A division bench of the Madras High Court comprising of Mr. Justice M. Sundar and Justice N. Anand Venkatesh was adjudicating upon a detention matter wherein the petitioner contended that the impugned detention order suffered from non-application of mind.
The court observed that no bail application was filed by the detenu and Section 167(2) Cr.PC would not have come to the aid of the detenu even if he had filed a bail petition. Hence, there was non-application of mind. The court emphasised on the fact that preventive detention is not a punishment and HCP is a high prerogative writ.
Brief Facts:
Impugned detention order had been made under 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyberlaw offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' ['Act 14 of 1982'] on the premise that the detenu is a 'Drug Offender' within the meaning of Section 2(e) of Act 14 of 1982. The ground case which is the sole substratum of the impugned detention order is for the alleged offences under Sections 8(c) read with 20(b)(ii)(C) and 29(1) of 'the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985)' ['NDPS Act'].
Contentions of the Petitioner:
The petitioner contended that the Detaining Authority was aware of the fact that no bail application was filed by the detenu till the impugned detention order was passed and in spite of the same, the Detaining Authority came to the conclusion that there is the likelihood of the detenu being let out on bail by relying upon an order dated 03.09.2018 passed in C.M.P.No.643 of 2018. The learned counsel for the petitioner submitted that the order that was relied upon by the Detaining Authority does not pertain to a similar case and hence, the impugned detention order suffers from non-application of mind.
Observations of the Court:
Firstly, the court observed that the bail application was filed by the accused therein under Section 167(2) of 'the Code of Criminal Procedure, 1973 (Act No.2 of 1974)' seeking statutory/default bail since the final report has not been filed within 180 days. Considering the same, the learned Additional District Judge/Presiding Officer granted statutory/default bail to the accused. As per the court, this order cannot be considered as a similar case since in the present case, no bail application has been filed by the detenu and Section 167(2) Cr.PC would not have come to the aid of the detenu even if he had filed a bail petition and hence, the impugned detention order suffers from non-application of mind.
The court remarked that preventive detention is not a punishment and HCP is a high prerogative writ.
Decision of the Court:
The Habeas Corpus Petition was allowed and the impugned detention was set aside.
Case Title: Vignesh vs The Secretary to the Government and others
Coram: Mr. Justice M. Sundar and Justice N. Anand Venkatesh
Case No.: H.C.P. No. 1737 of 2022
Advocate for the Petitioner: Mr. W. Camyles Gandhi
Advocate for the Respondents: Mr. R. Muniyapparaj
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