In a significant ruling, the Madras High Court has held that the date of preventive detention should also be counted while calculating the statutory period of five days within which the grounds for the detention order must be communicated to the detainee failing which the order would not survive.
Justices M. Sundar and R. Sakthivel passed the ruling while quashing a preventive detention order passed by the Tambaram Commissioner of Police under the category of ‘sexual offender’ on August 30, 2022 against R. Nishanth, 32, who had been booked in a rape case by the Selaiyur all women police.
Section 8(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug offenders, Forest offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act of 1982 requires the grounds for detention order to be served within five days.
However, in the present case, a booklet containing the grounds had been served upon the detainee, who had been imprisoned at the Puzhal Central Prison in the rape case, only on September 5, 2022. Petitioner’s counsel R. Subhadra Devi contended that there was a delay by one day and hence the detention order must be quashed.
Finding force in her submission, the judges said: “We are of the view that the date of detention has to be included for computing the requirement of five days.” They relied upon a ratio laid down by the Supreme Court in a different case on March 27 this year to conclude that the date of detention must also be counted.
While dealing with the issue of grant of statutory bail if the police fail to file a chargesheet within 60 days of remand (in offences for which the maximum punishment was up to 10 years) and within 90 days (in offences for which the maximum punishment was beyond 10 years), the Supreme Court had insisted on counting the date of remand too.
Therefore, taking a cue from that judgment, the Division Bench led by Justice Sundar ruled that the ratio would squarely apply to preventive detention orders which were more rigorous since they curtail the freedom of an individual not for an offence already committed by them but to prevent them from committing similar offences in the future.
Therefore, the detention order in the present case suffers from infraction of Section 8(1) of the 1982 Act due to the grounds of detention having been served upon the detainee only on September 5, 2022 and not on or before September 4, 2022, the Bench held and listed it as a primary reason for quashing the detention order.
It went on to state that there was also no “live and proximate link” between the grounds of detention and the purpose of detention as the detainee had been remanded to judicial custody in the rape case on July 9, 2022 but the preventive detention order was passed only on August 30, 2022 after a delay of nearly two months.
Though an Additional Public Prosecutor explained that the delay was due to time taken for collecting necessary materials, the Bench did not find the explanation to be acceptable. Stating that such delay could be categorised either as ‘unreasonable delay’ or ‘unexplained delay,’ the judges said the present case would fall under the latter category.