Madras High Court
Akila vs The Principal Chief Secretary To ... on 20 July, 2023
HCP(MD)No.2120 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.07.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.2120 of 2022
Akila .. Petitioner / Sister of the
detenu
Vs.
1.The Principal Chief Secretary to Government
Home Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The Commissioner of Police,
Madurai City
Madurai District
3.The Superintendent of Prison,
Central Prison
Madurai District.
4.The Inspector of Police
Thallakulam Police Station,
Madurai City
Madurai District .. Respondents
Page 1 of 18
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus to call for the entire records, connected with the
detention order of the respondent No.2 in No.82/BCDFGISSSV/2022 dated
21.11.2022 and quash the same and direct the respondents to produce the
body or person of the detenu by name Arunpandian, son of Muthusamy,
aged about 19 years now detained as Goonda at Madurai Central Prison
before this Court and set him at liberty forthwith.
For Petitioner : Mr.R.Alagumani
For Respondents : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by M.S.RAMESH, J.)
The petitioner is the sister of the detenu viz., Arunpandian aged about
19 years, S/o.Muthusamy. The detenu has been detained by the second
respondent by his order in No.82/BCDFISSSV/2022 dated 21.11.2022
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
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
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 several grounds have been raised in the Habeas Corpus
Petition, the learned counsel appearing for the petitioner mainly focus his
arguments on the following grounds:
(i) the detaining authority was swayed by the fact that the relatives of
detenu are 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.4 of the order is
not supported by any materials; and
(ii) the detaining authority, after being aware of the fact that the bail
applications filed by the detenu were dismissed, came to the conclusion that
there is a real possibility of the detenu coming out on bail by relying upon
the order passed in Crl.M.P.No.404/2017. The learned counsel therefore
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
submitted that the order that was relied upon by the detaining authority was
not a similar and the offence involved therein is under Section 307 IPC.
On both these grounds, the detention order is liable to be interfered with, he
contended.
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].
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 relatves 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
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
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. 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.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
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
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
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
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 after
dismissal of the earlier bail applications, 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. Hence, the same reflects non
application of mind on the part of the detaining authority. It is also to be
noted that the detaining authority took into consideration the order passed in
Crl.M.P.No.404/2017 and came to the conclusion that there is a likelihood
of the detenu coming out on bail. Perusal of the order shows that the
accused therein had already suffered 45 days incarceration, the injured has
been discharged from the hospital and the offences were also under Sections
147, 148, 448, 294(b), 323, 324, 506(ii), 307 IPC and Section 4 of TNPHW
Act. However, in the present case, the FIR was registered for offences
under Sections 143, 448, 294(b), 268, 323, 308 and 506(ii) IPC and Section
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
4 of TNPHW Act and hence, the bail order that was relied upon by the
detaining authority cannot be considered to be a similar one.
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 No.82/BCDFISSSV/2022 dated 21.11.2022 passed by the
second respondent is set aside. The detenu, viz., Arunpandian
S/o.Muthusamy, aged about 19 years, is directed to be released forthwith
unless his detention is required in connection with any other case.
12. At this juncture, we noticed that for a trivial nature of offence, the
petitioner herein, who is a college student, along with other students like
that of the petitioner herein have been slapped with detention order under
Act 14 of 1982. Hence, we are of the view that though the offender can be
termed as a Goonda, even for an involvement in a solitary case, the nature
of the commission of offence and the overt act attributed to the offender also
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
gains significance for the purpose of such consideration, while such
detention orders are passed. In this regard, the learned Additional Public
Prosecutor seeks time to place his arguments. Hence, list the matter on
01.08.2023.
(M.S.R.,J.) (M.N.K.,J.)
20.07.2023
Internet : Yes
RR
To
1.The Principal Chief Secretary to Government
Home Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The Joint Secretary to Government
Public (Law and Order)
Secretariat, Chennai.
3.The Commissioner of Police,
Madurai City, Madurai District
4.The Superintendent of Prison,
Central Prison, Madurai District.
5.The Inspector of Police
Thallakulam Police Station,
Madurai City, Madurai District
6.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
M.S.RAMESH, J.
and
M.NIRMAL KUMAR,J.
RR
H.C.P.(MD)No.2120 of 2022
20.07.2023
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
H.C.P.(MD)Nos.2069, 2119 & 2120 of 2022 and 459 of 2023
M.S.RAMESH, J.
and
M.NIRMAL KUMAR, J.
COMMON ORDER
(Order of the Court was made by M.S.RAMESH, J.)
These Habeas Corpus Petitions are listed today under the caption ''for
further hearing''.
2. On 20.07.2023, we had set aside the detention orders
predominantly on the ground that the detaining authority was swayed away
by the fact that the relatives of the detenus are attempting to file bail
petition, which aspect was not supported by any materials and hence, the
subjective satisfaction arrived at by the detaining authority was found fault
with. The detaining authority had also taken note of the comparison of
similar case, through which, he was of the view that there is every
likelihood for the detenus coming out on bail, while the fact remained that
the similar case, was not a similar to that of the ground case, in which, the
detenus were involved.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
3. While passing such orders, we had noticed that the detenus were
college students, against whom, the detention orders were passed. Since
their involvement was only in a solitary case, we had called upon the
learned Additional Public Prosecutor to address this aspect, in the light of
the decisions of the Hon'ble Supreme Court in Banka Sneha Sheela vs.
State of Telangana and others reported in 2021 (9) SCC 415, as well as in
the case of Yumman Ongbi Lembi Leima vs. State of Manipur and
others reported in 2012 (2) SCC 176.
