P. Santhi v. Union of India, rep. By its Secretary
2014-06-14
G.CHOCKALINGAM, V.DHANAPALAN
body2014
DigiLaw.ai
JUDGMENT V. Dhanapalan, J. 1. The petitioner is the mother of the detenu. The detenu has been detained under sub-section (2) of Section 3 of the Puducherry Prevention of Anti-Social Activities Act, 2008 (Act No.10 of 2010) read with the order issued by the Government of Puducherry in G.O.Ms.No.12, dated 22nd February 2013 of the Home Department, Puducherry in G.O.Ms.No.12, dated 22nd February 2013 of the Home Department, Puducherry vide Detention Order of the second respondent passed in No.08/DM/RO/D2/PPASAA/2013 dated 11.09.2013. 2. The detenu came to adverse notice in the following cases: S. No. Police Station & Crime No. Section of Law 1. Crime No.309/2004, Grand Bazaar Police Station 147, 148, 341, 302 IPC r/w 149 IPC and 109 IPC 2. Crime No.310/2007, Orlianpet Police Station 402, 399, 25 of Arms Act 3. Crime No.455/2007, Grand Bazaar Police Station 147, 148, 302, 307 IPC r/w 149 IPC @ 147, 148, 302, 109 IPC, 120-B IPC r/w 149 IPC 4. Crime No.315/2007,Auroville Police Station 302, 201 IPC r/w 149 IPC @ 341, 302, 210, 109, 120-B IPC r/w 149 IPC 5. Crime No.180/2008, D' Nagar Police Station 302, 120-B IPC 6. Crime No.485/2008, Grand Bazaar Police Station 324, 427, 506(ii) IPC r/w 34 IPC 7. Crime No.21/2009, Mudaliarpet Police Station 147, 148, 148, 452, 302, 109 IPC r/w 149 IPC and 3 of Explosive Substances Act 8. Crime No.283/2009, Orleanpet Police Station, Puducherry 341, 323, 506(ii) IPC r/w 34 IPC 9. Crime No.256/2010, D' Nagar Police Station 307 IPC r/w 34 IPC and 3 and 4 of Explosive Substance Act,1908 @ 302 IPC r/w 34 IPC and 3 IPC r/w 149 IPC and 3 and 4 Explosive Substance Act, 1908 10. Crime No.200/2013 Town Police Station, Karaikal 399, 402 IPC 3. The Superintendent of Police (North) has reported that the detenu Veeraiyan is a dangerous person habitually involved in body offences punishable under the chapters XVI, XVII and XXII of the Indian Penal Code and hence, with a view to prevent him from acting in a manner prejudicial to the maintenance of public order in the Puducherry region, he is kept in preventive detention. 4.
4. Amidst several grounds raised to assail the impugned order of detention, learned counsel for the petitioner would mainly contend that the detaining authority failed to seek clarification from the sponsoring authority about the serving of arrest memo to the family members, relatives or friends of the detenu and there was no proof to show that the intimation of arrest was given, which clearly shows non-application of mind on the part of the detaining authority. 5. Heard Mr.M.R.Thangavel, learned Additional Public Prosecutor (Pondy), on the above submission. 6. A scrutiny of the Arrest Memo annexed at page 149 of the booklet would show that the arrest of the detenu was not intimated to any of the family members, relatives or friends of the detenu. When a person is taken into custody pursuant to a detention order, the members of his/her household, preferably his/her parents, spouse or children must be informed in writing of the passing of the detention order against the detenu(e) as also the fact that the detenu(e) has been taken into custody, by duly intimating as to the place of detention including the place where the detenu(e) is transferred from time to time, which would ensure the right of the person arrested under preventive detention. If such intimation of arrest is not made effectively, then it would confer a right upon the person arrested to impugn the arrest effected on him/her. In the case on hand, since there is no proof to exhibit intimation of arrest to the family members of the detenu, the detention order is liable to be vitiated on the ground of deprivation of right guaranteed under Article 22(1) of the Constitution of India. 7. In similar circumstances, a Hon'ble Division Bench of this Court in the case of Shanmugam and another vs. State of Tamil Nadu and another, reported in (2013) 4 MLJ (Crl) 1, while issuing some suggestions and guidelines to the Government of Tamil Nadu, set aside the order of detention, by observing as under: "19.
7. In similar circumstances, a Hon'ble Division Bench of this Court in the case of Shanmugam and another vs. State of Tamil Nadu and another, reported in (2013) 4 MLJ (Crl) 1, while issuing some suggestions and guidelines to the Government of Tamil Nadu, set aside the order of detention, by observing as under: "19. Despite clear instructions given by the Government after touching upon the legal position, the officer, who arrested the detenus informed the said arrest to the wife and friend of detenus over cellphone, by simply stating that the date of arrest being Sunday, no telegraphic service was available, which is a matter of ignorance on the part of arresting authorities, as in our country, telegraphic services are available even on Sundays. The mode of communication adopted by the authorities, which was not even looked into by the detaining authorities is not only unknown to the settled principles, but also is an attempt to cast aside the instructions given by the Government." 8. In view of the above, the impugned detention order dated 11.09.2013 passed by the second respondent vide Order No.08/DM/RO/D2/PPASAA/2013 detaining the detenu namely, P.Veeraiyan, is quashed and the Habeas Corpus Petition is allowed. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. 9. However, it is made clear that this order shall not preclude the authorities concerned to effectively contest the matter before the Regular Court, uninfluenced by the above order. It is also made clear that this order shall not confer any right or advantage whatsoever to the detenu to claim anything before the Regular Court.