Madras High Court
Vana Rani vs The Additional Chief Secretary To ... on 26 July, 2023
HCP(MD)No.102 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.07.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.102 of 2023
Vana Rani .. Petitioner / Mother
of Detenu
Vs.
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St George, Chennai - 600 009.
2.The District Magistrate and District Collector,
Theni District, Theni.
3.The Superintendent of Police,
Theni District, Theni.
4.The Superintendent of Prison,
Central Prison,
Madurai.
5.The Inspector of Police,
Cumbum North Police Station,
Theni District. .. Respondents
Page 1 of 10
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HCP(MD)No.102 of 2023
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus, calling for the entire records pertaining to the
order of detention passed by the second respondent vide his proceedings in
Detention Order No.111/2022, dated 28.12.2022 and quash the same and
consequently direct the respondents herein to produce the petitioner’s son
Sibisurya, S/o.Palpandi (Male, aged 19 years), detained at Central Prison,
Madurai and set him at liberty.
For Petitioner : Mr.S.Balaji
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., Sibisurya,
S/o.Palpandi, aged about 19 years. The detenu has been detained by the
second respondent by his order in No.111/2022 dated 28.12.2022 holding
him to be a "Sexual Offender", as contemplated under Section 2(ggg) 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.102 of 2023
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 argument on the ground that the
detaining authority was swayed by the fact that a bail petition may be filed
before the competent Court by the detenu or his relatives in future.
4. The learned counel for the petitioner further submitted 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.
5. The learned counsel for the petitioner, in order to substantiate the
submissions, relied upon the judgment of the Full Bench reported in 2005
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HCP(MD)No.102 of 2023
(2) LW 946 [K.Thirupathi v. District Magistrate and District Collector,
Tiruchirappalli District & another].
6. Heard the learned Additional Public Prosecutor appearing on
behalf of the respondents.
7. Even though several grounds have been raised in the petition filed
before this Court, this Court is inclined to consider the main ground that has
been focussed by the learned counsel for the petitioner.
8. It is further stated therein that the detenu had not filed any bail
application till date, but, however, they have received a secret information
that his relatives will file 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 detaining authority having arrived at the subjective
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HCP(MD)No.102 of 2023
satisfaction become questionable. At this point of time, it will be relevant to
take note of the Full Bench judgment, which has been referred supra.
9. 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.
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HCP(MD)No.102 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
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HCP(MD)No.102 of 2023
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.”
10. It is clear from the above that where 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.
11. 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.
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HCP(MD)No.102 of 2023
12. In the result, the Habeas Corpus Petition is allowed and the order
of detention in No.111/2022 dated 28.12.2022 passed by the second
respondent is set aside. The detenu, viz., Sibisurya, S/o.Palpandi, aged about
19 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.)
26.07.2023
NCC : Yes / No
Index : Yes / No
PNM/RR
https://www.mhc.tn.gov.in/judis
HCP(MD)No.102 of 2023
To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St George, Chennai - 600 009.
2.The Joint Secretary
Public (Law and Order)
Secretariat, Chennai.
3.The District Magistrate and District Collector,
Theni District, Theni.
4.The Superintendent of Police,
Theni District, Theni.
5.The Superintendent of Prison,
Central Prison,
Madurai.
6.The Inspector of Police,
Cumbum North Police Station,
Theni District.
7.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
HCP(MD)No.102 of 2023
M.S.RAMESH,J.
and
M.NIRMAL KUMAR,J.
PNM/RR
H.C.P.(MD)No.102 of 2023
26.07.2023
https://www.mhc.tn.gov.in/judis
