Interference at a pre-detention stage should be exceptional and based on concrete evidence of potential violation of Article 21 of the Constitution.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, to forbear the 2nd and 3rd respondents from passing order against the petitioner now confining at Central Prison, Puzhal by detaining him under the preventive Detention in particularly Tamil Nadu Act No.14 of 1982.)

1. This Writ Petition has been filed for the issue of a Writ of Mandamus forbearing the Respondents from invoking Act 14 of 1982, against the Petitioner.

2. The case of the Petitioner is that a complaint was lodged by one Mr. Kurian Poulose before the 3rd Respondent to the effect that the accused persons were involved in a fraudulent financial scheme and had unjustly enriched themselves to the tune of nearly Rupees Forty-Five crores. Based on the complaint, an FIR came to be registered in Crime No. 453 of 2017 for offences under Sections 406, 420 and 506(i) IPC. The FIR named one Mr. Jayaraj as the accused person and he is A1 in the present case. In the course of investigation, the involvement of the Petitioner also came to surface and he was enquired and on collecting necessary materials, the Petitioner was arrested and he was remanded to judicial custody on 02.01.2021.

3. The case of the Petitioner is that he has nothing to do with the entire transaction and he has been falsely roped in this case. According to the Petitioner, A1 has already been detained under Act 14 of 1982 and effective steps are being taken to detain the Petitioner also under the said Act. Therefore, the Petitioner made a representation to the Respondents in this regard on 21.01.2021 and he explained his position and requested the Respondents not to issue any detention order against him. Since the same was not considered, the present Writ Petition has been filed before this Court.

4. Mr.S.Prabhakaran, learned Senior Counsel for the Petitioner submitted that there is a strong apprehension for the Petitioner that he will be detained under Act 14 of 1982 and there are absolutely no grounds to detain the Petitioner since he is not a habitual offender. The learned Senior Counsel further submitted that there is already a Criminal Case registered by the 3rd Respondent in which the Petitioner has been added as A2 and he has been remanded to judicial custody and the Petitioner will establish his innocence in this case. The learned Senior Counsel submitted that detaining the Petitioner under Act 14 of 1982, will be in direct violation of Article 21 of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”), since such a detention will be illegal and it will have adverse consequences on the life and liberty of the Petitioner.

5. The learned Senior Counsel, in order to substantiate his submissions relied upon the following judgments:

(i) S.M.D. Kiran Pasha v. Government of Andhra Pradesh and Ors. reported in 1990 (1) SCC 328;

(ii) Selva Kumar v. State of Tamil Nadu reported in 1991 (3) MLJ Crl 516; and

(iii) Addl. Secy. To the Govt. of India v. Alka Subhash Gadia (Smt) reported in 1992 SCC Supp 496

6. Per contra, the learned Government Advocate appearing on behalf of the Respondents submitted that a Writ Petition can never be entertained merely based on apprehensions. The learned Government Advocate further submitted that a writ of mandamus cannot be issued forbearing a statutory authority from performing his function. It was further contended that the Petitioner cannot anticipate that an illegal detention order will be passed against him and such anticipation cannot give raise to a cause of action to file the present Writ Petition.

7. This Court has carefully considered the submission made on either side and the materials available on record.

8. The Petitioner has been arrayed as A2 in the present case and he was arrested and remanded to judicial custody on 02.01.2021. The Petitioner apprehends that a detention order will be passed against him under Act 14 of 1982, only on the ground that A1 has already been detained un