) When arrested accused alleges non-
compliance with the requirements of Article 22(1), the
burden will always be on the Investigating Officer/Agency
to prove compliance with the requirements of Article
22(1);
d) Non-compliance with Article 22(1) will be a
violation of the fundamental rights of the accused
guaranteed by the said Article. Moreover, it will amount
to a violation of the right to personal liberty guaranteed
by Article 21 of the Constitution. Therefore, non-
compliance with the requirements of Article 22(1) vitiates
the arrest of the accused. Hence, further orders passed by
a criminal court of remand are also vitiated. Needless to
add that it will not vitiate the investigation, charge sheet
and trial. But, at the same time, filing of chargesheet will
not validate a breach of constitutional mandate under
Article 22(1);
e) When an arrested person is produced before
a Judicial Magistrate for remand, it is the duty of the
Magistrate to ascertain whether compliance with Article
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22(1) and other mandatory safeguards has been made;
and
f) When a violation of Article 22(1) is
established, it is the duty of the court to forthwith order
the release of the accused. That will be a ground to grant
bail even if statutory restrictions on the grant of bail
exist. The statutory restrictions do not affect the power of
the court to grant bail when the violation of Articles 21
and 22 of the Constitution is established.”
14.It is relevant to extract Article 22 of the Constitution of
India, which reads as follows:
“22. Protection against arrest and detention in
certain cases.— (1) No person who is arrested shall be
detained in custody without being informed, as soon as may
be, of the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by, a legal practitioner
of his choice.
(2) Every person who is arrested and detained in
custody shall be produced before the nearest magistrate
within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place
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of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without
the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply—
(a) to any person who for the time being is an
enemy alien; or
(b) to any person who is arrested or detained
under any law providing for preventive detention.
(4) No law providing for preventive detention
shall authorise the detention of a person for a longer period
than three months unless—
(a) an Advisory Board consisting of persons who
are, or have been, or are qualified to be appointed as,
Judges of a High Court has reported before the expiration
of the said period of three months that there is in its opinion
sufficient cause for such detention:
Provided that nothing in this sub-clause shall
authorise the detention of any person beyond the maximum
period prescribed by any law made by Parliament under
sub-clause (b) of clause (7); or
(b) such person is detained in accordance with
the provisions of any law made by Parliament under sub-
clauses (a) and (b) of clause (7).
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(5) 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) Nothing in clause (5) shall require the
authority making any such order as is referred to in that
clause to disclose facts which such authority considers to be
against the public interest to disclose.
(7) Parliament may by law prescribe—
(a) the circumstances under which, and the class
or classes of cases in which, a person may be detained for a
period longer than three months under any law providing
for preventive detention without obtaining the opinion of an
Advisory Board in accordance with the provisions of sub-
clause (a) of clause (4);
(b) the maximum period for which any person
may in any class or classes of cases be detained under any
law providing for preventive detention; and
(c) the procedure to be followed by an Advisory
Board in an inquiry under sub-clause (a) of clause (4).”
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15.Article 22 (1) and (2) deal with the arrest and remand,
whereas Article 22 (3) (b), (4) and (5) deal with preventive
detention.
16.Therefore, non-serving of the reasons and grounds for
arrest are clear violation of Article 22(1) and (2) of the Constitution
of India. Once it is held that arrest is unconstitutional due to
violation of Article 22(1), the continued custody of such a person
based on orders of remand is also vitiated. Filing of a charge-sheet
and the order of cognizance will not validate an arrest which is per
se unconstitutional, being violative of Article 22 (1) and (2) of the
Constitution of India. But, it has nothing to do with preventive
detention and not serving the copy of arrest memo that too without
stating any reasons and grounds for arrest to detenu cannot vitiate
the order of detention. This issue has been dealt with by the Full
Bench of this Court, as relied upon by the learned Additional Public
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Prosecutor, in the case of N.Fathima @ Laila Vs. State of Tamil
Nadu [(2024) 2 MLJ (Crl) 197], wherein it is held as follows:
“12. Thus, a plain reading of the Constitution,
even before moving to the pronouncements of the Courts,
would clearly indicate that the right of a preventive detenu
to be viewed differently and to be tested with the mandates
prescribed under clauses (3) to (6) of Article 22 of the
Constitution. Whereas, the right of the suspected accused
taken into judicial custody to be tested in the light of
clauses (1) and (2) of Article 22 of the Constitution. The
judicial pronouncements of this land had always been
jealous over protecting the right of the individual. This
could be understood from the March of Law, the judgments
since from the time of A.K.Gopalan's case [A.K.Gopalan vs.
