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2023 Supreme(Mad) 2079
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, R. SAKTHIVEL, JJ.
Rehman Sharif & Others – Appellants
Versus
The Secretary to Government, Home, Prohibition & Excise Department, Chennai & Others – Respondents
H.C.P. Nos. 64, 82, 143, 150, 153, 164, 180, 188, 212, 217, 249 of 2023
Decided On : 10-07-2023
For the Petitioners:K. Anand, Advocate. For the Respondents: E. Raj Thilak, Additional Public Prosecutor.
The detaining authority must apply his mind and ensure that the detenu's right to make an effective representation is not impaired in order to uphold constitutional safeguards in preventive detention cases.
Headnote:
Habeas Corpus - Detention Order under Cyber Law - The court set aside the preventive detention order on the grounds that the detaining authority failed to apply his mind and the detenu's right to make an effective representation was impaired, leading to the violation of constitutional safeguards.
Fact of the Case:
The petitioner filed a Habeas Corpus Petition challenging a detention order under the Tamil Nadu Prevention of Dangerous Activities Act, 1982, on the grounds that the detaining authority failed to apply his mind and the detenu's right to make an effective representation was impaired.
Finding of the Court:
The court found that the detention order was based on alleged offenses under the Indian Penal Code and the Information Technology Act. It concluded that the detenu's right to make an effective representation was impaired due to unreadable pages in the grounds booklet, leading to the setting aside of the preventive detention order.
Issues: The issues involved the failure of the detaining authority to apply his mind and the impairment of the detenu's right to make an effective representation against the preventive detention order.
Ratio Decidendi: The court held that the detaining authority's failure to apply his mind and the impairment of the detenu's right to make an effective representation led to the violation of constitutional safeguards, warranting the setting aside of the preventive detention order.
Final Decision: The court allowed the Habeas Corpus Petition, set aside the preventive detention order, and directed the detenu to be set at liberty forthwith.
JUDGMENT
(Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to direct the respondents to produce the body of the detenu Salman Sharief, aged 29 years, S/o.Shakeel Sharief, who is detained in Central Prison, Puzhal, Chennai, before this Court and pass an order to call for the records of detention order passed by the second respondent in No.487/BCDFGISSSV/2022 dated 28.12.2022 against the petitioner''s brother Salman Sharief, aged 29 years, S/o.Shakeel Sharief, and set aside the same and set the detenu at liberty.)
M. Sundar, J.
1. When the captioned ''Habeas Corpus Petition'' (hereinafter ''HCP'' for the sake of convenience and clarity) was listed in the Admission Board on 20.01.2023, this Court made the following order:
''Captioned Habeas Corpus Petition has been filed in this Court on 09.01.2023 inter alia assailing a detention order dated 28.12.2022 bearing reference No.487/BCDFGISSSV/2022 made by ''second respondent'' [hereinafter ''Detaining Authority'' for the sake of convenience and clarity].
2. The brother of the detenu is the petitioner.
3. Mr.K.Anand, learned counsel on record for habeas corpus petitioner is before us. Learned counsel expresses regret for not representing the matter yesterday.
4. The aforementioned detention order has been made on the premise that the detenu is a ''Cyber Law Offender'' under Section 2(bb) of ''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].
5. The detention order has been assailed inter alia on the ground that the Detaining Authority has failed to apply his mind as he has not noted the fact that the Sponsoring Authority has not placed the papers relating to the adverse case.
6. Prima facie case made out for issue of notice.
7. Admit. Issue notice returnable in four weeks.
8. Mr.R.Muniyapparaj, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.''
2. The aforementioned order made in the 20.01.2023 Admission listing shall be read as an integral part and parcel of this order which means that the short forms, short references and abbreviations used in the order in the Admission listing shall be used in the instant order also.
3. There is no adverse case. The ground case which is the sole substratum of the impugned detention order is Crime No.130 of 2022 on the file of Cyber Crime Division I for the alleged offences under Section 420 of ''The Indian Penal Code (45 of 1860)'' [hereinafter ''IPC'' for the sake of convenience and clarity] and Sections 4, 20, 21, 25 of Indian Telegraph Act, 1885 and Section 66C of Information Technology (Amendment) Act, 2008. 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.K.Anand, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5. As would be evident from the aforementioned 20.01.2023 Admission Board proceedings, at the time of admission, the point that detaining authority has failed to apply his mind as sponsoring authority has not placed before him papers relating to adverse case was projected but in the Final Hearing Board today, Mr.K.Anand, learned counsel for petitioner submitted that some of the pages in the grounds booklet are completely not readable. As an illustration, learned counsel drew our attention to page No.213 which is as follows:
6. To be noted, learned counsel poin
