Madras High Court
S.Ayyappan vs State Of Tamil Nadu on 18 November, 2022
H.C.P(MD)No.1010 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.1010 of 2022
S.Ayyappan .. Petitioner / Father of the detenu
Vs
1. State of Tamil Nadu,
Rep. by the Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2. The District Collector and District Magistrate,
Kanniyakumari District,
Nagercoil.
3. The Superintendent of Prison,
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 P.D.No.19/2022 dated
Page 1 of 8
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H.C.P(MD)No.1010 of 2022
07.04.2022 and to quash the same and direct the Respondents to produce the
body or person of the detenu by name, Sukumaran @ Sullan, son of
Ayyappan, aged about 27 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 father of the detenu viz., Sukumaran @ Sullan,
son of Ayyappan, aged about 27 years. The detenu has been detained by the
second respondent by his order in P.D.No.19/2022 dated 07.04.2022
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.
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.1010 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 16.02.2022. Thereafter the
investigation was completed and final report was filed on 16.06.2022 on
time before the NDPS Court, Madurai and the same has been taken on file
in C.C.No.332/2022. It was further submitted that the case is now posted
for the appearance of the accused persons on 07.12.2022.
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H.C.P(MD)No.1010 of 2022
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 no
bail petition was filed by the detenu, came to a conclusion that there is a
likelihood of the detenu coming out on bail by relying upon the bail order
passed in Crl.M.P.No.5126/2019 dated 31.12.2019. 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 Crl.M.P.No.5126/2019 dated 31.12.2019. It is seen that
in that case the quantity involved is 1.250 kgs of Ganja and in the present
case, the quantity involved is 21 kgs of Ganja, which is a commercial
quantity. Hence, even when a bail petition is considered in this case, there
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H.C.P(MD)No.1010 of 2022
are stringent conditions provided under Section 37 of the Narcotic Drugs and
Psychotropic Substances Act, before bail can be granted. The bail order that
was taken into consideration by the detaining authority was pertained to an
in-between quantity and the same can never be taken as 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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H.C.P(MD)No.1010 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 P.D.No.19/2022 dated 07.04.2022 passed by the second
respondent is set aside. The detenu, viz., Sukumaran @ Sullan, son of
Ayyappan, aged about 27 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 Secretary to Government,
State of Tamil Nadu,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2. The District Collector and District Magistrate,
Kanniyakumari District,
Nagercoil.
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H.C.P(MD)No.1010 of 2022
3. The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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H.C.P(MD)No.1010 of 2022
M.S.RAMESH,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.1010 of 2022
18.11.2022
https://www.mhc.tn.gov.in/judis
