Madras High Court
Indira vs The Additional Chief Secretary To ... on 18 July, 2023
HCP(MD)No.1900 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.07.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.1900 of 2022
Indira ... Petitioner / Mother of the Detenu
Vs.
1.The Additional Chief Secretary to the Government,
Home, Prohibition and Excise Department,
Fort St.George, Chennai – 600 009.
2.The District Collector and District Magistrate,
Thanjavur District, Thanjavur.
3.The Superintendent of Prison,
Central Prison, Tiruchirappalli. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus, calling for the records relating to the
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HCP(MD)No.1900 of 2022
detention order passed by the 2nd respondent in
P.D.No.151/2022, dated 27.10.2022 and quash the same and direct the
respondents to produce the body or detenu, namely, Anniyan Dhivakar @
Dhivakar, S/o.Anbazhagan, aged about 22 years now detained at Central
Prison, Trichy before this Court and set him at liberty.
For Petitioner : Ms.P.Krishnaveni
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., Anniyan Dhivakar
@ Dhivakar, S/o.Anbazhagan, aged about 22 years. The detenu has been
detained by the second respondent by his order in P.D.No.151/2022, dated
27.10.2022, 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.1900 of 2022
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.1900 of 2022
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
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HCP(MD)No.1900 of 2022
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 reason to believe on
the basis of reliable material placed before him--
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HCP(MD)No.1900 of 2022
(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.”
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.1900 of 2022
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 P.D.No.151/2022, dated 27.10.2022 passed by the
second respondent is set aside. The detenu, viz., Anniyan Dhivakar @
Dhivakar, S/o.Anbazhagan, 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.)
18.07.2023
NCC : Yes / No
Index : Yes / No
Yuva
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HCP(MD)No.1900 of 2022
M.S.RAMESH, J.
AND
M.NIRMAL KUMAR, J.
Yuva
To
1.The Additional Chief Secretary to the Government,
Home, Prohibition and Excise Department,
Fort St.George, Chennai – 600 009.
2.The District Collector and District Magistrate,
Thanjavur District, Thanjavur.
3.The Superintendent of Prison,
Central Prison, Tiruchirappalli.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
H.C.P.(MD)No.1900 of 2022
18.07.2023
https://www.mhc.tn.gov.in/judis
