IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
24. 06.2014 CORAM: THE HON'BLE MR.JUSTICE V.DHANAPALAN and THE HON'BLE MR.JUSTICE G.CHOCKALINGAM Habeas Corpus Petition No.2926 of 2013 Sri Vidhya ... Petitioner vs.
1. State of Tamil Nadu, Rep. by its Secretary, Home, Prohibition and Excise Department, Fort St. George, Chennai 600 009.
2. The Commissioner of Police The Commissioner Office, Egmore, Chennai-600 008. ... Respondents Prayer: Writ petition under Article 226 of the Constitution of India is filed praying for issuance of a writ of Habeas Corpus, calling for the records relating to the detention passed by 2nd respondent in BDFGISSV No.1531/2013 dated 05.11.2013, quash the same and direct the respondents to produce the detenu Rajkumar @ Udayakumar @ Kumar, S/o.Nataraja Thevar, male, aged 49 years, now detained at the Central Prison, Puzhal, Chennai before this Hon'ble Court and set him at liberty. For Petitioner : Mr.C.C.Chellappan For Respondents : Mr.P.Govindarajan Addl. Public Prosecutor ***** ORDER
(Order of the Court was made by V.DHANAPALAN, J.) The petitioner is the sister of detenu. The detenu has been branded as a ".Goonda". as contemplated under Tamil Nadu Act 14 of 1982 and detained under the order of the 2nd respondent made in BDFGISSV No.1531/2013 dated 05.11.2013.
2. The detenu came to adverse notice in the following cases:- S.No.Police Station & Crime No.Sections of Law 1. R-3, Ashok Nagar Police Station, Crime No.582 of 2012 Section 379 IPC2 R-3, Ashok Nagar Police Station, Crime No.1661 of 2012 Section 379 IPC3 R-3, Ashok Nagar Police Station, Crime No.1802 of 2012 Section 379 IPC4 R-3, Ashok Nagar Police Station, Crime No.2188 of 2012 Section 379 IPC5 R-3, Ashok Nagar Police Station, Crime No.280 of 2013 Section 379 IPC6 R-10, M.G.R.Nagar Police Station, Crime No.655 of 2013 Section 379 IPC7 R-3, Ashok Nagar Police Station Crime No.735 of 2013 Section 379 IPC8 R-3, Ashok Nagar Police Station Crime No.1786 of 2013 Sections 454 and 380 IPC9 R-3, Ashok Nagar Police Station Crime No.1787 of 2013 Sections 454 and 380 IPC10 R-3, Ashok Nagar Police Station Crime No.1907 of 2013 Section 379 IPC11 R-3, Ashok Nagar Police Station Crime No.1920 of 2013 Section 379 IPC12 R-7, K.K.Nagar Police Station Crime No.1634 of 2013 Section 379 IPC13 R-3, Ashok Nagar Police Station Crime No.1977 of 2013 Section 379 IPC The ground case alleged against the detenu is one registered on 08.10.2013 by the Inspector of Police, R-3, Ashok Nagar Police Station in Crime No.2088 of 2013 for offences under Sections 341, 336, 427, 397 and 506(ii) IPC.
3. Amidst several grounds raised to assail the impugned order of detention, learned counsel for the petitioner would mainly contend that as per Article 22(1) of the Constitution of India, as soon as the arrest is made, it must be communicated to the relatives of the person arrested. If such constitutional requirement is not satisfied, then the detention order clamped on the detenu is liable to be vitiated on the ground of violation of Article 22(1). Pointing out to Page No.171 of the booklet, he would vehemently contend that communication in respect of arrest of the detenu in respect of Crime No.655 of 2013, 6th adverse case, was given only to the Jailor, Central Prison, Puzhal, Chennai and therefore it will not serve the purpose for which the arrest communication is to be made. He would also contend that as per the dictum laid down by the Hon'ble Supreme Court in A.K.Roy Vs. Union of India and another (AIR1982SC7101), there must be a communication to the relatives of the person arrested to enable them take steps to bail out the arrested person and if it is communicated to the prison authorities, the entire object will be defeated and the constitutional mandate will not be achieved.
4. Controverting the above submission, Mr.P.Govindarajan, learned Additional Public Prosecutor would submit that since the detenu was in prison, the arrest intimation was served through the Superintendent of the Prison and therefore, there is no violation of the constitutional requirement and that will serve the purpose and thereby the detenu will know about his arrest.
5. We have heard the learned counsel on either side and perused the material documents available on record.
6. In the case of In A.K.Roy Vs. Union of India and another (AIR1982SC7101)) and D.K.Basu Vs. State of West Bengal (1997) 1 SCC416, the Hon'ble Supreme Court has held that immediately 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. Intimation must also be given as to the place of detention including the place where the detenu is transferred from time to time.
7. In similar circumstances, following the above said Supreme Court decisions, this Court in the case of Devi and others vs. The Government of Tamilnadu and another, by an order dated 11.06.2014, has set aside the orders of detention against the detenus therein, by holding as under: 10. Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21 provides no person shall be deprived of his life or personal liberty except according to procedure established by law.'' Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression ''life or personal liberty'' has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Section 50 Cr.P.C. enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. As laid down in A.K.Roy's case and D.K.Basu's case, it is imperative that immediately 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. Intimation must also be given as to the place of detention including the place where the detenu is transferred from time to time.
11. On verification of the booklets in all these cases, particularly the arrest memos would reveal that the communications have been sent either to the Superintendents or Jailors of the Prisons. The sponsoring authorities have failed to comply with the constitutional requirements. Therefore, we are of the considered opinion that there is a violation of constitutional requirement. If such orders are passed by the detaining authorities, based on such an information, which is not supplied and communicated either to the detenu or the relatives or the parties, the purpose of constitutional requirement will be defeated and the provisions of the Act contemplating the manner and the procedure under which it should be done, has also to be followed by them. Such a failure would vitiate the entire process and therefore, the impugned orders of detention are unsustainable in law. Accordingly, the impugned orders of detention are set aside.'' 8. In view of the above, we are of the considered opinion that there is a violation of constitutional requirement in this case also, as the intimation of arrest of the detenu in respect of Crime No.655 of 2013, 6th adverse case, has been given only to the Superintendent, Central Prison, Puzhal, Chennai as could be seen from page 171 of the booklet and there is no communication either to the detenu or to his relatives, thereby defeating the constitutional requirement.
9. Accordingly, the impugned detention order detaining the detenu Rajkumar @ Udayakumar @ Kumar, S/o.Nataraja Thevar, passed by the 2nd respondent in BDFGISSV No.1531/2013 dated 05.11.2013, is quashed and the Habeas Corpus Petition is allowed. The above named detenu, who is confined at the Central Prison, Puzhal, Chennai, is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.
10. However, in view of serious offence involved in this matter, it is open to the prosecution 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. [V.D.P.,J.]. [G.C.,J.]. 24.06.2014 Index: Yes / No Internet: Yes / No ar V.DHANAPALAN, J.
and G.CHOCKALINGAM,J.
ar To 1. State of Tamil Nadu, Rep. by its Secretary, Home, Prohibition and Excise Department, Fort St. George, Chennai 600 009.
2. The Commissioner of Police The Commissioner Office, Egmore, Chennai-600 008.
3. The Superintendent, Central Prison, Puzhal, Chennai.
4. The Public Prosecutor High Court, Madras Habeas Corpus Petition No.2926 of 2013 24.06.2014