4. The learned Additional Public Prosecutor had referred to a portion
of the detention order, whereby, the detaining authority had arrived at the
subjective satisfaction for passing the detention orders. A perusal of the
same would reveal that the detaining authority had taken into consideration
the investigation that was pending in the ground case in Crime No.789 of
2022 for the offences under Sections 143, 448, 294(b), 268, 323, 308 and
506(ii) I.P.C. and Section 4 of the Tamil Nadu Prohibition of Harassment of
Women Act, 2002 read with Section 188 of the Motor Vehicles Act, 1988,
altered into Sections 143, 448, 294(b), 268, 323, 308 and 506(ii) I.P.C. and
Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
read with Section 188 of the Motor Vehicles Act, 1988 and Section 83(ii) of
the Juvenile Justice (Care and Protection of Children) Act, 2015. In the
detention orders, the detaining authority had referred to an occurrence on
30.10.2022 at about 12.20 hours, which day is celebrated as ''Thevar
Jayanthi'', wherein the detenus, along with others, had recklessly driven two
wheelers and trespassed into a Ladies College. The detaining authority had
also taken note of the fact that the watchman of the College, who had tried
to prevent them, was assaulted and pushed down. During this ruckus, the
College girl students had run helter-skelter out of fear and the public, who
were nearby, had raised alarms. The presence of the detenus and others had
caused fear among the vehicle riders, who were passing that way, as well as
the general public on that area and therefore, the detention orders were
passed against the detenus.
5. The issue before us is, as to whether such an act would affect even
the tempo of life and jeopardize the public order.
6. In view of the act of the detenus, as evidenced in the grounds of
detention, the College girl students and the general public in the vicinity,
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
were put to danger and fear and thereby, the public tranquility in that area
was affected. Such an act would amount to disturbance to public order.
7. The Hon'ble Supreme Court in the case of Arun Ghosh vs. State
of West Bengal reported in 1970 (1) SCC 98 had taken cognizance of such
acts and held that the past activities of the detenu, as revealed in the grounds
of detention, would affect the maintenance of public order and had upheld
the order of detention. In the same order, the Hon'ble Supreme Court had
also referred to instances, where a man malice the girls in a public place,
which disturbs the Society and Community and consequently held that the
tempo of life, which is an essential requirement to public order, would be
affected. The relevant portion of the said judgment reads as follows:-
''3. .... In Dr.Ram Manohar Lohia case [(1966) 1
SCR 709] this Court pointed out the difference between
maintenance of law and order and its disturbance and
the maintenance of public order and its disturbance.
Public order was said to embrace more of the
community than law and order. Public order is the even
tempo of the life of the community taking the country as
a whole or even a specified locality. Disturbance of
public order is to be distinguished from acts directed
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
against individuals which do not disturb the society to
the extent of causing a general disturbance of public
tranquillity. It is the degree of disturbance and its affect
upon the life of the community in a locality which
determines whether the disturbance amounts only to a
breach of law and order. Take for instance, a man stabs
another. People may be shocked and even disturbed,
but the life of the community keeps moving at an even
tempo, however much one may dislike the act. Take
another case of a town where there is communal
tension. A man stabs a member of the other community.
This is an act of a very different sort. Its implications
are deeper and it affects the even tempo of life and
public order is jeopardized because the repercussions
of the act embrace large sections of the community and
incite them to make further breaches of the law and
order and to subvert the public order. An act by itself is
not determinant of its own gravity. In its quality it may
not differ from another but in its potentiality it may be
very different. Take the case of assault on girls. A guest
at a hotel may kiss or make advances to half a dozen
chamber maids. He may annoy them and also the
management but he does not cause disturbance of
public order. He may even have a fracas with the
friends of one of the girls but even then it would be a
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
case of breach of law and order only. Take another
case of a man who molests women in lonely places. As
a result of his activities girls going to colleges and
schools are in constant danger and fear. Women going
for their ordinary business are afraid of being waylaid
and assaulted. The activity of this man in its essential
quality is not different from the act of the other man but
in its potentiality and in its affect upon the public
tranquillity there is a vast difference. The act of the
man who molests the girls in lonely places causes a
disturbance in the even tempo of living which is the
first requirement of public order. He disturbs the
society and the community. His act makes all the
women apprehensive of their honour and he can be
said to be causing disturbance of public order and not
merely committing individual actions which may be
taken note of by the criminal prosecution agencies. It
means therefore that the question whether a man has
only committed a breach of law and order or has acted
in a manner likely to cause a disturbance of the public
order is a question of degree and the extent of the reach
of the act upon the society. ....''
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
8. On a conjoint reading of the above said decision of the Hon'ble
Supreme Court, along with the observations made by us, apart from the
subjective satisfaction arrived at by the detaining authority, we are of the
affirmed view that the detenus herein had involved in acts, that disturbs the
public order and accordingly, the purpose of which the matters are listed
today is met. However since, we had earlier interfered with the detention
orders on other grounds, based on which, the detenus have also been set
free, the present order shall not be detrimental to their release. Accordingly,
these Habeas Corpus Petitions stand closed.
NCC : Yes / No [M.S.R., J.] [M.N.K., J.]
Index : Yes / No 01.08.2023
Internet : Yes / No
SMN2
https://www.mhc.tn.gov.in/judis
HCP(MD)No.2120 of 2022
M.S.RAMESH, J.
and
M.NIRMAL KUMAR, J.
SMN2
COMMON ORDER MADE IN
H.C.P.(MD)Nos.2069, 2119 & 2120 of 2022 and 459 of 2023
DATED : 01.08.2023
https://www.mhc.tn.gov.in/judis
