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2014 DIGILAW 1855 (MAD)

Shanthi @ Sahayamarie v. Secretary to Govt. , Home Department

2014-07-02

G.CHOCKALINGAM, V.DHANAPALAN

body2014
Judgment V. Dhanapalan, J. 1. The petitioner is the mother of detenu. The detenu has been branded as a "Goonda" under the Tamil Nadu Act 14 of 1982 and detained under order of the 2nd respondent passed in I.D.No.18/DM/RO/D2/PPSAAA/2013 dated 03.10.2013/G.O.Ms.No.80 dated 19.11.2013. 2. The detenu came to notice in the following adverse & ground cases:- Sr.No. Police Station and Crime No. Sections of Law 1. Orleanpet Police Station, Crime No.124 of 2006 Sections 323, 324, 506(ii) r/w 34 IPC 2. Orleanpet Police Station, Crime No.175 of 2008 Sections 323, 324, 506(ii) IPC r/w 34 IPC 3. Mudaliarpet Police Station, Crime No.306 of 2008 Sections 147, 148, 302 IPC r/w 149 IPC 4. Orleanpet Police Station, Crime No.453 of 2008 Sections 341, 323 and 506(ii) IPC 5. Orleanpet Police Station, Crime No.22 of 2010 Sections 294, 323 IPC r/w 34 IPC 6. Orleanpet Police Station, Crime No.144 of 2010 Section 27(1) of Arms Act, 1957 and 34 BIX of PP Act 7. Orleanpet Police Station, Crime No.65 of 2011 Sections 323, 324, 506(ii) r/w 34 IPC 8. Orleanpet Police Station, Crime No.355 of 2011 Section 27(1) of Arms Act, 1957 and 34 BIX of PP Act 9. Odiansalai Police Station, Crime No.362 of 2011 Sections 452, 427, 324, 387, 109 IPC r/w 34 IPC @ 147, 452, 427, 324, 387 IPC and 109 r/w 149 IPC @ 452, 395, 324, 427, 387 IPC and 109 IPC 3. Amidst several grounds raised by the learned counsel for the petitioner to attack the impugned order of detention, he has mainly focussed his argument that the detaining authority failed to ask clarification from the sponsoring authority about non serving of arrest memo in a proper manner to the family members, relatives or friends of the detenu and there was no proof to show that the intimation of arrest was given, as the arrest was communicated through Phone No.9245797060 to the father of the detenu, which clearly shows non-application of mind on the part of detaining authority. 4. Per contra, Mr. M.R. Thangavel, learned Additional Public Prosecutor (Pondy) submits that acts committed by the detenu are prejudicial to the maintenance of public order and peace and the arrest was communicated by way of phone to the father of the detenu, which is an effective and speedy way of communication available with the authorities and therefore, there is no illegality in making such intimation. 5. 5. We have considered the rival submissions and perused the materials available on record. 6. A close reading of the arrest memo, which is annexed at page no.51 of the booklet shows that the arrest of detenu in respect of Crime No.453 of 2008, 4th adverse case, was intimated to the father of the detenu over Cell Phone No.9245797060. But at the same time, it is to be remembered that in order to meet fairness, justness and reasonableness, after a person is taken in 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 in 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 the case on hand, detaining authority has stated that the arrest of the detenu had been communicated through phone to the elder sister of mother of the detenu, but, there is no proof to exhibit such intimation of arrest to the family members of the detenu. Thus, on the failure of the same, the detention order would be vitiated on the ground of deprivation of right guaranteed under Article 22(1) of the Constitution of India. 7. The 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." 8. Accordingly, the impugned detention order passed by the 2nd respondent, detaining the detenu, namely, Madhan @ Madhankumar, S/o. Madurai @ Dakshanakumar, made in I.D.No.18/DM/RO/D2/PPSAAA/2013 dated 03.10.2013/G.O.Ms.No.80 dated 19.11.2013, is quashed and the habeas corpus petition is allowed. The above named detenu, who is detained at the Central Prison, Puducherry, is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.