Madras High Court
P.Kavitha vs The Additional Chief Secretary To ... on 2 August, 2023
HCP(MD)No.950 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.08.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.950 of 2023
P.Kavitha .. Petitioner / mother
of the detenu
Vs.
1.The Additional Chief Secretary to Government
Home Prohibition and Excise Department,
Fort St. George, Chennai-600 009.
2.The District Collector and District Magistrate
District Collector's Office,
Thanjavur District
3.The Superintendent of Prison,
Central Prison, Trichy .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus to call for the entire records pertaining to the
detention order passed by the 2nd respondent in Detention order made in
P.D.No.147/2022 dated 19.10.2022 under Section 2(f) of Tamil Nadu Act 14
of 1982 as a Goonda and quash the same and direct the respondents to
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HCP(MD)No.950 of 2023
produce the detenu namely, Vishwa Prasath son of Power Singh, male aged
22 years detained at Central Prison, Trichy, before this Court and set him at
liberty forthwith.
For Petitioner : Mr.A.Arun Prasad
For Respondents : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by M.S.RAMESH, J.)
The petitioner is the mother of the detenu viz., Vishwa Prasad aged
about 22 years, S/o.Power Singh. The detenu has been detained by the
second respondent by his order in P.D.No.147/2022 dated 19.10.2022
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.
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.950 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 that the mother of the detenu is taking steps to
file bail application 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. Counter affidavit has not been filed. The learned Additional Public
Prosecutor appearing on behalf of the respondents has strongly objected this
petition.
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HCP(MD)No.950 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. 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.
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
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.
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HCP(MD)No.950 of 2023
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
(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
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HCP(MD)No.950 of 2023
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 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.
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 P.D.No.147/2022 dated 19.10.2022 passed by the second
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HCP(MD)No.950 of 2023
respondent is set aside. The detenu, viz., Vishwa Prasath S/o.Power Singh,
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.)
02.08.2023
Internet : Yes
RR
To
1.The Additional Chief Secretary to Government
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
District Collector's Office,
Thanjavur District
4.The Superintendent of Prison,
Central Prison, Trichy
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.950 of 2023
M.S.RAMESH, J.
and
M.NIRMAL KUMAR,J.
RR
H.C.P.(MD)No.950 of 2023
02.08.2023
https://www.mhc.tn.gov.in/judis
