Nagavalli Vs. State of Tamilnadu Rep by - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

14. 06.2014 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN and THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM H.C.P. No.2883 of 2013 Nagavalli ... Petitioner vs.

1. State of Tamilnadu rep. by The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai 600 009.

2. The District Collector and District Magistrate, Thiruvarur District, Thiruvarur. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Habeas Corpus to direct the respondents to produce the petitioner's husband by name Pothuvudaimoorthy S/o Dharmalingam, aged 40 years before this Court now confined in Central Prison, Thriuchirapalli, set him at liberty and to call for the records pertaining to the order of detention passed in C.O.C.No.32/2013 dated 26.10.2013 passed by the second respondent and set aside the same. For Petitioner : Mr.T.Muruganantham For Respondents : Mr.P.Govindarajan Addl. Public Prosecutor ORDER

(Order of the Court was made by V.DHANAPALAN, J.) The petitioner is the wife of the detenu. The detenu Pothuvudaimoorthy has been branded as a ".Sand Offender". as contemplated under section 2(gg) of Tamil Nadu Act 14 of 1982 and detained under the order of the 2nd respondent made in C.O.C.No.32/2013 dated 26.10.2013.

2. The detenu came to adverse notice in the following cases:- S.No.Police Station & Crime No.Sections of Law 1 Muthupettai Police Station Crime No.441/2013 353, 379, 506(ii) IPC, 3(1) of Tamilnadu Public Property (Prevention of Damage & Loss) Act 1992 (Amended 1994) and 25(1)f(a)(b) Mines & Minerals Act 2 Muthupettai Police Station Crime No.463/2013 353, 379 IPC and 25(1)4(a)(b) Mines & Mineral Act The ground case alleged against the detenu is one registered on 16.10.2013 by the Inspector of Police, Muthupettai Police Station in Crime No.474/2013 for offences under Sections 387, 379, 506(ii) IPC and 25(1)4(a)(b) Mines & Mineral Act.

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 to Page No.12 of the booklet, he would vehemently contend that communication in respect of arrest of the detenu was given only to the Superintendent, Sub Jail, Thiruthuraipoondi 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 has been given only to the Superintendent, Sub Jail, Thiruthuraipoondi as could be seen from page 12 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 Pothuvudaimoorthy, S/o.Dharmalingam passed by the 2nd respondent in C.O.C.No.32/2013 dated 26.10.2013 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. (V.D.P.,J.) (G.C.,J.) 14.06.2014 Index : Yes/No Internet : Yes/No vri To :

1. State of Tamilnadu rep. by The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai 600 009.

2. The District Collector and District Magistrate, Thiruvarur District, Thiruvarur.

3. The Public Prosecutor High Court of Madras, Chennai. V.DHANAPALAN, J.

and G.CHOCKALINGAM,J.

vri Order in H.C.P.No.2883 of 2013 Dated:

14. 06.2014