H.C.P(MD)No.870 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.09.2022
CORAM
THE HON'BLE Mrs.JUSTICE J.NISHA BANU
AND
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
H.C.P(MD)No.870 of 2022
Mookkayee ...Petitioner/
mother of the detenu
Vs.
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat Chennai-9.
2.The District Collector and District Magistrate
Tiruchirappalli District
Tiruchirappalli.
3.The Superintendent of Prison,
Central Prison,
Trichy. ...Respondents
PRAYER: This Habeas Corpus Petition is filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Habeas Corpus,
to call for the records pertaining to the impugned detention order passed
by the 2nd respondent made in his proceedings in Cr.M.P.No.14/2022
dated 23.02.2022 in detaining the detenu under Section 2(f) of the Tamil
Nadu Act 14 of 1982 as a Goonda and quash the same and direct the
respondents to produce the detenu namely Raja @ Kothanar Raja
S/o.Ganesan, male aged 34 yeaers, who is detained at Central Prison,
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H.C.P(MD)No.870 of 2022
Trichy, before this Court and set him at liberty.
For Petitioner :Mr.K.M.Karunakaran
For Respondents : Mr.A.Thiruvadikumar
Addl. Public Prosecutor
ORDER
J.NISHA BANU, J.
AND N.ANAND VENKATESH, J.
The present Habeas Corpus Petition is directed against the Detention Order passed by second respondent in Detention Order in Cr.M.P.No.14/2022 dated 23.02.2022.
2.The Sponsoring Authority had recommended for the detention of the detenu under Act 14 of 1982 on a solitary case registered against the detenu and the detenu was thereafter arrested in the said case.
The Detaining Authority has branded the detenu as a ''Goonda'' and has passed the Detention order, dated 23.02.2022.
3.The learned counsel for the Petitioner submitted that there is total non application of mind on the part of the detaining authority in taking into consideration the bail order passed in Crl.M.P.No.1299/2012 https://www.mhc.tn.gov.in/judis 2/9 H.C.P(MD)No.870 of 2022 dated 08.11.2012, which cannot be considered to be a similar case.
4.In support of his contention, the learned counsel for the Petitioner relied upon the case of Rekha .vs. State of Tamil Nadu, through Secretary to Government and another reported in (2011) 5 SCC 244, wherein, it has been held as follows:
12. In Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr., (2011) 5 SCC 244, this Court while dealing with the issue held :
“7.A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co- accused on the same case, nor whether the bail orders were passed in respect of other co-
accused in cases on the same footing as the case of the accused…… https://www.mhc.tn.gov.in/judis 3/9 H.C.P(MD)No.870 of 2022
10.In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co- accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co- accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail……. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
27.In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the https://www.mhc.tn.gov.in/judis 4/9 H.C.P(MD)No.870 of 2022 detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.” (Emphasis added) Thus, it is evident from the aforesaid judgment that it is not the similar case, i.e. involving similar offence. It should be that the co-accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail.
13. So far as the appellant’s son is concerned, he had been arrested for the offence related to FIR No. 53 (6) 2011 under Section 302 IPC read with Section 25(1-A) Arms Act dated 14.6.2011. The FIR had been lodged against unknown persons, however, appellant’s son was arrested on 19.6.2011 in respect of the said offence. Subsequently, the detention order dated 30.6.2011 was passed by the District Magistrate under N.S. Act on various grounds, inter-alia, that the https://www.mhc.tn.gov.in/judis 5/9 H.C.P(MD)No.870 of 2022 appellant’s son was involved in extorting of money and giving shelter to underground members of unlawful association, namely, Kangleipak Communist Party vide notification published in the Gazette of India on 13.11.2009 as his activities were pre-judicial to the security of the State and maintenance of public order.
14.In support of the detention order, a large number of documents had been relied upon and supplied to the appellant’s son including the copy of FIR No.254 (12) 2010 under Section 17/20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter called UA (P) Act) and copy of FIR No. 210 (5) 2011 under Section 20 of the UA (P) Act and released orders in those cases dated 13.12.2010 and 1.6.2011 respectively had been passed.
15. In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co- accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the https://www.mhc.tn.gov.in/judis 6/9 H.C.P(MD)No.870 of 2022 impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law.
5.Heard the learned Additional Public Prosecutor appearing on behalf of the respondents.
6.We have carefully gone through the Detention Order. The detaining authority has specifically stated in the detention order that the detenu has not filed any bail application. However, the detaining authority has taken into consideration the bail order that has been granted in Crl.M.P.No.1299/2012 dated 08.11.2012 and this was taken to be a similar case as that of the detenu. Accordingly, the detaining authority has come to the conclusion that there is a likelihood of the detenu being granted bail. On carefully going through the order passed in Cr.M.P.No.
1299/2012 dated 08.11.2012, it is seen that the accused therein was only a co-accused arrayed as A4 and in that case, already four years had lapsed from the date of offence and substantial part of the investigation was also over. Considering the same bail was granted. This case cannot be taken to be a similar case by the detaining authority and it clearly reflects non application of mind on the part of the detaining authority.
https://www.mhc.tn.gov.in/judis 7/9 H.C.P(MD)No.870 of 2022 Consequently, the Detention Order stands vitiated.
7.In the result, the Habeas Corpus Petition is allowed and the order of detention in Cr.M.P.No.14/2022 dated 23.02.2022 passed by the second respondent is set aside. The detenu, namely, Raja @ Kothanar Raja, son of Ganesan, aged about 34 years, is directed to be released forthwith, unless his detention is not required in connection with any other case.
[J.N.B,J.] & [N.A.V.,J.]
23.09.2022
Index :Yes/No
Internet :Yes
RR
To
1.The 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat Chennai-9.
2.The District Collector and District Magistrate Tiruchirappalli District Tiruchirappalli.
3.The Superintendent of Prison, Central Prison, Trichy.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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AND N.ANAND VENKATESH, J.
RR ORDER MADE IN H.C.P(MD)No.870 of 2022 23.09.2022 https://www.mhc.tn.gov.in/judis 9/9