Madras High Court
Panchavarnam vs The Additional Chief Secretary To ... on 18 November, 2022
H.C.P(MD)No.1658 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.11.2022
CORAM
THE HON'BLE MR.JUSTICE M.S.RAMESH
AND
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
H.C.P.(MD)No.1658 of 2022
Panchavarnam .. Petitioner / mother of the detenu
Vs
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2. The District Collector and District Magistrate,
Tiruchirappalli District,
Tiruchirappalli.
3. The Superintendent of Prison,
Central Prison,
Tiruchirappalli. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, calling for the entire records relating to the
detention order passed by the second Respondent in Cr.M.P.No.6/2022
dated 27.01.2022 and to quash the same and direct the Respondents to
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H.C.P(MD)No.1658 of 2022
produce the body or person of the detenu by name, Murugan, son of
Chinnakkalai, aged about 35 years, detained as “Sexual Offender” under
Section 2(ggg) of the Tamil Nadu Act 14 of 1982, now confined at Central
Prison, Tiruchirappalli, before this Court and set him at liberty.
For Petitioner : Mr.A.Joseph Jerry
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
N. ANAND VENKATESH, J.
The petitioner is the mother of the detenu viz., Murugan, son of
Chinnakkalai, aged about 35 years. The detenu has been detained by the
second respondent by his order in Cr.M.P.No.6/2022 dated 27.01.2022
holding her to be a "Sexual Offender", as contemplated under Section
2(ggg) of Tamil Nadu Act 14 of 1982. The said order is under challenge in
this Habeas Corpus Petition.
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
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H.C.P(MD)No.1658 of 2022
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 24.12.2021 and the investigation
was completed and final report was filed on 16.02.2022 before the Mahila
Court, Trichy. The same has been taken on file in Spl.S.C.No.49/2022. It
was further submitted that the case is now at the stage of examination of
witnesses.
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H.C.P(MD)No.1658 of 2022
6. The main ground that was urged by the learned counsel for the
petitioner is that the detaining authority, after being aware of the fact that
no bail petition was filed by the detenu, relied upon the order passed in
Cr.M.P.No.76/2018 dated 15.02.2018 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 and in
the bail order, it is seen that bail was granted by considering the medical
condition of the accused therein. 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.76/2018 dated 15.02.2018. The detaining
authority was aware of the fact that the detenu had not filed any bail petition
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H.C.P(MD)No.1658 of 2022
as on date when the detention order was passed. However, the detaining
authority took into consideration the order passed in Cr.M.P.No.76/2018
dated 15.02.2018, to come to a conclusion that there is a real possibility of
the detenu coming out on bail. On carefully going through the order passed
in Cr.M.P.No.76/2018 dated 15.02.2018, it is seen that the bail was granted
to the accused therein on medical grounds. This clearly shows that the
facts of the present case cannot be considered to be a similar case. In view
of the same, 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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H.C.P(MD)No.1658 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 Cr.M.P.No.6/2022 dated 27.01.2022 passed by the second
respondent is set aside. The detenu, viz., Murugan, son of Chinnakkalai,
aged about 35 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.]
18.11.2022
Index : Yes/No
Internet : Yes
PJL
To
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
https://www.mhc.tn.gov.in/judis
H.C.P(MD)No.1658 of 2022
Chennai-600 009.
2. The District Collector and District Magistrate,
Tiruchirappalli District,
Tiruchirappalli.
3. The Superintendent of Prison,
Central Prison,
Tiruchirappalli.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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H.C.P(MD)No.1658 of 2022
M.S.RAMESH,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.1658 of 2022
18.11.2022
https://www.mhc.tn.gov.in/judis
