Madras High Court
Palpandi vs State Of Tamil Nadu on 19 July, 2023
H.C.P(MD)No.233 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.07.2023
CORAM :
THE HONOURABLE MR JUSTICE M.S.RAMESH
AND
THE HONOURABLE MR JUSTICE M.NIRMAL KUMAR
H.C.P(MD)No.233 of 2023
Palpandi .. Petitioner
vs.
1.State of Tamil Nadu,
Rep. by the Additional Chief Secretary to Government,
Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Chennai - 600 009.
2.The District Collector and District Magistrate,
Theni District, Theni.
3.The Superintendent,
Central Prison, Madurai. ... Respondents
PRAYER: Petition under Article 226 of the Constitution of India praying to
issue a writ of habeas corpus calling for the records pertaining to the
proceedings of the second respondent in Detention Order No.101/2022
dated 08.11.2022 and quash the same and set the petitioner's son by name
Thangamalai, S/o.Palpandi, aged about 22 years at liberty from the 3rd
respondent / Central Prison, Madurai.
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H.C.P(MD)No.233 of 2023
For Petitioner : Mr.M.Jegadeesh Pandian
For respondents : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.S.RAMESH, J.]
The petitioner is the father of the detenu viz., Thangamalai,
S/o.Palpandi, aged about 22 years. The detenu has been detained by the
second respondent by order in No.101/2022 dated 08.11.2022 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.
3. Though many grounds have been raised in the petition, the learned
counsel for the petitioner focussed his arguments on the ground that the
detaining authority was swayed by the fact that a bail petition may be filed
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H.C.P(MD)No.233 of 2023
before the competent Court by the detenu or his relatives in future. He
further submitted that the subjective satisfaction arrived at by the detaining
authority at Paragraph No.5 of the order is not supported by any materials.
4. The learned counsel for the petitioner, in order to substantiate his
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].
5. The learned Additional Public Prosecutor strongly opposed the
Habeas Corpus Petition by filing his counter.
6. Even though several grounds have been raised in the petition, this
Court is inclined to consider the main ground that has been focussed by the
learned counsel for the petitioner.
7. While passing the impugned detention order, the detaining
authority had stated that the detenu is remanded in District Jail, Theni in
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H.C.P(MD)No.233 of 2023
connection with Crime No.192/2022 and his remand period is upto
14.11.2022. It is further stated therein that the bail application filed by the
detenu was dismissed on 03.11.2022, however, they have received a secret
information that the detenu or his relatives might file a 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 subjective
satisfaction arrived at by the detaining authority becomes questionable.
8. At this point of time, it will be relevant to take note of the Full
Bench judgment, which has been referred supra. 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
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H.C.P(MD)No.233 of 2023
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
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H.C.P(MD)No.233 of 2023
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.”
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H.C.P(MD)No.233 of 2023
9. It is evident from the above Judgment that when the detenu is in
custody and there are no materials to show that he is taking steps to file a
bail petition by himself or through his relatives and it was merely a
presumption made by the detaining authority that the detenue or his
relatives might file a bail petition, the same reflects non-application of mind
on the part of the detaining authority. In view of the same, the detention
order is liable to be interfered with.
10. In the result, the Habeas Corpus Petition is allowed and the order
of detention in No.101/2022 dated 08.11.2022 passed by the second
respondent is set aside. The detenu, viz., Thangamalai, S/o.Palpandi, 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.)
19.07.2023
NCC : Yes/No
Index : Yes/No
Speaking/Non-speaking order
mbi
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H.C.P(MD)No.233 of 2023
To
1.The Additional Chief Secretary to Government,
Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Chennai - 600 009.
2.The District Collector and District Magistrate,
Theni District, Theni.
3.The Superintendent,
Central Prison,
Madurai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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H.C.P(MD)No.233 of 2023
M.S.RAMESH, J.
and
M.NIRMAL KUMAR, J.
mbi
H.C.P(MD)No.233 of 2023
19.07.2023
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