Madras High Court
David @ David Johnson vs The Additional Chief Secretary To ... on 19 October, 2022
HCP(MD)No.1144 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.10.2022
CORAM
THE HON'BLE MRS JUSTICE J. NISHA BANU
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
H.C.P.(MD)No.1144 of 2022
David @ David Johnson ... Petitioner / Detenue
/Vs./
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George, Chennai-600 009.
2.The District Collector and Magistrate,
Nagapattinam,
Nagapatiinam District.
3.The Superintendent of Prison,
Central Prison,
Tiruchirappalli. ...Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, calling for the records pertaining to the
impugned detention order passed by the second respondent made in his
proceedings C.O.C.No.19/2022 dated 16.04.2022 in detaining the detenue
under Section 2(b) of the Tamil Act 14 of 1982 as a Bootlegger and quash
the same and direct the respondents to produce the detenue namely David @
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HCP(MD)No.1144 of 2022
David Johnson, S/o.Pandiyan, male aged about 27 years, who is detained in
Central Prison, Tiruchirappalli, before this Court and set him at liberty.
For Petitioner : Mr.A.Joseph Jerry
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., David @ David
Johnson, S/o.Pandiyan aged about 27 years. The detenu has been detained
by the second respondent by his order in Detention Order C.O.C.No.
19/2022 dated 16.04.2022 holding him to be a "Bootlegger", as
contemplated under Section 2(b) 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.1144 of 2022
3.Though several grounds have been raised in the Habeas Corpus
Petition, the learned counsel for the petitioner focussed his argument on the
ground that 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 satisfied
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.
6. Apart from the other grounds, the main ground that was urged by
the learned counsel appearing for the petitioner is that the detaining
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HCP(MD)No.1144 of 2022
authority, after taking note of the fact that the bail petition filed by the
petitioner was dismissed, came to the conclusion that there is likelihood of
the detenu being granted bail, on the ground that the detenu may file another
bail application before the appropriate Court or before the High Court and
obtain bail. The learned counsel submitted that this finding rendered by the
detaining authority was without any material and hence, the detention order
suffers from illegality.
7. The learned Additional Public Prosecutor strongly opposed this
Habeas Corpus Petition by filing his counter.
8. Insofar as the main ground that was urged by the learned counsel
for the petitioner, the detaining authority has taken note of the fact that the
bail application filed by the detenu was dismissed and there was no bail
application pending as on the date of passing of detention order. However,
the detaining authority has presumed that the detenu may file application in
future before the appropriate Court or before the higher Court and obtain
bail. The likelihood of the detenu coming out on bail must be based on
some materials and it cannot be made on mere presumption. In view of the
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HCP(MD)No.1144 of 2022
same, we find that the detention order suffers from non-application of mind.
The impugned detention order is therefore liable to be quashed.
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.O.C.No.19/2022, dated 16.04.2022, passed by the second
respondent is set aside. The detenu, viz., David @ David Johnson,
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HCP(MD)No.1144 of 2022
S/o.Pandiyan, aged about 27 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.)
19.10.2022
Index : Yes/No
Internet : Yes
ta
To:
1.The State of Tamil Nadu represented by its
Principal Secretary to Government,
Home, Prohibition and Excise (xiv) Department,
Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate,
Kanniyakumari District at Nagercoil,
Kanniyakumari District.
3.The Superintendent,
Central Prison,
Palayamkottai,
Tirunelveli.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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HCP(MD)No.1144 of 2022
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
ta
H.C.P.(MD)No.1144 of 2022
19.10.2022
https://www.mhc.tn.gov.in/judis
