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2022 Supreme(Mad) 1944
IN THE HIGH COURT OF JUDICATURE AT MADRAS
PARESH UPADHYAY, A.D. JAGADISH CHANDIRA, JJ.
Pushpalatha - Appellant
Versus
The Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Chennai & Others - Respondent
H.C.P. No. 2090 of 2021
Decided On : 20-06-2022
For the Petitioner:W. Camyles Gandhi, Advocate. For the Respondents: M. Babu Muthumeeran, Addl. Public Prosecutor.
The main legal point established in the judgment is that preventive detention must adhere to the procedure established by law and should only be used when ordinary law is insufficient.
Headnote:
Habeas Corpus - Detention Order - Non-application of mind by detaining authority
Fact of the Case:
The petitioner's husband was detained under Tamil Nadu Act 14 of 1982 on the grounds of being a 'Bootlegger'. The petitioner challenged the detention order on the basis of non-application of mind by the detaining authority.
Finding of the Court:
The court found that there was no material to substantiate the service of arrest intimation to the wife of the detenu, which deprived the detenu of making an effective representation. The court held that the impugned detention order was passed in total non-application of mind.
Issues: The main issue was the non-application of mind by the detaining authority in passing the detention order, specifically regarding the lack of furnishing full particulars to the detenu's wife for effective representation.
Ratio Decidendi: The court emphasized that personal liberty protected under Article 21 is sacrosanct and high in the scale of Constitutional values. It held that preventive detention must meticulously accord with the procedure established by law and that taking recourse to preventive detention law when ordinary law is sufficient is illegal.
Final Decision: The Habeas Corpus Petition was allowed, and the detention order was set aside. The detenu was directed to be released forthwith unless his detention was required in connection with any other case.
JUDGMENT
(Prayer: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to call for the entire records, relating to the petitioner's husband detention under Tamil Nadu Act 14 of 1982 vide detention order dated 01.12.2021 on the file of the second respondent herein made in proceedings Memo Cr.M.P.No.47/BL/2021/E1, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's husband viz., Saravanan @ Saravanakumar, S/o.Loganathan, aged 27 years, before this Court and set the petitioner's husband at liberty from detention, now the petitioner's husband detained at the Central Prison, Coimbatore.)
Paresh Upadhyay & A.D. Jagadish Chandira, JJ.
1. The petitioner is the wife of the detenu Saravanan @ Saravanakumar, S/o.Loganathan, aged 27 years. The detenu has been detained by the second respondent by his order in Cr.M.P.No.47/BL/2021/E1 dated 01.12.2021, holding him to be a "Bootlegger", as contemplated under Section 2(b) 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 respondents. We have also perused the records produced by the Detaining Authority.
3. Though many grounds have been raised in the petition, learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention. According to the learned counsel appearing for the petitioner, the sponsoring authority has stated in the Arrest Memo at page No.129 of the Booklet furnished to the detenu, that the arrest of the detenu has been intimated to the wife of the detenu. However, there is no material to substantiate the service of arrest intimation stated to have been made to the wife of the detenu. Therefore, it is stated that the detenu was deprived of making an effective representation in the absence of furnishing of full particulars by the detaining authority. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind.
4. Per contra, the learned Government Advocate (Crl.Side) would submit that the arrest of the detenu has been intimated to the wife of the detenu through SMS. He strongly opposed the habeas corpus petition by filing his counter.
5. However we find that there are no material particulars to substantiate the same. This Court has also taken the similar view in such cases that the detention order cannot be sustained.
6. As evidenced from the document in page No.129 of the Booklet furnished to us, a mere endorsement is made by the authorities to the effect that the arrest intimation has been informed to the wife of the detenu through SMS, but, no materials have been furnished to substantiate that the said intimation was sent through Thapal or Registered post or as per the procedure laid down. Therefore, non-furnishing of details given to the relatives of the detenu would amount to deprivation of the right of the detenu to make an effective representation and the same would vitiate the order of detention and the same cannot be sustained in the eye of law.
7. It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal. The impugned detention order is therefore liable to be quashed.
In the result, the Habeas Corpus Petition is allowed and the order of detention in Cr.M.P.No.47/BL/2021/E1 dated 01.12.2021, passed by the second respondent is set aside. The detenu, viz.,
