Madras High Court
Mahadhu vs The Additional Chief Secretary To ... on 29 August, 2023
HCP(MD)No.1035 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.08.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.1035 of 2023
Mahadhu .. Petitioner / Father of the Detenu
Vs.
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 9.
2.The District Collector and District Magistrate,
Theni District,
Theni.
3.The Superintendent of Prison,
Central Prison,
Madurai. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus, calling for the records in pursuant to the
proceedings of the second respondent in Detention Order No.24/2023 dated
Page 1 of 10
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HCP(MD)No.1035 of 2023
28.02.2023 quash the same and consequently direct the respondents to
produce the detenu, namely Abubakar Siddique, S/o.Mahadhu, aged 32
years who is now detained in Central Prison, Madurai before this Court and
set him at liberty.
For Petitioner : Mr.M.Chandrabose
For Respondents : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by M.S.RAMESH,J.)
The present Habeas Corpus Petition came up for admission on
16.08.2023 and we had granted six weeks' time for the learned Additional
Public Prosecutor to file his counter affidavit. Thereafter, it was brought to
our notice that the detention orders in the case of detenus, who were
detained under orders passed after the detenu herein was detained under Act
14, have been quashed by this Court. In this background, we are of the view
that the present Habeas Corpus Petition can be taken out of turn and
accordingly, the matter is listed before us today under the caption “for being
spoken to”.
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HCP(MD)No.1035 of 2023
2. The petitioner is the father of the detenu viz., Abubakar Siddique,
aged about 32 years, S/o.Mahadhu. The detenu has been detained by the
second respondent by his order in Detention Order No.24/2023 dated
28.02.2023 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.
3. 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.
4. 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.
5. The learned counsel for the petitioner further submitted that the
subjective satisfaction that has been arrived at by the detaining authority at
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HCP(MD)No.1035 of 2023
Paragraph No.5 of the order is not supported by any materials. Therefore,
the same also suffers from non application of mind.
6. The learned counsel for the petitioner, in order to substantiate the
submissions, relied upon the judgment of the Full Bench of this Court
reported in 2005 (2) LW 946 [K.Thirupathi v. District Magistrate and
District Collector, Tiruchirappalli District & another].
7. The learned Additional Public Prosecutor has not filed his counter.
However, he strongly opposed the Habeas Corpus Petition. It is further
submitted that investigation has been completed and charge sheet has been
filed in C.C.No.2981 of 2023 and the same is pending before the Special
Court for EC Act and NDPS Act Cases, Madurai.
8. 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.
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HCP(MD)No.1035 of 2023
9. While passing the impugned detention order, the detaining
authority had stated that the detenu is in remand in Central Prison, Madurai
in connection with Crime No.19/2023 and his remand period was extended
upto 10.03.2023. It is further stated therein that the detenu has not filed a
bail petition till date, but, however, they have received a secret information
that the detenu or his 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 becomes questionable. At this point of time, it will
be relevant to take note of the Full Bench judgment, which has been referred
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
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HCP(MD)No.1035 of 2023
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.
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.1035 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.”
11. It is clear from the above that where 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.1035 of 2023
12. 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.
13. In the result, the Habeas Corpus Petition is allowed and the order
of detention in Detention Order No.24/2023 dated 28.02.2023 passed by the
second respondent is set aside. The detenu, viz., Abubakar Siddique,
S/o.Mahadhu, aged about 32 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.)
29.08.2023
NCC : Yes / No
Index : Yes / No
Lm
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HCP(MD)No.1035 of 2023
To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 9.
2.The District Collector and District Magistrate,
Theni District,
Theni.
3.The Superintendent of Prison,
Central Prison,
Madurai.
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.1035 of 2023
M.S.RAMESH,J.
and
M.NIRMAL KUMAR,J.
Lm
H.C.P.(MD)No.1035 of 2023
29.08.2023
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