State of Madras [1950 SCC 228]]. However, it is to be
borne in mind that neither the law nor the judicial
pronouncements had compelled the executives to
compromise the public order, which gives prominence to
individual liberty. All the judgments cited, had tested the
subjective satisfaction of the detaining authority in the
given facts and circumstances. All these observations made
have to be confined to those cases and cannot be telescoped
to other cases, which are factually different.
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13. The litmus test for a detention order is
whether there was proper application of mind to arrive at
the subjective satisfaction by the detaining authority, and
whether the material placed before him either by the
sponsoring authority or from other sources, provides
adequate materials, which would give prima facie
satisfaction that a preventive detention of the said person
is unavoidable and imminent to maintain public peace.
14........
15........
16........
17. The first issue before this Court referred for
authoritative pronouncement is, whether the failure to
intimate the arrest of the suspected in the ground case
will have any bearing in the detention order and will it
render the detention order illegal.
18. The learned counsels appearing for the
petitioners submitted that after the 11 commandments of
the Hon'ble Supreme Court in D.K.Basu's case [cited
supra], the Union Government has thought fit to amend
the Criminal Procedure Code and also the respective
States had amended their Criminal Rules of Practice in
exercise of the power conferred under Section 477 Cr.P.C.
After introduction of Sections 41-A and 50-A in the
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Criminal Procedure Code, there can be no gainsay to
contend that it will not apply to detention orders. Any
defect in the ground case will have a direct bearing in the
decision making process of the detaining authority, who
is supposed to apply his mind fairly and take appropriate
decision. If there is inherent defect of not intimating the
arrest in the ground case, that defect, which is incurable,
has to be considered as defect in the detention order also.
Any detaining authority, if passes the detention order
without ensuring whether the detenu or his family
members or his friends informed about the arrest in the
ground case, it is an apparent indication of non-
application of mind. Any subjective satisfaction without
applying the mind holistically, suffers inherent defect and
will be fatal to the detention order.”
17.Thus, it is clear that the law of preventive detention is
designed to prevent the abuse of freedom by antisocial and
subversive elements which might imperil the national welfare or
public peace at large. Tamil Nadu Act 14 of 1982, known to the
legal fraternity as the 'Goondas Act' was enacted in order to ensure
the maintenance of public order in the State.
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18.Therefore, arrest or remand is not a prerequisite
condition for detaining a person under Act 14 of 1982. While
challenging the order of detention, the Court has to examine whether
there was proper application of mind leading to the subjective
satisfaction of the detaining authority and whether the material
placed before the detaining authority by the sponsoring authority or
from other sources provide adequate material to arrive at a prima
facie satisfaction that a preventive detention of the said person was
unavoidable and imminent to maintain public peace.
19.With the above background, while considering the
failure to state the reasons and grounds for arrest, it may be an
omission or lapse on the part of the sponsoring authority. However,
it has very little bearing on the decision making process of the
detaining authority. Though it is a clear violation of the provisions of
the Code of Criminal Procedure, it does not vitiate the order of
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detention, unless, the detenu raises such a ground in the
representation and establishes that non-intimation of the reasons and
grounds of arrest caused serious prejudice in availing legal remedies
to challenge the order of detention.
20.On perusal of the representation submitted by the
petitioner on behalf of the detenu, it is revealed that the detenu did
not even whisper about the grounds which are now raised before this
Court. Hence, non-intimation of the grounds and reasons for arrest
cannot be a ground to test the subjective satisfaction of the detaining
authority. It cannot be an ipso facto reason to hold the detention
order as illegal. It is not at all fatal to the order of the detention.
Therefore, the Judgments relied upon by the learned counsel
appearing for the petitioner are not helpful to the case on hand to
quash the order of detention. Other grounds raised by the learned
counsel appearing for the petitioner cannot be countenanced for the
above reasons to set aside the order of detention.
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21.In view of the above, this Court finds no grounds to
interfere with the order of detention. Accordingly, this Habeas
Corpus Petition is dismissed.
[G.K.I., J.] [R.P., J.]
07.01.2026
NCC :Yes/No
Index: Yes/No
ps
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To
1.The Principal Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai - 600 009.
2.The Commissioner of Police,
Office of the Commissioner of Police,
Madurai City,
Madurai.
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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G.K. ILANTHIRAIYAN,J.
AND
R. POORNIMA,J.
ps
07.01.2026
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