Madras High Court
Jayamani vs The State Of Tamil Nadu on 18 November, 2022
H.C.P(MD)No.1139 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.1139 of 2022
Jayamani .. Petitioner /mother of the
detenu
Vs
1. The State of Tamil Nadu,
Rep. by the Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai-600 009.
2. The District Magistrate and District Collector,
Theni District,
Theni.
3. The Superintendent of Prison,
Central Prison,
Madurai.
4. The Inspector of Police,
Odaipatti Police Station,
Theni District. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
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H.C.P(MD)No.1139 of 2022
issue a Writ of Habeas Corpus, calling for the entire records relating to the
detention order passed by the second Respondent in Detention Order No.
35/2022 dated 23.04.2022 and to quash the same and direct the Respondents
to produce the body or person of the detenu by name, Arunpandi, son of
Mokkathurai, aged about 26 years, now detained at the Central Prison,
Madurai, before this Court and set him at liberty.
For Petitioner : Mr.S.Mahendrapathy
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
N. ANAND VENKATESH, J.
The petitioner is the mother of the detenu viz., Arunpandi, son of
Mokkathurai, aged about 26 years. The detenu has been detained by the
second respondent by his order in Detention Order No.35/2022 dated
23.04.2022 holding him to be a “Drug Offender”, as contemplated under
Section 2(e) of Tamil Nadu Act 14 of 1982. The said order is under
challenge in this Habeas Corpus Petition.
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H.C.P(MD)No.1139 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 22.03.2022 and the investigation
was completed and final report was filed on 15.09.2022 within time before
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H.C.P(MD)No.1139 of 2022
the NDPS Court, Madurai. He further submitted that the final report is yet
to be taken on file.
6. The main ground that was urged by the learned counsel for the
petitioner is that the detaining authority after taking into consideration the
remand of the detenu in the ground case, came to a conclusion that there is a
possibility of the detenu being let out on bail and this satisfaction was
arrived at by the detaining authority without any material. 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. The detaining
authority has merely stated in the detention order that in similar cases, bail
is granted by the competent Court, after lapse of time and therefore there is
a likelihood of the detenu being granted bail. This conclusion was arrived at
by the detaining authority without any material. That apart, this is a case
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H.C.P(MD)No.1139 of 2022
involving 84 kgs of Ganja which is a commercial quantity. Hence, even
when a bail petition is considered in this case, there are stringent conditions
provided under Section 37 of the Narcotic Drugs and Psychotropic
Substances Act, before bail can be granted. Therefore, the detaining
authority has mechanically passed an order as if bail is granted in cases
involving commercial quantity in a routine fashion. This clearly reflects the
non application of mind on the part of the detaining authority while arriving
at the subjective satisfaction with regard to the likelihood of the detenu
coming out on bail.
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
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H.C.P(MD)No.1139 of 2022
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 Detention Order No.35/2022 dated 23.04.2022 passed by
the second respondent is set aside. The detenu, viz., Arunpandi, son of
Mokkathurai, aged about 26 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 State of Tamil Nadu,
Rep. by the Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai-600 009.
2. The District Magistrate and District Collector,
Theni District,
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H.C.P(MD)No.1139 of 2022
Theni.
3. The Superintendent of Prison,
Central Prison,
Madurai.
4. The Inspector of Police,
Odaipatti Police Station,
Theni District.
5. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
H.C.P(MD)No.1139 of 2022
M.S.RAMESH,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.1139 of 2022
18.11.2022
https://www.mhc.tn.gov.in/judis
