Madras High Court
B.Esakkiammal vs State Of Tamil Nadu on 1 December, 2022
HCP(MD)No.1255 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.12.2022
CORAM
THE HON'BLE MR JUSTICE M.S. RAMESH
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
H.C.P.(MD)No.1255 of 2022
B.Esakkiammal ... Petitioner /
Mother of the Detenu
Vs.
1.State of Tamil Nadu,
Rep. by the Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The District Collector and District Magistrate,
Tirunelveli District,
Tirunelveli.
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli. ... Respondents
Page 1 of 8
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HCP(MD)No.1255 of 2022
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, calling for the entire records connected with
the detention order passed in M.H.S.Confdl.No.67/2022 dated 14.05.2022
on the file of the 2nd Respondent and quash the same and direct the
respondents to produce the detenu or body of the detenu, namely
Ajithkumar, son of Balasubramanian, aged about 22 years, now detained at
the Central Prison, Palayamkottai before this Court and set him at liberty.
For Petitioner : Mr.N.Pragalathan
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
N. ANAND VENKATESH,J.
The petitioner is the mother of the detenu viz., Ajithkumar, son of
Balasubramanian, aged about 22 years. The detenu has been detained by the
second respondent by his order in M.H.S.Confdl.No.67/2022 dated
14.05.2022 holding him to be a "Goonda", as contemplated under Section
2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this
Habeas Corpus Petition.
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HCP(MD)No.1255 of 2022
2. Though several grounds have been raised in the Habeas Corpus
Petition, the learned counsel for the petitioner focussed his argument on the
ground, wherein, the detaining authority has taken into consideration the
fact that the accused, who are similarly placed, have been granted bail by
the competent Court.
3. The learned counsel for the petitioner submitted that the detaining
authority, without the availability of materials, cannot ipso facto satisfy
himself regarding the imminent possibility of the detenu coming out on bail,
merely on the ground that the accused, who are similarly placed have been
granted bail.
4. The learned counsel for the petitioner relied upon the judgment of
the Hon'ble Supreme Court in Rekha v. State of Tamil Nadu [(2011) 5
SCC 244] to substantiate his submission.
5. The learned Additional Public Prosecutor, on instructions,
submitted that the detenu was arrested on 16.04.2022. Thereafter, the
investigation was completed and final report was filed on 30.04.2022 on
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HCP(MD)No.1255 of 2022
time and it has been taken on file in S.C.No.282/2022 before IV-Additional
District Court, Tirunelveli.
6. The main ground that was urged by the learned counsel for the
petitioner is that the detaining authority after taking note of the fact that the
the detenu is not filed any bail application, came to a conclusion that there is
a likelihood of the detenu coming out on bail by relying upon the bail order
passed in Cr.M.P.No.5531/2021 dated 13.09.2021. According to the learned
counsel appearing for the petitioner, the similar case that was taken into
consideration by the detaining authority to come to a conclusion that there is
a likelihood of the detenu being released on bail, is not a similar case.
Hence, the detention order suffers from non application of mind.
7. We have carefully considered the submissions made by the learned
counsel for the petitioner as well as the learned Additional Public
Prosecutor appearing on behalf of the respondents.
8. We have carefully gone through the detention order as well as the
bail order passed in Cr.M.P.No.5531/2021 dated 13.09.2021. It is seen that
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HCP(MD)No.1255 of 2022
in that case the accused therein was granted bail on the ground that no
serious objection was raised by the prosecution and that apart the accused
therein had suffered incarceration nearly 81 days. By no stretch, the said
order cannot be considered to be a similar case. Hence, we find that the
subjective satisfaction arrived at by the detaining authority with regard to
the likelihood of the detenu coming out on bail suffers from non-application
of mind on the part of the detaining authority.
9. The issue that has been raised by the learned counsel for the
petitioner is no longer res integra and it is covered by the judgment that has
been cited by the learned counsel for the petitioner, which has been referred
supra.
10. The Hon'ble Supreme Court has categorically held in the above
judgment that the accused persons, who are similarly placed being granted
bail by the same Court or by a higher Court, cannot be a ground for the
detaining authority to come to such a subjective satisfaction without there
being any materials to substantiate the same. This by itself reflects non
application of mind on the part of the detaining authority. Therefore, the
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HCP(MD)No.1255 of 2022
order of detention is liable to be interfered with.
11.In the result, the Habeas Corpus Petition is allowed and the order
of detention in M.H.S.Confdl.No.67/2022 dated 14.05.2022 passed by the
second respondent is set aside. The detenu, viz., Ajithkumar, son of
Balasubramanian, aged about 22 years, is directed to be released forthwith
unless his detention is required in connection with any other case.
(M.S.R.,J.) & (N.A.V.,J.)
01.12.2022
Index : Yes/No
Internet : Yes
PJL
To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The District Magistrate and District Collector,
Tirunelveli District,
Tirunelveli.
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HCP(MD)No.1255 of 2022
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1255 of 2022
M. S. RAMESH,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.1255 of 2022
01.12.2022
https://www.mhc.tn.gov.in/judis
