Santhi v. Secretary to the Government, Home Prohibition and Excise Department
2014-06-30
G.CHOCKALINGAM, V.DHANAPALAN
body2014
DigiLaw.ai
Judgment V. Dhanapalan, J. 1. The petitioner is the mother of the detenu. The detenu has been branded as a Goonda under the Tamil Nadu Act 14 of 1982 and detained under the order of the 2nd respondent passed in Memo No. 1594/BDFGISSV of 2013, dated 12.11.2013. 2. The detenu came to adverse notice in the following cases:– S. No. Police Station & Crime No. Section of Law 1. R-1 Mambalam Police Station Crime No. 752 of 2013 120(b), 147, 148, 341, 302 IPC r/w 149 IPC 2. R-1 Mambalam Police Station Crime No. 1442 of 2013 341, 294(b), 385 & 506(ii) IPC 3. R-2 Kodambakkam Police Station Crime No. 1919 of 2013 341, 294(b), 384 & 506(ii) IPC The ground case alleged against the detenu is one registered on 30.10.2013 by the Inspector of Police, Law and Order, R1 Mambalam Police Station in Crime No. 1491 of 2013 for offences under Sections 341, 294(b), 384, 427, 336, 307 and 506 (ii) IPC. 3. Amidst several grounds, learned counsel for the petitioner would contend that the Arrest Memo pertaining to the ground case is not furnished in the booklet and therefore, it could be construed that there was no intimation about the arrest of the detenu to his relatives or friends, on which ground, the impugned detention order is liable to be quashed. 4. Mr. P. Govindarajan, learned Additional Public Prosecutor, on verification of the booklet, would also submit that Arrest Memo of the detenu in the ground case is not furnished in the booklet. 5. On a scrutiny of the booklet, it is seen that Arrest Memo in respect of the detenu in the ground case is not furnished therein, giving a presumption that the arrest of the detenu was not served either to his relatives or friends. It is to be remembered that in order to meet fairness, justness and reasonableness, when a person is taken into custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken into custody, by duly intimating as to the place of detention, including the place where the detenu is transferred from time to time, which would ensure the right of the person arrested under preventive detention.
If such intimation of arrest has not been made effectively, then, it would confer a right upon the arrestee to impugn the arrest effected on him. In this case, since Arrest Memo itself is not furnished in the booklet, it is clear that the detaining authority, without seeking clarification as to the intimation of arrest of the detenu to his relatives or friends, has passed the impugned detention order. Therefore, the detention order would be vitiated on the ground of deprivation of right guaranteed under Article 22(1) of the Constitution of India. 6. 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 in this regard, 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." 7. Accordingly, the impugned detention order passed by the 2nd respondent, detaining the detenu, namely Seenu @ Venkatesan made in Memo No. 1594/BDFGISSV of 2013, dated 12.11.2013, 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. 8. 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.