Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 2860 (MAD)

Elumalai v. State of Tamil Nadu

2021-10-22

P.N.PRAKASH, S.SRIMATHY

body2021
JUDGMENT : S. SRIMATHY, J. Prayer: Habeas Corpus Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus calling for the records relating to the detention order in Memo No. 20/BCDFGISSSV/2021 dated 23.02.2021 passed by the second respondent herein under the Tamil Nadu Act 14 of 1982 and set aside the same and direct the respondent to produce the petitioner’s son Dilli S/o Elumalai, aged about 26 years, who is now confined at Central Prison II, Puzhal, Chennai, before this Court and set him at liberty. 1. The petitioner is the father of the detenu viz. Dilli S/o Elumalai, aged about 26 years. The detenu has been detained by the second respondent by his order in Memo No. 20/BCDFGISSSV/2021 dated 23.02.2021, holding him to be a “Goonda” as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition. 2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority. 3. Though many grounds have been raised in the petition, learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention. According to the learned counsel appearing for the petitioner, the sponsoring authority has stated, in Page No. 84 of the Booklet furnished to the detenu, that the arrest of the detenu has been intimated to the mother of the detenu through SMS. However, there is no material to substantiate the service of arrest intimation stated to have been made to the mother of the detenu through SMS. Therefore, it is stated that the detenu was deprived of making an effective representation in the absence of furnishing of full particulars by the detaining authority. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind. 4. Per contra, the learned Additional Public Prosecutor would submit that the arrest of the detenu has been intimated to the mother of the detenu through SMS. 5. However we find that there are no material particulars to substantiate the same. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind. 4. Per contra, the learned Additional Public Prosecutor would submit that the arrest of the detenu has been intimated to the mother of the detenu through SMS. 5. However we find that there are no material particulars to substantiate the same. This Court has also taken the similar view in such cases that the detention order cannot be sustained. 6. As evidenced from the document in Page No. 84 of the Booklet furnished to us, a mere endorsement is made by the authorities to the effect that the arrest intimation has been informed to the mother of the detenu through SMS, but, no materials have been furnished to substantiate that the said intimation was sent through Thapal or Registered post or as per the procedure laid down. Therefore, non-furnishing of details given to the relatives of the detenu would amount to deprivation of the right of the detenu to make an effective representation and the same would vitiate the order of detention and the same cannot be sustained in the eye of law. 7. It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal. The impugned detention order is therefore liable to be quashed. 8. In the result, the Habeas Corpus Petition is allowed and the order of detention in Memo No. 20/BCDFGISSSV/2021 dated 23.02.2021 passed by the second respondent is set aside. The detenu, viz. Dilli S/o Elumalai, aged about 26 years, is directed to be released forthwith unless his detention is required in connection with any other case.