Madras High Court
Meharbanu vs The Additional Chief Secretary To ... on 14 October, 2022
H.C.P(MD)No.1480 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.10.2022
CORAM
THE HON'BLE Mrs.JUSTICE J.NISHA BANU
AND
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
H.C.P(MD)No.1480 of 2022
Meharbanu ...Petitioner/
Wife of the detenue
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: This Habeas Corpus Petition is filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Habeas Corpus,
calling for the records pertaining to the impugned detention order passed
by the second respondent made in his proceedings in Cr.M.P.No.17/2022
dated 28.02.2022 in detaining the detenue under Section 2(f) of the Tamil
Nadu act 14 of 1982 as a Goonda and quash the same and direct the
respondents to produce the detenue namely, Sheik Abdulla son of Sheik
Ravuthar aged about 48 years, who is detained at Central Prison, Trichy
before this Court and set him at liberty.
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H.C.P(MD)No.1480 of 2022
For Petitioner : Mr.K.Arunraj
For Respondents : Mr.A.Thiruvadikumar
Addl. Public Prosecutor
ORDER
J.NISHA BANU, J.
AND
N.ANAND VENKATESH, J.
The present Habeas Corpus Petition is directed against the
Detention Order passed by second respondent in Detention Order in
Cr.M.P.No.17/2022 dated 28.02.2022.
2.The Sponsoring Authority had recommended for the
detention of the detenu under Act 14 of 1982 on a solitary case registered
against the detenu and the detenu was thereafter arrested in the said case.
The Detaining Authority has branded the detenu as a ''Goonda'' and has
passed the Detention order, dated 28.02.2022.
3.The learned counsel for the Petitioner submitted that there is
total non application of mind on the part of the detaining authority in
taking into consideration the bail order passed in Crl.M.P.No.1299/2012
dated 08.11.2012, which cannot be considered to be a similar case.
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H.C.P(MD)No.1480 of 2022
4.In support of his contention, the learned counsel for the
Petitioner relied upon the case of Rekha .vs. State of Tamil Nadu,
through Secretary to Government and another reported in (2011) 5
SCC 244, wherein, it has been held as follows:
12. In Rekha v. State of Tamil Nadu through Secretary to
Govt. & Anr., (2011) 5 SCC 244, this Court while
dealing with the issue held :
“7.A perusal of the above statement
in Para 4 of the grounds of detention shows
that no details have been given about the
alleged similar cases in which bail was
allegedly granted by the court concerned.
Neither the date of the alleged bail orders has
been mentioned therein, nor the bail
application number, nor whether the bail
orders were passed in respect of the co-
accused on the same case, nor whether the
bail orders were passed in respect of other co-
accused in cases on the same footing as the
case of the accused……
10.In our opinion, if details are
given by the respondent authority about the
alleged bail orders in similar cases
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H.C.P(MD)No.1480 of 2022
mentioning the date of the orders, the bail
application number, whether the bail order
was passed in respect of the co-accused in the
same case, and whether the case of the co-
accused was on the same footing as the case
of the petitioner, then, of course, it could be
argued that there is likelihood of the accused
being released on bail, because it is the
normal practice of most courts that if a co-
accused has been granted bail and his case is
on the same footing as that of the petitioner,
then the petitioner is ordinarily granted
bail……. A mere ipse dixit statement in the
grounds of detention cannot sustain the
detention order and has to be ignored.
27.In our opinion, there is a real
possibility of release of a person on bail who
is already in custody provided he has moved a
bail application which is pending. It follows
logically that if no bail application is pending,
then there is no likelihood of the person in
custody being released on bail, and hence the
detention order will be illegal. However, there
can be an exception to this rule, that is, where
a co-accused whose case stands on the same
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H.C.P(MD)No.1480 of 2022
footing had been granted bail. In such cases,
the detaining authority can reasonably
conclude that there is likelihood of the detenu
being released on bail even though no bail
application of his is pending, since most
courts normally grant bail on this
ground.” (Emphasis added)
Thus, it is evident from the aforesaid judgment that it is
not the similar case, i.e. involving similar offence. It
should be that the co-accused in the same offence is
enlarged on bail and on the basis of which the detenu
could be enlarged on bail.
