Madras High Court
Vahitha Begam vs State Of Tamil Nadu on 25 July, 2023
H.C.P(MD)No.453 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.07.2023
CORAM :
THE HONOURABLE MR JUSTICE M.S.RAMESH
AND
THE HONOURABLE MR JUSTICE M.NIRMAL KUMAR
H.C.P(MD)No.453 of 2023
Vahitha Begam .. Petitioner
vs.
1.State of Tamil Nadu,
Rep. by the Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George, Chennai - 600 009.
2.The District Magistrate and District Collector,
O/o.The District Magistrate and District Collector,
Ariyalur District, Ariyalur.
3.The Superintendent of Prison,
Central Prison, Trichy. ... Respondents
PRAYER: Petition under Article 226 of the Constitution of India praying to
issue a writ of habeas corpus calling for the entire records pertaining to the
detention order in Cr.M.P.No.43/2022 dated 20.12.2022 and set aside the
same as illegal and direct the respondents to produce the body or person of
the petitioner's son, namely, Bagurudeen, S/o.Bashir, male, aged about 22
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H.C.P(MD)No.453 of 2023
years, who is detained in Central Prison, Trichy before this Court and set
him at liberty.
For Petitioner : Mr.P.Karthick
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 mother of the detenu viz., Bagurudeen,
S/o.Bashir, aged about 22 years. The detenu has been detained by the
second respondent by order in Cr.M.P.No.43/2022 dated 20.12.2022
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.
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H.C.P(MD)No.453 of 2023
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 relative of the detenu is
attempting to file a bail petition and therefore, he 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. The detaining authority has considered the fact that a relative of the
detenu is attempting to file a bail petition before the competent Court and
came to the conclusion that there is an imminent possibility of the detenu
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H.C.P(MD)No.453 of 2023
coming out on bail. 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.
7. 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
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
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H.C.P(MD)No.453 of 2023
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
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H.C.P(MD)No.453 of 2023
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.”
8. It is evident from the above Judgment that, when there are no
materials to show that detenu's relative is taking steps to file bail application
and it was merely a presumption of the detaining authority that the detenu's
relative 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.
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H.C.P(MD)No.453 of 2023
9. In the result, the Habeas Corpus Petition is allowed and the order
of detention in Cr.M.P.No.43/2022 dated 20.12.2022, passed by the second
respondent is set aside. The detenu, viz., Bagurudeen, S/o.Bashir, 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.)
25.07.2023
NCC : Yes/No
Index : Yes/No
Speaking/Non-speaking order
mbi
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H.C.P(MD)No.453 of 2023
To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George, Chennai - 600 009.
2.The District Magistrate and District Collector,
O/o.The District Magistrate and District Collector,
Ariyalur District, Ariyalur.
3.The Superintendent of Prison,
Central Prison, Trichy.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
5.The Joint Secretary,
Public (Law and Order) Department,
Fort St.George, Chennai.
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H.C.P(MD)No.453 of 2023
M.S.RAMESH, J.
and
M.NIRMAL KUMAR, J.
mbi
H.C.P(MD)No.453 of 2023
25.07.2023
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