14 Sep 2023 6:21 AM GMT
The Madras High Court has made it clear that the five-day period for communicating the grounds of arrest to a detenu under Section 8 of the Tamil Nadu Prevention of Dangerous Activities Act, 1982 (TN act 14 of 1982) should be strictly adhered to as the right to make an effective representation against detention is sacrosanct under Article 22(5) of the Constitution. Section 8(1) of the...
The Madras High Court has made it clear that the five-day period for communicating the grounds of arrest to a detenu under Section 8 of the Tamil Nadu Prevention of Dangerous Activities Act, 1982 (TN act 14 of 1982) should be strictly adhered to as the right to make an effective representation against detention is sacrosanct under Article 22(5) of the Constitution.
Section 8(1) of the Act states that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.
Justice M Sundar and Justice R Sakthivel noted that since detention curtails the liberty of a person without trial, it was important that the detenu be given the earliest opportunity to make an effective representation against such detention. The court also noted that the period of five days provided in the Statute must not be used as a leeway but was only the outer limit.
“As regards five days, we are of the view that the rigour has to be more. The reasons are two fold. One is statutory and the other is constitutional. The statutory reason is contained in Section 8(1) of Act 14 of 1982. Section 8(1) of Act 14 of 1982 itself 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 a leeway given. The constitutional reason or logic is, vide Article 22(5) of the Constitution of India (as already alluded to supra) when liberty is deprived without trial it is imperative that the detenu is given earliest opportunity to make an effective representation against such detention,” the court observed.
The court was hearing two habeas corpus pleas challenging detentions made under the Act. In both cases, the detention order was passed on June 30, 2023, but the grounds booklet was served on the detenus only on August 6, 2023. Further, in both cases, the petitioners argued that there was an infraction of Section 8(1) of the Tamil Nadu Preventive Detention Act which in turn was an infraction of constitutional safeguard ingrained in Article 22(5) of the Constitution.
The State, on the other hand, argued that there was a delay of only one day and thus, the infraction of Section 8(1) was not very serious.
The court noted that violation of Section 8(1) impaired a detenu’s right to make effective representation and thus vitiated the detention order.
“This Court in M.Shylaja Vs.The Additional Chief Secretary to Government and others reported in 2023/MHC/193 (Neutral Citation) (SCC Online equivalent is 2023 SCC OnLine 289) held that violation of Section 8(1) of Act 14 of 1982 vitiates a preventive detention order and renders it liable for being set aside as violation of Section 8(1) of Act 14 of 1982 impairs the right of a detenu to make an effective representation against the preventive detention order as effective representation includes quick representation as detenu is incarcerated and it is a matter of sanctus liberty ingrained in Article 21 of the Constitution. This was posited on the logic that a right of the detenu to make an effective representation against a preventive detention order is a constitutional safeguard ingrained in Article 22(5) of the Constitution of India,” the court noted.
Further, the court also observed that the date of communication of the preventive detention order to the detenu should also be included while computing the five day period under the Preventive Detention Act. The court relied on the decision of the Supreme Court in Enforcement Directorate v Kapil Wadhawan wherein the Apex court had held that the date of remand should be included for considering default bail claim. Though Kapil Wadhawan (supra) dealt with default bail, the court opined that the decision therein was applicable to the present case also since both involved curtailment of personal liberty. Further since preventive detention did not involve trial, the court opined that the principle in Kapil Wadhawan would apply with greater force in preventive detention cases.
“We are acutely conscious that Kapil Wadhawan's case pertains to remand and as to whether the date of remand should also be taken into account for a default bail legal drill under Section 167(2) Cr.P.C. It was a reference before the Hon'ble Larger Bench, however, as that is also a matter of curtailment of liberty (as in the case on hand), we draw inspiration from Kapil Wadhawan principle and hold that while computing five days within the meaning of Section 8(1) of Act 14 of 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,” the court said.
With respect to “grounds on which order had been made”, the court observed that the grounds would include all such documents which formed the basis of grounds based on which the preventive detention order was made. The court noted that since the object of the Act was to give the detenu an opportunity to make an effective representation against detention, the grounds would include the grounds booklet including all the documents relied upon by the detaining authority.
“Though the plain language of Section 8(1) of Act 14 of 1982 talks about grounds, we have no hesitation in saying that the expression 'grounds on which the order has been made' occurring in Section 8(1) of Act 14 of 1982 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 14 of 1982, is the detenu should be given an opportunity to make a representation nay effective representation (in quick time as alluded to supra) against a preventive detention order,” the court observed.
The court also added that though the Act provides for a 5-day period, it did not mean that the detaining authority had to wait for the 11th hour for statutory compliance. The court added that the period given was a mere numeric statutory expression and that the emphasis was to supply the grounds “as soon as possible”.
In the present case, the court also noted that the reckoning date was June 30th while the grounds booklet was served on July 6th. Thus, even if the date of the detention order was excluded, the statutory time period was not complied with.
Thus, the court allowed both the petitions and directed both the detenus to be released forthwith.
Counsel for the Petitioner: Mr.V.Parthiban for Mr.D.Balaji
Counsel for the Respondents: Mr.E.Raj Thilak Additional Public Prosecutor
Citation: 2023 LiveLaw (Mad) 267
Case Title: Vasanthi v Secretary to Government