13. So far as the appellant’s son is concerned,
he had been arrested for the offence related to FIR No.
53 (6) 2011 under Section 302 IPC read with Section
25(1-A) Arms Act dated 14.6.2011. The FIR had been
lodged against unknown persons, however, appellant’s
son was arrested on 19.6.2011 in respect of the said
offence. Subsequently, the detention order dated
30.6.2011 was passed by the District Magistrate under
N.S. Act on various grounds, inter-alia, that the
appellant’s son was involved in extorting of money and
giving shelter to underground members of unlawful
association, namely, Kangleipak Communist Party vide
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H.C.P(MD)No.1480 of 2022
notification published in the Gazette of India on
13.11.2009 as his activities were pre-judicial to the
security of the State and maintenance of public order.
14.In support of the detention order, a large
number of documents had been relied upon and supplied
to the appellant’s son including the copy of FIR No.254
(12) 2010 under Section 17/20 of the Unlawful Activities
(Prevention) Act, 1967 (hereinafter called UA (P) Act)
and copy of FIR No. 210 (5) 2011 under Section 20 of
the UA (P) Act and released orders in those cases dated
13.12.2010 and 1.6.2011 respectively had been passed.
15. In the instant case, admittedly, the said
bail orders do not relate to the co-accused in the same
case. The accused released in those cases on bail had no
concern with the present case. Merely, because
somebody else in similar cases had been granted bail,
there could be no presumption that in the instant case
had the detenu applied for bail could have been released
on bail. Thus, as the detenu in the instant case has not
moved the bail application and no other co- accused, if
any, had been enlarged on bail, resorting to the
provisions of Act was not permissible. Therefore, the
impugned order of detention is based on mere ipse dixit
statement in the grounds of detention and cannot be
sustained in the eyes of law.
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H.C.P(MD)No.1480 of 2022
5.Heard the learned Additional Public Prosecutor appearing on
behalf of the respondents.
6.We have carefully gone through the Detention Order. The
detaining authority has specifically stated in the detention order that the
detenu has not filed any bail application. However, the detaining
authority has taken into consideration the bail order that has been granted
in Crl.M.P.No.1299 of 2012 dated 08.11.2012 and this was taken to be a
similar case as that of the detenu. Accordingly, the detaining authority
has come to the conclusion that there is a likelihood of the detenu being
granted bail. On carefully going through the order passed in Cr.M.P.No.
1299 of 2012 dated 08.11.2012, it is seen that the accused therein was
only a co-accused arrayed as A4 and in that case, already four years had
lapsed from the date of offence and substantial part of the investigation
was also over. Considering the same bail was granted. This case cannot
be taken to be a similar case by the detaining authority and it clearly
reflects non application of mind on the part of the detaining authority.
Consequently, the Detention Order stands vitiated.
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H.C.P(MD)No.1480 of 2022
7.In the result, the Habeas Corpus Petition is allowed and the
order of detention in Cr.M.P.No.17/2022 dated 28.02.2022 passed by the
second respondent is set aside. The detenu, namely, Sheik Abdullah,
son of Sheik Ravuthar, aged about 48 years, is directed to be released
forthwith, unless his detention is not required in connection with any
other case.
[J.N.B,J.] & [N.A.V.,J.]
14.10.2022
Index :Yes/No
Internet :Yes
ta/Ns
To
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.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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H.C.P(MD)No.1480 of 2022
J.NISHA BANU, J.
AND
N.ANAND VENKATESH, J.
ta/Ns
ORDER MADE IN
H.C.P(MD)No.1480 of 2022
14.10.2022
https://www.mhc.tn.gov.in/judis
