Madras High Court
Umadevi @ Murugeswari vs The Additional Chief Secretary To ... on 14 August, 2023
HCP(MD)No.462 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.08.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.462 of 2023
Umadevi @ Murugeswari .. Petitioner / detenu
Vs.
1.The Additional Chief Secretary to Government
State of Tamil Nadu
Home Prohibition and Excise Department,
Fort St. George, Chennai-600 009.
2.The District Collector and District Magistrate
Office of the Collector and District Magistrate
Theni District, Theni.
3.The Superintendent of Prison,
Special Prison for Women,
Madurai District .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus to call for the entire records connected with the
detention order of the respondent No.2 in detention Order No.22/2023 dated
21.02.2023 and quash the same and direct the respondents to produce the
body or person of the detenue by name Umadevi @ Murugeswari, Wife of
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HCP(MD)No.462 of 2023
Ranganathan, aged about 47 years now confined as Drug Offender at
Madurai Central prison, before this Court and set her at liberty forthwith.
For Petitioner : Mr.R.Alagumani
For Respondents : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by M.S.RAMESH, J.)
The petitioner is the detenue viz., Umadevi @ Murugeswari aged
about 47 years, W/o.Ranganathan. The detenu has been detained by the
second respondent by his order in detention Order No.22/2023 dated
21.02.2023 holding him to be a "Drug Offender", as contemplated under
Section 2(e) 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.462 of 2023
3.Though many grounds have been raised in the petition, the learned
counsel for the petitioner focussed his argument on the ground that the
detaining authority was swayed by the fact that a bail petition may be filed
before the competent Court by the detenu or his relatives in future.
4. The learned counel for the petitioner further submitted that the
subjective satisfaction that has been arrived at by the detaining authority at
Paragraph No.5 of the order is not supported by any materials. Therefore,
the same also suffers from non application of mind.
5. 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].
6. Heard the learned Additional Public Prosecutor appearing on
behalf of the respondents.
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HCP(MD)No.462 of 2023
7. Even though several grounds have been raised in the petition filed
before this Court, this Court is inclined to consider the main ground that has
been focussed by the learned counsel for the petitioner.
8. While passing the impugned detention order, the detaining
authority had stated that the detenue had not filed any bail application till
date, but, however, they have received a secret information that her relatives
will file bail application before the competent Court very soon. Though the
source of secret information may not be disclosed to the petitioner, the
information as such ought to have been disclosed to the petitioner. The non
supply of such a vital information may not be justifiable and hence, the
detaining authority having arrived at the subjective satisfaction become
questionable. At this point of time, it will be relevant to take note of the
Full Bench judgment, which has been referred supra.
9. 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
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HCP(MD)No.462 of 2023
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.
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
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HCP(MD)No.462 of 2023
(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.”
10. It is clear from the above that where the detenue is in custody and
she has not filed any bail petition and there are no materials to show that she
is taking steps to file a bail petition by herself or through her 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.
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HCP(MD)No.462 of 2023
11. In view of the above, the detention order suffers from non
application of mind and the same is liable to be interfered with by this
Court.
12. In the result, the Habeas Corpus Petition is allowed and the order
of detention in detention Order No.22/2023 dated 21.02.2023 passed by the
second respondent is set aside. The detenue, viz.,Umadevi @ Murugeswari
W/o.Ranganathan, aged about 47 years, is directed to be released forthwith
unless his detention is required in connection with any other case.
(M.S.R.,J.) (M.N.K.,J.)
14.08.2023
Internet : Yes
RR
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HCP(MD)No.462 of 2023
To
1.The Additional Chief Secretary to Government
State of Tamil Nadu
Home Prohibition and Excise Department,
Fort St. George, Chennai-600 009.
2.The Joint Secretary
Public Law and Order
Secretariat, Chennai.
3.The District Collector and District Magistrate
Office of the Collector and District Magistrate
Theni District, Theni.
4.The Superintendent of Prison,
Special Prison for Women,
Madurai District
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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HCP(MD)No.462 of 2023
M.S.RAMESH, J.
and
M.NIRMAL KUMAR,J.
RR
H.C.P.(MD)No.462 of 2023
14.08.2023
https://www.mhc.tn.gov.in/judis
