Madras High Court
Malaarvizhi vs The Secretary To Government on 21 November, 2023
Author: S.S. Sundar
Bench: S.S. Sundar
HCP.No.2005/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.11.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.2005/2023
Malaarvizhi ... Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St George, Chennai – 600 009.
2.The Commissioner of Police/Detaining Authority
City Police Office, Huzur Road,
Coimbatore City, Coimbatore-18.
3.The Superintendent of Police
Central Prison, Coimbatore
Coimbatore District.
4.The Inspector of Police
C2 Race Course Police Station
Coimbatore District. ... Respondents
Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for a Writ of Habeas Corpus calling for the entire records
1
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HCP.No.2005/2023
relating to the petitioner's son detention under Tamil Nadu Act 14 of 1982
vide detention order dated 14.03.2023 on the file of the 2 nd respondent
herein made in proceedings Memo C.No.25/G/IS/2023, quash the same as
illegal and consequently direct the respondents herein to produce the
petitioner's son namely C.Bharani Soundar son of Chandrasekar aged 20
years before this Court and set the petitioner's son at liberty from detenion,
now the petitioner's son detained at Central Prison, Coimbatore.
For Petitioner : Mr.W.Camyles Gandhi
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
assisted by Mr.Aravind. C
ORDER
[Order of the Court was made by S.S.SUNDAR, J]
(1)The petitioner, mother of the detenu has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
14.03.2023 slapped on her son, branding him as "Goonda" under the
Tamil Nadu Act 14 of 1982.
(2)Heard the learned counsel for the petitioner and the learned Additional
Public Prosecutor appearing for the respondents.
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(3)Though several points have been raised by the learned counsel for the
petitioner, the detention order is liable to be quashed on the ground that
the subjective satisfaction of the Detaining Authority regarding the
possibility of the detenu coming out on bail by relying upon the bail order
granted to the accused in a similar case, suffers from non-application of
mind.
(4) In paragraph No.8 of the Grounds of Detention, the Detaining Authority
has also stated that there is a possibility of the detenu coming out on bail
in the ground case since in a similar case, bail was granted to the accused
therein and relied upon the order passed by the learned Principal District
and Sessions Judge, Coimbatore in CMP.No.3931/2022 on 11.08.2022.
However, on a perusal of the said order in the Booklet in page No.295,
this Court finds that the said order relates to release of the accused
therein, earlier on bail after recording the fact that the accused therein
was in the custody for more than 100 days ; that the co-accused were
already released on bail and that the accused has got one previous case
and not on merits. Therefore, it is not a similar case and the subjective
satisfaction of the Detaining Authority, regarding the possibility of the
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detenu coming out on bail suffers from non-application of mind, which
vitiates the detention order.
(5)The Hon'ble Supreme Court, in the case of Rekha Vs. State of Tamil
Nadu through Secretary to Government and Another reported in 2011
[5] SCC 244, has dealt with a situation where the Detention Order is
passed without an application of mind. In case any of the reasons stated
in the order of detention is non-existent or a material information is
wrongly assumed, that will vitiate the Detention Order. In the instant
case, the Detaining Authority has arrived at the subjective satisfaction
that the detenu is likely to be released on bail in the ground case by
referring to a bail order granted to an accused in a similar case in
CMP.No.3931/2022 by the learned Principal District and Sessions Judge,
Coimbatore. However, the said bail was granted on the ground that
accused therein was in custody for more than 100 days and that he has got
one previous case and further, the co-accused therein were already
released on bail and not on merits. The said case is not similar to the
ground case and hence, it cannot be compared. This indicates non-
application of mind on the part of the Detaining Authority. When the
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subjective satisfaction was irrational or there was non-application of
mind, the Hon'ble Supreme Court held that the order of detention is liable
to be quashed. It is relevant to extract paragraphs No.10 and 11 of the
said judgment of the Hon'ble Supreme Court:-
''10. In our opinion, if details are given by the
respondent authority about the alleged bail orders in
similar cases mentioning the date of the orders, the bail
application number, whether the bail order was passed
in respect of the co-accused in the same case, and
whether the case of the co-accused was on the same
footing as the case of the petitioner, then, of course, it
could be argued that there is likelihood of the accused
being released on bail, because it is the normal
practice of most courts that if a co-accused has been
granted bail and his case is on the same footing as that
of the petitioner, then the petitioner is ordinarily
granted bail. However, the respondent authority should
have given details about the alleged bail order in
similar cases, which has not been done in the present
case. A mere ipse dixit statement in the grounds of
detention cannot sustain the detention order and has to
be ignored.
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11. In our opinion, the detention order in
question only contains ipse dixit regarding the alleged
imminent possibility of the accused coming out on bail
and there was no reliable material to this effect. Hence,
the detention order in question cannot be sustained.''
(6)In view of the ratio laid down by the Hon'ble Supreme Court in the
aforesaid judgment and in view aforesaid facts, this Court is of the view
that the detention order is liable to be quashed.
(7)Accordingly, the detention order passed by the 2nd respondent dated
14.03.2023 in Memo.C.No.25/G/IS/2023, is hereby set aside and the
Habeas Corpus Petition is allowed. The detenu is directed to be set at
liberty forthwith unless he is required in connection with any other case.
[SSSRJ] [SMJ]
21.11.2023
AP
Internet : Yes
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To
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St George, Chennai – 600 009.
2.The Commissioner of Police/Detaining Authority
City Police Office, Huzur Road,
Coimbatore City, Coimbatore-18.
3.The Superintendent of Police
Central Prison, Coimbatore
Coimbatore District.
4.The Inspector of Police
C2 Race Course Police Station
Coimbatore District.
5.The Public Prosecutor,
High Court, Madras.
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S.S. SUNDAR, J.,
and
SUNDER MOHAN, J.,
AP
21.11.2023
https://www.mhc.tn.gov.in/judis
