Madras High Court
Amala Pushpam vs State Of Tamil Nadu on 1 December, 2022
HCP(MD)No.1168 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.1168 of 2022
Amala Pushpam ... 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,
Thoothukudi District,
Thoothukudi.
3.The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli. ... Respondents
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HCP(MD)No.1168 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 H.S.(M) Confdl.No.98/2022 dated 18.05.2022
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
Sahayavinoth, son of Krishnan @ Arockya Xavier, aged about 38 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., Sahayavinoth, son of
Krishnan @ Arockya Xavier, aged about 38 years. The detenu has been
detained by the second respondent by his order in Detention Order H.S.(M)
Confdl.No.98/2022 dated 18.05.2022 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.1168 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 20.04.2022. Thereafter, the
investigation was completed and final report was filed on 20.05.2022 and
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HCP(MD)No.1168 of 2022
the same was taken on file in S.C.No.147/2022 and the case is pending
before the Mahila Court, Toothukudi. The learned Additional Public
Prosecutor further submitted that the case is posted for framing of charges
on 08.12.2022.
6. The main ground that was urged by the learned counsel for the
petitioner is that the detaining authority after noting that there was only an
attempt on the part of the detenu to file bail petition, relied upon a bail
order passed in Crl.O.P(MD)No.23893 of 2016 dated 23.12.2016 and came
to a conclusion that there is a likelihood of the detenu coming out on bail.
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.
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HCP(MD)No.1168 of 2022
8. We have carefully gone through the detention order as well as the
bail order passed in Crl.O.P(MD)No.23893 of 2016 dated 23.12.2016. In
the said case, this Court took into consideration the fact that the
investigation was completed and the final report was filed and it was
pending before the Magistrate. This Court also took into consideration the
period of incarceration that was suffered by the accused therein. In view of
the same, the order that was referred to by the detaining authority 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
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HCP(MD)No.1168 of 2022
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
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 H.S.(M)Confdl.No.98/2022 dated 18.05.2022 passed by the
second respondent is set aside. The detenu, viz., Sahayavinoth, son of
Krishnan @ Arockya Xavier, aged about 38 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
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1168 of 2022
To
1.The Additional Chief Secretary to Government,
State of Tamil Nadu,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The District Collector and District Magistrate,
Thoothukudi District,
Thoothukudi.
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.1168 of 2022
M. S. RAMESH,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.1168 of 2022
01.12.2022
https://www.mhc.tn.gov.in/judis
