Detaining Authority Must Show That Detention Strictly Follows Procedure Established by Law: Madras High Court

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A petition was filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to set aside the order of detention passed by the District Magistrate and to set the detenu at liberty.

Facts of the Case

In the case of Sathya vs. The Secretary to Government & Ors, the petitioner is the wife of the detenu. The detenu was held to be a “Sand Offender” as contemplated under Section 2(gg) of Tamil Nadu Act 14 of 1982. In furtherance of this, a detention order was passed by the district magistrate.  This order was challenged by the Habeas Corpus petition. On 7th October 2020, the High Court allowed the petition and quashed the detention order. 

Arguments of the Parties

According to the learned counsel appearing on the behalf of the petitioner, the detaining authority has stated in the Arrest Memo furnished to the detenu that his arrest was intimated to his friend. However, there was no material to substantiate the service of arrest intimation stated to have been made to the friend of the detenu.

Therefore, it was contended that the detenu was deprived of making an effective representation in the court of law in the absence of furnishing of full particulars by the detaining authority.

Observation of the Court

After looking at the evidence, the Court observed that a mere endorsement was made by the authorities to the effect that news of the was delivered to the friend of the detenu through SMS, but no materials were furnished to substantiate that the said intimation was actually sent through registered post or as per the procedure laid down.

Therefore, non-furnishing of details given to the relatives/friends of the detenu would amount to a 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.

“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”.

Court’s Order

The Court allowed the petition and quashed the detention order

Click the link to view the original judgement


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