Madras High Court
Kaluvayee vs The Principal Secretary To ... on 28 October, 2022
HCP(MD)No.903 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.10.2022
CORAM
THE HON'BLE MRS JUSTICE J. NISHA BANU
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
H.C.P.(MD)No.903 of 2022
Kaluvayee .. Petitioner/mother of the
Detenu
Vs
1. The Principal Secretary to Government,
State of Tamil Nadu ,
Home, Prohibition and Excise Department,
Fort. St. George,
Chennai-600 009.
2. The Commissioner of Police,
Office of the Commissioner of Police,
Madurai City, Madurai.
3. The Superintendent of Prison,
Madurai Central Prison,
Madurai District. ..Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, calling for the entire records relating to the
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HCP(MD)No.903 of 2022
detention order passed by the 2nd Respondent in No.13/BCDFGISSSV/2022
dated 27.04.2022 and quash the same and direct the respondents to produce
the body or person of the detenu by name, Sadaiyandi, S/o.Andi Thevar,
aged 43 years, now confined in Central Prison, Madurai, before this Court
and set him at liberty.
For Petitioner : Mr.R.Alagumani
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., Sadaiyandi, S/o.Andi
Thevar, aged 43 years. The detenu has been detained by the second
respondent by his order in No.13/BCDFGISSSV/2022 dated 27.04.2022
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.
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HCP(MD)No.903 of 2022
2. 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.
3.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.
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
244) to substantiate his submission.
5. The main ground that was urged by the learned counsel for the
petitioner is that the detaining authority, after taking note of the fact that
there was no bail petition filed by the detenu is pending before the
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HCP(MD)No.903 of 2022
competent Court, as on the date of passing the detention order, relied upon
the order passed in Cr.M.P.No.4721/2018 dated 12.10.2018 and came to a
conclusion that there is a likelihood of the detenu being granted bail.
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.
6. 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.
7. We have carefully gone through the detention order as well as the
bail order passed in Cr.M.P.No.4721/2018 dated 12.10.2018. There is no
material placed before this Court that as to how the detaining authority came
to a conclusion that efforts are being taken to file a bail petition. That apart,
the bail order relied upon by the detaining authority passed in Cr.M.P.Nos.
4721 & 4679/2018 dated 12.10.2018 wherein bail was granted to the
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HCP(MD)No.903 of 2022
accused therein on the ground that charge sheet has already been laid and
the accused had suffered incarceration for nearly 127 days and the co-
accused have been enlarged on bail. The facts of that case cannot be treated
to be a similar case since in the present case, the detenue did not file any
bail petition. In view of the same, we find that the subjective satisfaction
arrived at by the detaining authority with regard to the likelihood of the
detenu coming out on bail suffers from non-application of mind on the part
of the detaining authority.
8.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.
9.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
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HCP(MD)No.903 of 2022
application of mind on the part of the detaining authority. Therefore, the
order of detention is liable to be interfered with.
10. In the result, the Habeas Corpus Petition is allowed and the order
of detention in No.13/BCDFGISSSV/2022 dated 27.04.2022 passed by the
second respondent is set aside. The detenu, viz., Sadaiyandi, S/o.Andi
Thevar, aged 43 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.)
28.10.2022
Index : Yes/No
Internet : Yes
PJL
To
1. The Principal Secretary to Government,
State of Tamil Nadu ,
Home, Prohibition and Excise Department,
Fort. St. George,
Chennai-600 009.
2. The Commissioner of Police,
Office of the Commissioner of Police,
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HCP(MD)No.903 of 2022
Madurai City, Madurai.
3. The Superintendent of Prison,
Madurai Central Prison,
Madurai District.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.903 of 2022
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.903 of 2022
28.10.2022
https://www.mhc.tn.gov.in/judis
