Proper intimation of arrest is essential for the detenu to exercise the right to make an effective representation, as guaranteed under Article 22(5) of the Constitution of India.

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 entire records connected with the detention order in C.No.2/NSA/S.C/2022 dated 15.10.2022 on the file of the 3rd respondent and quash the same and direct the respondents to produce the body and person of the petitioner''s husband, namely, Thiru.Kadhar Hussain, son of Kaja Maideen, aged abut 33 years now confined at Central Prison, Salem before this Court and set him at liberty forthwith.)

M. Nirmal Kumar, J.

Captioned ''Habeas Corpus Petition'' [hereinafter ''HCP'' for the sake of convenience and brevity] has been filed by wife of detenu assailing ''detention order dated 15.10.2022 bearing reference No.C.No.2/NSA/S.C/2022'' [hereinafter ''impugned detention order'' for the sake of convenience]. To be noted, the fifth respondent is the sponsoring authority and the third respondent is the detaining authority as impugned detention order has been made by the third respondent.

2. Impugned detention order has been made under ''The National Security Act, 1980 (Central Act 65 of 1980)'' [hereinafter ''NSA Act'' for the sake of convenience and clarity] on the premise that the detenu''s activities were prejudicial to the maintenance of public order within the meaning of Section 3(2) of NSA Act.

3. There is no adverse case. The ground case which is the sole substratum of the impugned detention order is Crime No.518 of 2022 on the file of Ammapet Police Station for alleged offences under Sections 153A, 436 and 511 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.A.Rajamohamed, learned counsel for petitioner, Mr.Rajesh Vivekananthan, learned Deputy Solicitor General of India [Madras High Court] for first respondent and Mr.R.Muniyapparaj, learned Additional Public Prosecutor assisted by Mr.M.Sylvester John, learned counsel for respondents 2 to 5 are before us.

5. Learned counsel for petitioner predicated his campaign against the impugned detention order on one short point and that is, in the Arrest Intimation Form it is recorded that the arrest of the detenu was informed to his wife one Ms.Sumaya through her mobile bearing No.7373336668 by way of SMS. He further submitted that this would not be a proper communication of arrest, more so, there is no statement recorded from the said Ms.Sumaya to confirm as to whether she received the arrest intimation, thereby hampered the right of the detenu to make an effective representation.

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

7. 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 Detaining Authority or the State Government, as the case may be. In the event the arrest is not intimated, the detenu would not be in a position to make any such representation and in that context, failure on the part of the Detaining Authority would amount to deprivation of the right of the detenu to make an effecti