Madras High Court
Sathishkumar @ Thakkali Sathish vs The Principal Secretary To ... on 22 August, 2023
HCP(MD)No.1007 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.08.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.1007 of 2023
Sathishkumar @ Thakkali Sathish .. Petitioner / 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, connected with
the detention order of the Respondent No.2 in No.10/BCDFGISSSV/2023
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HCP(MD)No.1007 of 2023
dated 22.02.2023 and quash the same and direct the respondents to produce
the body or person of the detenu by name Sathishkumar @ Thakkali
Sathish, son of Babu @ Thakkali Babu, aged about 22 years, now detained
as “Goonda” at Madurai Central Prison before this Court and set him 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 detenu viz., Sathishkumar @ Thakkali Sathish,
aged about 22 years, S/o.Babu @ Thakkali Babu. The detenu has been
detained by the second respondent by his order in
No.10/BCDFGISSSV/2023 dated 22.02.2023 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.1007 of 2023
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.
3. Though several grounds have been raised in the Habeas Corpus
Petition, the learned counsel appearing for the petitioner mainly contended
that the detaining authority was swayed by the fact that the relatives of the
detenu are taking efforts to take him out on bail by filing bail application
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 at
Paragraph No.5 of the order is not supported by any materials. Therefore,
the same also suffers from non application of mind.
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].
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HCP(MD)No.1007 of 2023
5. The learned Additional Public Prosecutor has not filed his counter.
However, he strongly opposed the Habeas Corpus Petition.
6. The detaining authority has considered the fact that the relatives of
the detenu are attempting to file a bail petition before the competent Court.
Therefore, the detaining authority came to the conclusion that there is an
imminent possibility of the detenu coming out on bail.
7. The satisfaction that has been arrived at by the detaining authority
is merely on surmises and it is not based on any materials that has been
placed before the detaining authority. At this point of time, it will be
relevant to take note of the Full Bench judgment, which has been referred
supra.
8. 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.1007 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.1007 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.”
9. 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.
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HCP(MD)No.1007 of 2023
10. 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. The impugned detention order is, therefore, liable to be quashed.
11. In the result, the Habeas Corpus Petition is allowed and the order
of detention in No.10/BCDFGISSSV/2023 dated 22.02.2023 passed by the
second respondent is set aside. The detenu, viz., Sathishkumar @ Thakkali
Sathish, S/o.Babu @ Thakkali Babu, aged about 22 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.)
22.08.2023
NCC : Yes / No
Index : Yes / No
Lm
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HCP(MD)No.1007 of 2023
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,
Madurai City,
Madurai.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai District.
4.The Joint Secretary to Government,
Public (Law and Order),
Fort St.George, Chennai.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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HCP(MD)No.1007 of 2023
M.S.RAMESH,J.
and
M.NIRMAL KUMAR,J.
Lm
H.C.P.(MD)No.1007 of 2023
22.08.2023
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