Madras High Court
Muthumari vs The State Rep. By on 28 November, 2022
HCP(MD)No.926 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.11.2022
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
H.C.P.(MD)No.929 of 2022
Muthumari .. Petitioner / mother of
the detenu
Vs.
1.The State rep. by
Additional Chief Secretary to Government
Home Prohibition and Excise Department,
Secretariat Chennai-600 009.
2.The District Collector and District Magistrate
Mayiladuthurai District
Mayiladuthurai.
3.The Superintendent of Prison,
Central Prison Trichy
4.The Inspector of Police,
Mayiladuthurai Railway Police Station,
Mayiladuthurai. .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus to call for the records relating to the impugned order
of detention made in COC No.09/2022 dated 28.04.2022 on the file of the
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HCP(MD)No.926 of 2022
District Collector and District Magistrate, Mayiladuthurai District, the 2nd
respondent herein, branding her daughter/detenue by name Sathya, wife of
Sivakumar, aged 20 years as Drug Offender who is now confined in Central
Prison, Tiruchirappalli, Tiruchirappalli District and quash the impugned
order of detention and set him at liberty by producing him before this Court.
For Petitioner : Mr.T.J.Ebenezer Charles
For Respondents : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by N. ANAND VENKATESH,J.)
The petitioner is the mother of the detenu viz., Sathya aged about 20
years, W/o.Sivakumar. The detenu has been detained by the second
respondent by his order in COC No.09/2022 dated 28.04.2022 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. We have heard the learned counsel appearing for the petitioner and
the learned Additional Public Prosecutor appearing for the respondents. We
have also perused the records produced by the Detaining Authority.
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HCP(MD)No.926 of 2022
3. Though several grounds have been raised in the Habeas Corpus
Petition, the learned counsel appearing for the petitioner mainly contended
that detention order was passed on the basis of a solitary case and the bail
order that was relied upon by the detaining authority was not even furnished
to the detenue in the paper book. It is further submitted that the detaining
authority was swayed by the fact that the detenu is attempting to file a bail
petition and hence, it is submitted by the learned counsel for the petitioner
that the subjective satisfaction that has been arrived at by the detaining
authority at Paragraph No.6 of the order is not supported by any materials.
Therefore, the same also suffers from non application of mind.
4. The learned counsel for the petitioner, in order to substantiate the
submissions, relied upon the judgment of the Full Bench reported in 2005
(2) LW 946 [K.Thirupathi v. District Magistrate and District Collector,
Tiruchirappalli District & another].
5. The learned Additional Public Prosecutor strongly opposed the
Habeas Corpus Petition by filing his counter.
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HCP(MD)No.926 of 2022
6. The detaining authority has considered the fact that the mother of
the detenu is attempting to file a bail petition before the competent Court.
Therefore, the detaining authority came to the conclusion that there is an
imminent possibility of the detenu coming out on bail.
7. The satisfaction that has been arrived at by the detaining authority
is merely on surmises and it is not based on any materials that has been
placed before the detaining authority. At this point of time, it will be
relevant to take note of the Full Bench judgment, which has been referred
supra.
8. The relevant portions are extracted hereunder:
“24. The detaining authority is required to follow
strictly and scrupulously the forms and rules of law
prescribed in that behalf or by the statutory provision under
which the order of detention is being made after arriving at a
subjective satisfaction. In the event of any deviation or
violation of the statutory provisions or infraction of
constitutional guarantees, the Courts will not hesitate to
quash the orders of detention. Whatever be the jurisdiction to
detain and the slightest infraction of the constitutional
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HCP(MD)No.926 of 2022
guarantee would lead to the detenu being set at liberty.
25. It is by now well settled that in all detention laws,
the orders of detention and its continuance of detention
should be in conformity with Article 22 of the Constitution
of India and slightest infraction of the Constitutional
protection enshrined therein would be a valid ground to set
the detenu at liberty.
26. There must be cogent material before the Authority
passing the detention order for inferring that the detenu was
likely to be released on bail. This inference must be drawn
from material on record and must not be the ipse dixit of the
Authority passing the detention order.
27. In the case of a person in custody a detention order
can validly be passed if the authority passing the order is
aware of the fact that he is actually in custody; if he has
reason to believe on the basis of reliable material placed
before him--
(a) that there is a real possibility of his being released on
bail, and
(b) if it is felt essential to detain him to prevent him from so
doing. If the authority passes an order after recording its
satisfaction in this behalf, such an order cannot be struck
down on the ground that the proper course for the authority
was to oppose the bail and if bail is granted notwithstanding
such opposition to question it before a higher Court.
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HCP(MD)No.926 of 2022
28. It is neither possible nor advisable catalogue the
types of materials which can form the basis of a detention
order under the Act. That will depend on the facts and
situation of a case. That is why there is no provision in the
Act in that regard and the matter is left to the discretion of
the detaining authority. However, the facts stated in the
materials relied upon should be true and should have a
reasonable nexus with the purpose for which the order is
passed.”
9. It is clear from the above that the detention order was passed on the
basis of a solitary case and the bail order that was relied upon by the
detaining authority was not even furnished to the detenue in the paper book.
It is also seen that detenu is in custody and she has not filed any bail petition
and there are no materials to show that she is taking steps to file a bail
petition by herself or through his relatives or it was based merely on the
presumption made by the detaining authority, the same reflects non
application of mind on the part of the detaining authority.
10. In view of the above, the detention order suffers from non
application of mind and the same is liable to be interfered with by this
Court. The impugned detention order is, therefore, liable to be quashed.
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HCP(MD)No.926 of 2022
11. In the result, the Habeas Corpus Petition is allowed and the order
of detention in COC No.09/2022 dated 28.04.2022 passed by the second
respondent is set aside. The detenu, viz., Sathya W/o.Sivakumar, aged about
20 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.)
28.11.2022
Internet : Yes
RR
To
1.The Additional Chief Secretary to Government
Home Prohibition and Excise Department,
Secretariat Chennai-600 009.
2.The District Collector and District Magistrate
Mayiladuthurai District
Mayiladuthurai.
3.The Superintendent of Prison,
Central Prison Trichy
4.The Inspector of Police,
Mayiladuthurai Railway Police Station,
Mayiladuthurai.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.926 of 2022
M.S.RAMESH, J.
and
N. ANAND VENKATESH,J.
RR
H.C.P.(MD)No.929 of 2022
28.11.2022
https://www.mhc.tn.gov.in/judis
