Madras High Court: In two habeas corpus petitions (‘HCPs’) praying to call for the records in connection with the detention orders passed by the District Collector and to quash them and direct the respondents to produce the detenus before this Court and set him at liberty, the division bench of M. Sundar* and R. Sakthivel, JJ. while setting aside both the preventive detention orders, directed the authorities to set the detenus at liberty.
After perusing the admission board orders, the Court noted that both the HCPs challenged the impugned preventive detention orders on two points. Firstly, on Section 8(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers, Act, 1982 (‘Act, 1982’). Secondly, on Banik principle i.e., live and proximate link between the grounds of detention and purpose of detention having snapped. However, in the final hearing, the petitioner challenged the impugned preventive detention orders only in the first ground.
The Court took note of M. Shylaja v. State, 2023 SCC OnLine Mad 289, wherein it was held that violation of Section 8(1) of Act, 1982 vitiates a preventive detention order and renders it liable for being set aside as its violation impairs the right of a detenu to make an effective representation against the preventive detention order.
The Court noted that the impugned preventive detention orders and the grounds of impugned preventive detention orders have been served on the detenus on 30- 06-2023. Section 8(1) of Act, 1982 talks about communicating to the detenu the grounds on which preventive detention order has been made as soon as may be, but ordinarily not later than five days. These five days start from the ‘date of detention pursuant to the preventive detention order’. In this regard, the scheme of the Act 1982 is such that a preventive detention order under the statute can be made either against a person who is already in prison or who is a free citizen.
The State submitted that there is only one day delay and therefore the infraction of Section 8(1) of Act, 1982 is not very serious.
The Court said that in the present case, the detenus were already incarcerated. Therefore, it is a case of formal arrest, as Section 8(1) of Act, 1982 talks about ‘detention in pursuance of a detention order’. This means that the date on which the preventive detention order is served on the detenu is the date on which the formal arrest in pursuance of the preventive detention order is made.
After taking note of Enforcement Directorate v. Kapil Wadhawan, 2023 SCC OnLine SC 972, the Court said that the Kapil Wadhawan principle would apply with greater force i.e., all fours to a preventive detention case. Further, the Court said that preventive detention is not a punishment, and that habeas corpus petition is a high prerogative writ. Thus, it engrafted Kapil Wadhawan principle into the present habeas corpus petition, and held that while computing five days within the meaning of Section 8(1) of Act, 1982, the date on which the preventive detention order is served on the detenu i.e., formal arrest pursuant to the preventive detention order should also be included.
Considering the question that whether the expression that ‘grounds on which the order has been made occurring in Section 8(1) of Act 1982 would mean the grounds of preventive detention order or would it include the grounds booklet also, the Court said that it will include the grounds booklet which contains the documents which constitute the substratum or the basis on which the grounds of preventive detention order has been made as the whole objective behind Section 8(1) of Act, 1982, is that the detenu should be given an opportunity to make a representation against a preventive detention order. This right of a detenu to make an effective representation against a preventive detention order is a very sacrosanct and sanctus constitutional right and such constitutional safeguard is ingrained in Article 22(5) of the Constitution of India.
As regards the five days, the Court said that the reasons are twofold. One is statutory and the other is constitutional. The statutory reason is contained in Section 8(1) of Act, 1982, which makes it clear that it is not just a question of five days, but it is ‘as soon as may be’. This means that statutorily five days is the outer limit and not leeway given. The constitutional reason vide Article 22(5) of the Constitution of India is that when liberty is deprived without trial it is imperative that the detenu is given earliest opportunity to make an effective representation against such detention. This is clear from the scheme of Act 14, 1982, wherein only three authorities have been vested with power to make detention orders and they are Commissioner of Police, District Collector and State. When the detention order is made by the Commissioner of Police or District Collector it would have a shelf life of only 12 days subject to confirmation by the Advisory Board, whereas only if it is made by the State it would have a longer shelf life of three months but this is also subject to authorisation by the Advisory Board and in event 12 months is the cap.
Thus, the Court had set out the reckoning date for computing five days i.e., the date on which formal arrest is made in cases where the detenu is already incarcerated. In cases where the detenu is not already incarcerated, it does not present a problem as it will be the date of arrest pursuant to preventive detention order.
Therefore, the Court said that in the present case, the reckoning date is 30-06-2023 and the date of service of grounds booklet is 06-07-2023. Even if 30-06-2023 is excluded, 06-07-2023 is beyond five days. The Bench was convinced that the impugned preventive detention orders have been vitiated owing to violation of Section 8(1) of Act, 1982 and both the impugned preventive orders deserve to be dislodged.
[Vasanthi v Secretary to Government, 2023 SCC OnLine Mad 6086, Order dated 29-08-2023]
*Order by: Justice M Sundar
Advocates who appeared in this case :
For Petitioner: Advocate V. Parthiban
For Respondents: Additional Public Prosecutor E. Raj Thilak