Madras High Court
Bhuvaneswari vs The Additional Chief Secretary To ... on 28 October, 2022
HCP(MD)No.718 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.718 of 2022
Bhuvaneswari .. Petitioner/wife of the
Detenu
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: 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
detention order passed by the 2nd Respondent in Cr.M.P.No.27/2022 dated
Page 1 of 11
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HCP(MD)No.718 of 2022
25.04.2022 and quash the same and direct the respondents to produce the
body or person of the detenu by name, Palanikumar, S/o. Palraj, aged about
36 years, now detained as “Goonda” under Section 2(f) of the Tamilnadu
Act 14, 1982 in Central Prison, Trichy, before this Court and set him at
liberty.
For Petitioner : Mr.K.M.Karunakaran
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
The petitioner is the wife of the detenu viz., Palanikumar, S/o. Palraj,
aged about 36 years. The detenu has been detained by the second
respondent by his order in Cr.M.P.No.27/2022 dated 25.04.2022 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.718 of 2022
2. We have heard the learned counsel appearing for the petitioner and
the learned Additional Public Prosecutor appearing for the respondents.
3. Though several grounds have been raised in the Habeas Corpus
Petition, the learned counsel appearing for the petitioner would mainly
focus his argument on the following grounds:
(i) there is gross violation of procedural safeguards, which would
vitiate the detention. The learned counsel, by placing authorities, submitted
that the representation made by the petitioner was not considered on time
and there was an inordinate and unexplained delay, and
(ii) the detaining authority after taking note of the fact that the bail
petition filed by the detenu was pending before the High Court, taking into
consideration the order passed by this Court in Crl.O.P.No.15807/2021
dated 12.10.2021 and came to a conclusion that it is a similar case and
hence, it is submitted by the learned counsel for the petitioner that the
subjective satisfaction that has been arrived at by the detaining authority is
not supported by any materials. Therefore, the same also suffers from non
application of mind.
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HCP(MD)No.718 of 2022
4. The learned counsel for the petitioner, in order to substantiate the
submissions, relied upon the judgment of the Full Bench reported in 2005
(2) LW 946 [K.Thirupathi v. District Magistrate and District Collector,
Tiruchirappalli District & another].
5. The learned Additional Public Prosecutor strongly opposed the
Habeas Corpus Petition by filing his counter. He would submit that though
there was delay in considering the representation, on that score alone, the
impugned detention order cannot be quashed. According to the learned
Additional Public Prosecutor, no prejudice has been caused to the detenu
and thus, there is no violation of the fundamental rights guaranteed under
Articles 21 and 22 of the Constitution of India.
6. The Detention Order in question was passed on 25.04.2022. The
petitioner made a representation dated 04.05.2022. Thereafter, remarks were
called for by the Government from the Detaining Authority on 09.05.2022.
The remarks were duly received on 16.05.2022. Thereafter, the Government
considered the matter and passed the order rejecting the petitioner's
representation on 19.05.2022.
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HCP(MD)No.718 of 2022
7. It is the contention of the petitioner that there was a delay of 6 days
in submitting the remarks by the Detaining Authority, of which 2 days were
Government holidays and hence, there was an inordinate delay of 4 days in
submitting the remarks.
8. The second ground that was urged by the learned counsel for the
petitioner is that the detaining authority, inspite of being aware of the fact
that no bail petition was pending as on the date, when the detention order
was passed, placed reliance upon a similar order that was passed in
Crl.O.P.No.15807/2021 dated 12.10.2021 and came to a conclusion that
there is a likelihood of the detenu coming out on 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.
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
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HCP(MD)No.718 of 2022
supra.
10.The relevant portions are extracted hereunder:
“24. The detaining authority is required to follow
strictly and scrupulously the forms and rules of law
prescribed in that behalf or by the statutory provision under
which the order of detention is being made after arriving at a
subjective satisfaction. In the event of any deviation or
violation of the statutory provisions or infraction of
constitutional guarantees, the Courts will not hesitate to
quash the orders of detention. Whatever be the jurisdiction to
detain and the slightest infraction of the constitutional
guarantee would lead to the detenu being set at liberty.
25. It is by now well settled that in all detention laws,
the orders of detention and its continuance of detention
should be in conformity with Article 22 of the Constitution
of India and slightest infraction of the Constitutional
protection enshrined therein would be a valid ground to set
the detenu at liberty.
26. There must be cogent material before the Authority
passing the detention order for inferring that the detenu was
likely to be released on bail. This inference must be drawn
from material on record and must not be the ipse dixit of the
Authority passing the detention order.
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HCP(MD)No.718 of 2022
27. In the case of a person in custody a detention order
can validly be passed if the authority passing the order is
aware of the fact that he is actually in custody; if he has
reason to believe on the basis of reliable material placed
before him--
(a) that there is a real possibility of his being released on
bail, and
(b) if it is felt essential to detain him to prevent him from so
doing. If the authority passes an order after recording its
satisfaction in this behalf, such an order cannot be struck
down on the ground that the proper course for the authority
was to oppose the bail and if bail is granted notwithstanding
such opposition to question it before a higher Court.
28. It is neither possible nor advisable catalogue the
types of materials which can form the basis of a detention
order under the Act. That will depend on the facts and
situation of a case. That is why there is no provision in the
Act in that regard and the matter is left to the discretion of
the detaining authority. However, the facts stated in the
materials relied upon should be true and should have a
reasonable nexus with the purpose for which the order is
passed.”
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HCP(MD)No.718 of 2022
11. It is clear from the above that the detenu is in custody and he has
not filed any bail petition and there are no materials to show that he is
taking steps to file a bail petition by himself or through his relatives or it
was based merely on the presumption made by the detaining authority, the
same reflects non application of mind on the part of the detaining authority.
12.We have carefully gone through the order passed in Crl.O.P.No.
15807/2021 dated 12.10.2021. The detaining authority has specifically
stated in the detention order that the bail application filed by the detenu is
pending before this Court. However, the detaining authority has taken into
consideration the bail order that has been granted in similar case in
Crl.O.P.No.15807/2021 dated 12.10.2021 and has come to the conclusion
that there is a likelihood of the detenu coming out on bail after a lapse of
time. It is seen that in that case, there was no previous case against the
accused and he had also suffered incarceration for a sufficient period of time
and he was enlarged on bail. Whereas in the present case, the detenu had
one previous case. In view of the same, the bail order relied upon by the
detaining authority cannot be considered to be a similar case. This is a very
vague finding which is not supported by any material and the same goes
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HCP(MD)No.718 of 2022
against the settled principles of law. Therefore, the order of detention is
liable to be interfered with.
13.In the result, the Habeas Corpus Petition is allowed and the order
of detention passed by the second respondent in Cr.M.P.No.27/2022 dated
25.04.2022, is set aside. The detenu, viz., Palanikumar, S/o. Palraj, aged
about 36 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 Additional Chief Secretary to the Government,
The State of Tamil Nadu,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 9.
2. The District Collector and District Magistrate,
Tiruchirappalli District,
Tiruchirappalli.
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HCP(MD)No.718 of 2022
3. The Superintendent of Prison,
Central Prison,
Tiruchirappalli.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.718 of 2022
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.718 of 2022
28.10.2022
https://www.mhc.tn.gov.in/judis
