Madras High Court
Rajalakshmi vs The Additional Chief Secretary To ... on 17 July, 2023
HCP(MD)No.365 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.07.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.365 of 2023
Rajalakshmi .. Petitioner /
mother of 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,
Tiruchirapalli. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus, calling for the records, pertaining to the
Detention Order passed by the 2nd respondent in Detention order made in
Page 1 of 9
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HCP(MD)No.365 of 2023
P.D.No.146/2022, 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
produce the detenu body or person namely, Manikandan, Son of
Ramachandran, Male aged about 32 years detained at Central Prison, Trichy,
before this Court and set him at liberty forthwith.
For Petitioner : Mr.A.Arunprasad
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., Manikandan, aged
about 32 years, S/o.Ramachandran. The detenu has been detained by the
second respondent by his order in P.D.No.146/2022, 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.
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HCP(MD)No.365 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 mother of the
detenu is attempting to file a bail petition 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.365 of 2023
5. The learned Additional Public Prosecutor strongly opposed the
Habeas Corpus Petition by filing his counter.
6. The detaining authority has considered the fact that the mother of
the detenu is 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 subjective satisfaction.
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HCP(MD)No.365 of 2023
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
(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
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HCP(MD)No.365 of 2023
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.
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.
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HCP(MD)No.365 of 2023
11. In the result, the Habeas Corpus Petition is allowed and the order
of detention in P.D.No.146/2022 dated 19.10.2022 passed by the second
respondent is set aside. The detenu, viz., Manikandan, S/o.Ramachandran,
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.)
17.07.2023
NCC : Yes / No
Index : Yes / No
vsm
https://www.mhc.tn.gov.in/judis
HCP(MD)No.365 of 2023
To
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,
Tiruchirapalli.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.365 of 2023
M.S.RAMESH,J.
and
M.NIRMAL KUMAR,J.
vsm
H.C.P.(MD)No.365 of 2023
17.07.2023
https://www.mhc.tn.gov.in/judis
