Madras High Court
Jenova Mary vs The Secretary To Government on 14 October, 2022
HCP(MD)No.654 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.654 of 2022
Jenova Mary ...Petitioner/wife of the detenu
Vs.
1. The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600009
2. The Commissioner of Police,
Tiruchirapalli City,
Tiruchirapalli.
3. The Superintendent of Prison,
Central Prison,
Tiruchirapalli. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, calling for the entire records pertaining to
the impugned detention order passed by the second respondent made in his
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HCP(MD)No.654 of 2022
proceedings in C.No.43/Detention/C.P.O/T.C/2022 dated 05.04.2022 in
detaining the detenu under Section 2(g) of Tamil Nadu Act 14 of 1982 as a
'Immoral Traffic Offender' and quash the same and direct the respondents to
produce the Detenu namely, Vilbird Marsaleeno, S/o.Anthoni Doss, male,
aged about 40 years, who is detained at Central Prison, Tiruchirapalli,
before this Court and set him at liberty.
For Petitioner : Mr.J.Sulthan Basha
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., Vilbird Marsaleeno,
S/o.Anthoni Doss, aged about 40 years. The detenu has been detained by
the second respondent by his order in C.No.43/Detention/C.P.O/T.C/2022
dated 05.04.2022 holding him to be a "Immoral Traffic Offender", as
contemplated under Section 2(g) of Tamil Nadu Act 14 of 1982. The said
order is under challenge in this Habeas Corpus Petition.
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HCP(MD)No.654 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 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
fact that the accused, who are similarly placed, have been granted bail by
the competent Court.
4.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.
5.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.
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HCP(MD)No.654 of 2022
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
dismissed and no bail application was pending as on the date, when
detention order was passed. However, the detaining authority took into
consideration the bail that was granted to one Sridhar, in Crl.O.P.No.1878
of 2021 dated 09.02.2021 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.No.
1878 of 2021 dated 09.02.2021, we find that this Court has granted bail by
considering the fact that the co-accused was granted bail. In view of the
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HCP(MD)No.654 of 2022
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.
11. In the result, the Habeas Corpus Petition is allowed and the order
of detention in C.No.43/Detention/C.P.O/T.C/2022 dated 05.04.2022
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HCP(MD)No.654 of 2022
passed by the second respondent is set aside. The detenu, viz. Vilbird
Marsaleeno, S/o.Anthoni Doss, aged about 40 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 Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600009
2. The Commissioner of Police,
Tiruchirapalli City, Tiruchirapalli.
3. The Superintendent of Prison,
Central Prison, Tiruchirapalli.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.654 of 2022
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.654 of 2022
14.10.2022
https://www.mhc.tn.gov.in/judis
