V.Marri vs Government Of Tamil Nadu
2022 Latest Caselaw 17743 Mad

                                                                                H.C.P(MD)No.1791 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.1791 of 2022

                     V.Marri                              .. Petitioner / wife of the detenu

                                                     Vs

                     1. Government of Tamil Nadu,
                        Rep. by the Principal Secretary to Government,
                        Home, Prohibition and Excise Department,
                        Fort St. George,
                        Chennai-600 009.

                     2. The District Collector and District Magistrate,
                        Tenkasi District,
                        Tenkasi.

                     3. The Superintendent,
                        Central Prison,
                        Palayamkottai,
                        Tirunelveli.                                             .. 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 M.H.S.Confdl.No.


                     Page 1 of 8



https://www.mhc.tn.gov.in/judis
                                                                                H.C.P(MD)No.1791 of 2022

                     45/2022 dated 07.04.2022 and to quash the same and direct the Respondents

                     to produce the body or person of the detenu by name, Veerasamy, son of

                     Appavu, aged about 49 years, now detained at the Central                  Prison,

                     Palayamkottai, before this Court and set him at liberty.

                                       For Petitioner    : Mr.K.Dinesh
                                       For Respondents : Mr.A.Thiruvadi Kumar
                                                          Additional Public Prosecutor

                                                           ORDER

N. ANAND VENKATESH, J.

The petitioner is the wife of the detenu viz., Veerasamy, son of

Appavu, aged about 49 years. The detenu has been detained by the second

respondent by his order in M.H.S.Confdl.No.45/2022 dated 07.04.2022

holding him 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

https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 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 24.03.2022. Thereafter, the

investigation was completed and final report was filed on 22.04.2022 and

the case is now pending in Spl.C.C.No.43/2022 on the file of the Special

Court for POCSO Act cases, Tirunelveli. It was further submitted that

already LW1 to LW15 were examined. The case is now posted on

https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022

23.11.2022 for the examination of LW16 to LW22.

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

bail petition that was filed by the detenu was dismissed, 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.762/2021 dated 27.05.2021.

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 since bail was granted in that case under Section 167(2)

Cr.P.C. 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

https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022

bail order passed in Cr.M.P.No.762/2021 dated 27.05.2021. It is seen that in

that case the accused therein was granted statutory bail on the ground that

final report was not filed within the time stipulated and hence, the Court

exercised its power under Section 167(2) Cr.P.C. 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

https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022

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 M.H.S.Confdl.No.45/2022 dated 07.04.2022 passed by the

second respondent is set aside. The detenu, viz., Veerasamy, son of Appavu,

aged about 49 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. Government of Tamil Nadu,

Rep. by the Principal Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009.

2. The District Collector and District Magistrate, Tenkasi District, Tenkasi.

https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022

3. The Superintendent, Central Prison, Palayamkottai, Tirunelveli.

4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022

M.S.RAMESH,J.

and N. ANAND VENKATESH,J.

PJL

H.C.P.(MD)No.1791 of 2022

18.11.2022

https://www.mhc.tn.gov.in/judis