Madras High Court
Esakkiammal vs The Additional Chief Secretary To ... on 14 October, 2022
HCP(MD)No.764 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.764 of 2022
Esakkiammal .. Petitioner/mother of the
detenu
Vs
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai - 600009
2. The Commissioner of Police,
Tirunelveli City,
Tirunelveli District
3. The Superintendent,
Central Prison,
Palayamkottai
Tirunelvlei District
4. The Inspector of Police,
Thatchanallur Police Station,
Tirunelveli District .. Respondents
Page 1 of 8
https://www.mhc.tn.gov.in/judis
HCP(MD)No.764 of 2022
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, calling for the entire records passed in
detention order No.21/BCDFGISSV/2022, dated 03.03.2022, on the file of
the second respondent herein and set aside the same as illegal and direct the
respondents to produce the body of person of the petitioner's son namely,
Sankar, S/o.Karuppasamy, aged 35 years, now detained at Central Prison,
Palayamkottai, before this Court and set him at liberty.
For Petitioner : Mr.T.Selvakumaran
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
The petitioner is the mother of the detenu viz., Sankar,
S/o.Karuppasamy, aged 35 years. The detenu has been detained by the
second respondent by his order in No.21/BCDFGISSV/2022, dated
03.03.2022, holding him to be a "Goonda", as contemplated under Section
2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this
Habeas Corpus Petition.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.764 of 2022
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.
3. Though the learned counsel for the petitioner has raised several
other grounds to assail the order of detention, he has mainly focused his
argument on the ground that the detaining authority after recording the fact
that the bail application filed by the detenu was pending before the
concerned Court, came to a conclusion that there is likelihood of the detenu
being granted bail on the ground that in an earlier case, the same detenu was
granted bail by this Court in Crl.O.P(MD)No.14281/2019 dated 04.10.2019.
The learned counsel further submitted that the bail order that was relied
upon by the detaining authority pertained to a case where there was no
previous case against the detenue whereas the present case, there are
previous cases and hence, the order that was relied upon by the detaining
authority cannot be considered to be a similar case.
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
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HCP(MD)No.764 of 2022
244) to substantiate his submission.
6. The main ground that was urged by the learned counsel for the
petitioner is that the bail application filed before the Court below was
pending. However, the detaining authority took into consideration the bail
that was granted in the earlier case Crl.O.P.(MD)No.14281 of 2019 dated
04.10.2019 by this Court. 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. On carefully going through the bail order passed in Crl.O.P.
(MD)No.14281/2019 dated 04.10.2019, we find that this Court has granted
bail by considering the fact that there was no previous case against the
https://www.mhc.tn.gov.in/judis
HCP(MD)No.764 of 2022
detenu was pending at that point of time. In view of the same, this order
relied upon by the detaining authority cannot be considered to be a similar
case like the case on hand. It is therefore clear that there is total 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
order of detention is liable to be interfered with.
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HCP(MD)No.764 of 2022
11. In the result, the Habeas Corpus Petition is allowed and the order
of detention in No.21/BCDFGISSV/2022, dated 03.03.2022 passed by the
second respondent is set aside. The detenu, viz. Sankar, S/o.Karuppasamy,
aged 35 years, is directed to be released forthwith unless his detention is
required in connection with any other case.
[J.N.B.,J.] [N.A.V.,J.]
14.10.2022
Index : Yes/No
Internet : Yes
PJL
To
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department, Secretariat,
Chennai - 600009
2. The Commissioner of Police,
Tirunelveli City,
Tirunelveli District
3. The Superintendent,
Central Prison,
Palayamkottai
Tirunelvlei District.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.764 of 2022
4. The Inspector of Police,
Thatchanallur Police Station,
Tirunelveli District
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.764 of 2022
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.764 of 2022
14.10.2022
https://www.mhc.tn.gov.in/judis
