Madras High Court
Madhan Kumar vs State Represented By on 10 July, 2023
HCP(MD)No.1610 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.07.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.1610 of 2022
Madhan Kumar .. Petitioner / detenu
Vs.
1.State represented by
The Additional Chief Secretary to Government
Home Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2.The District Collector and District Magistrate
Theni District,
Theni.
3.The Superintendent of Prison,
Central Prison,
Madurai .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus to call for the records, from the 2nd respondent in
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HCP(MD)No.1610 of 2022
pertaining to the detention order No.85/2022 dated 30.08.2022 and set aside
the same and setting the detenu Madhan Kumar, S/o.Kuttiya Pillai, (aged
about 36 years) at liberty, now he is confined at Central Prison, Madurai.
For Petitioner : Mr.S.Balaji
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., Madhan Kumar, S/o.Kuttiya
Pillai, aged about 36 years. The detenu has been detained by the second
respondent by his order in No.85/2022 dated 30.08.2022 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.1610 of 2022
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.1610 of 2022
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 detenu is in remand at District Jail, Theni, in
connection with Crime No.259/2022 and this remand period was extended
upto 13.09.2022. It is further stated therein that the detenu had not filed any
bail application till date, but, however, they have received a secret
information that 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 become questionable. At this point of time, it will be
relevant to take note of the Full Bench judgment, which has been referred
supra.
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HCP(MD)No.1610 of 2022
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.
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
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HCP(MD)No.1610 of 2022
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
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
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HCP(MD)No.1610 of 2022
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 No.85/2022 dated 30.08.2022 passed by the second
respondent is set aside. The detenu, viz., Madhan Kumar, S/o.Kuttiya
Pillai, aged about 36 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.)
10.07.2023
Internet : Yes
Index : Yes / No
NCC : Yes / No
RM/RR
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HCP(MD)No.1610 of 2022
To
1.The Additional Chief Secretary to Government
Home Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate
Theni District,
Theni.
3.The Superintendent of Prison,
Central Prison,
Madurai
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.1610 of 2022
M.S.RAMESH, J.
and
M.NIRMAL KUMAR,J.
RM/RR
H.C.P.(MD)No.1610 of 2022
10.07.2023
https://www.mhc.tn.gov.in/judis
