Madras High Court
Sivakumar vs The Principal Chief Secretary To ... on 20 July, 2023
HCP(MD)No.459 of 2023
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.459 of 2023
Sivakumar .. Petitioner / father 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 10
https://www.mhc.tn.gov.in/judis
HCP(MD)No.459 of 2023
Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus to call for the entire records, relating to the detention
of the petitioner's son namely Muthu Navesh (detenu) S/o.Sivakumar aged
21 years under the Tamil Nadu Act 14 of 1982 vide detention order dated
21.11.2022 made in No.83/BCDFISSSV/2022 passed by the 2nd respondent
herein and quash the same as illegal and consequently direct the respondents
herein to produce the person or body of the detenu now confined at Central
Priso, Madurai before this Court and thereafter set him at liberty.
For Petitioner : Mr.C.Vivekanandan
For Respondents : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by M.S.RAMESH, J.)
The petitioner is the father of the detenu viz., Muthu Navesh aged
about 21 years, S/o.Sivakumar. The detenu has been detained by the second
respondent by his order in No.83/BCDFISSSV/2022 dated 21.11.2022
holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil
https://www.mhc.tn.gov.in/judis
HCP(MD)No.459 of 2023
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 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.459 of 2023
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.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.459 of 2023
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. 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.459 of 2023
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
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
https://www.mhc.tn.gov.in/judis
HCP(MD)No.459 of 2023
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
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.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.459 of 2023
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.83/BCDFISSSV/2022 dated 21.11.2022 passed by the
second respondent is set aside. The detenu, viz., Muthu Navesh
S/o.Sivakumar, aged about 21 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
gains significance for the purpose of such consideration, while such
detention orders are passed. In this regard, the learned Additional Public
https://www.mhc.tn.gov.in/judis
HCP(MD)No.459 of 2023
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.459 of 2023
M.S.RAMESH, J.
and
M.NIRMAL KUMAR,J.
RR
H.C.P.(MD)No.459 of 2023
20.07.2023
https://www.mhc.tn.gov.in/judis
