Failure to provide proper intimation of the detenu's arrest and the opportunity to make representation vitiates the preventive detention order.

JUDGMENT

(Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records in connection with the order of detention passed by the second respondent dated 08.09.2022 in B3/D.O.No. 46/2022 against the petitioner''s father Dinakaran, male aged 45 years, S/o.Rathinakumar who is confined at Central Prison, Vellore and set aside the same and direct the respondents to produce the detenu before the Hon''ble Court and set him at liberty.)

M. Nirmal Kumar, J.

1. Captioned ''Habeas Corpus Petition'' [''HCP'' for the sake of brevity] has been filed by daughter of the detenu assailing a ''preventive detention order dated 08.09.2022 bearing reference B3/D.O.No.46/2022'' [hereinafter ''impugned detention order'' for the sake of convenience and brevity]. To be noted, fifth respondent is the sponsoring authority and second respondent is the detaining authority as the impugned detention order has been made by second respondent.

2. Impugned detention order has been made under ''The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)'' [hereinafter ''Act 14 of 1982'' for the sake of convenience and clarity] on the premise that the detenu is a ''Goonda'' within the meaning of Section 2(f) of Act 14 of 1982.

3. There is no adverse case. This solitary case which is the sole substratum of the impugned detention order is Crime No.188 of 2022 on the file of Thimiri Police Station for the alleged offences under Sections 147, 148, 341, 294(b), 427, 327, 307 and 302 of ''The Indian Penal Code (45 of 1860)'' [hereinafter ''IPC'' for the sake of convenience and clarity]. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.

4. Mr.D.Balaji, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, assisted by Mr.M.Sylvester John, learned counsel for all respondents are before us.

5. The main ground that was raised by the learned counsel for the petitioner is that the arrest of the detenu was not intimated to his near relatives and hence, there is statutory violation which vitiates the impugned detention order passed by the second respondent. To substantiate the same, learned counsel brought to our notice the Arrest Intimation Form (Page Nos.22 and 23 of the booklet).

6. The detenu was arrested in the course of investigation in Crime No.188 of 2022 on 03.08.2022. It is seen from column No.12 of the Arrest Intimation Form that the arrest of the detenu in the ground case was intimated to his son-in-law one Mr.Raja. Insofar as the signature of the witness is concerned, it is blank. There is mention about a mobile number to which SMS was sent. To substantiate the same, there is no other material.

7. The learned Additional Public Prosecutor submitted that the petitioner has not made any representation now putforth before this Court. Hence, the above contention may not be considered.

8. The Hon''ble Division Bench of this Court in the case of “Akilandeswari Vs. State, rep. by Secretary to Government, Home, Prohibition and Excise Department, Chennai-600009, reported in 2008 (3) MLJ (Crl.) 744”, held as follows:

“5. Though the learned Additional Public Prosecutor has made an attempt to justify by stating that the family members were intimated through telegrams, he has not placed any material to satisfy this Court as to whether any telegram was sent and the same was acknowledged either by the family members or relatives of the detenu. A right of intimation to the relatives or family members of the detenu encompasses itself the fundamental right guaranteed under Article 22(5) of the Constitution of India to make a representation to the