Madras High Court
S.Ettappan vs State Of Tamil Nadu Represented By ... on 28 October, 2022
HCP(MD)No.1158 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.1158 of 2022
S.Ettappan .. Petitioner/father of the
Detenu
Vs
1. State of Tamil Nadu represented by its
Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort. St. George,
Chennai-600 009.
2. The District Collector and District Magistrate,
O/o.The District Collector and District Magistrate,
Tthoothukudi Distirct, Thoothukudi.
3. The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli 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.1158 of 2022
detention order passed by the 2nd Respondent in H.S.(M).Confdl.No.
81/2022 dated 26.04.2022 and quash the same and direct the respondents to
produce the body or person of the detenu by name, Muthumariappan, aged
22 years, S/o.Ettappan, now confined in Central Prison, Palayamkottai,
before this Court and set him at liberty.
For Petitioner : Mr.N.Pragalathan
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
The petitioner is the father of the detenu viz., Muthumariappan, aged
22 years, S/o.Ettappan. The detenu has been detained by the second
respondent by his order in H.S.(M).Confdl.No.81/2022 dated 26.04.2022
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.1158 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 the detaining authority, after taking note of the fact that
the bail petition filed by the detenu is pending before the Special Court,
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HCP(MD)No.1158 of 2022
came to a conclusion that there is a likelihood of the detenu being granted
bail, based on the bail order passed in Cr.M.P.No.365/2018 dated
30.01.2018. 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 bail order relied upon by the
detaining authority passed in Cr.M.P.No.365/2018 dated 30.01.2018 in
which one Seenivasan was granted bail. It is seen that bail was granted to
the accused therein only on the ground that nobody sustained any injury and
the major part of the investigation has been completed. Whereas in the
present case, injury was sustained by the victim and the same is clear from
para 3 of the detention order. In view of the same, we find that the
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HCP(MD)No.1158 of 2022
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
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 H.S.(M).Confdl.No.81/2022 dated 26.04.2022 passed by the
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HCP(MD)No.1158 of 2022
second respondent is set aside. The detenu, viz., Muthumariappan, aged 22
years, S/o.Ettappan, 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,
Fort St. George,
Chennai – 9.
2. The District Collector and District Magistrate,
O/o.The District Collector and District Magistrate,
Tthoothukudi Distirct, Thoothukudi.
3. The Superintendent of Prison,
Central Prison,
Palayamkottai,
Tirunelveli District.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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HCP(MD)No.1158 of 2022
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
PJL
H.C.P.(MD)No.1158 of 2022
28.10.2022
https://www.mhc.tn.gov.in/judis
