Madras High Court
Kavitha vs The Secretary To Government on 23 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
H.C.P.No.1986 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.11.2023
CORAM :
THE HON'BLE MR. JUSTICE S.S.SUNDAR
AND
THE HON'BLE MR.JUSTICE SUNDER MOHAN
H.C.P.No.1986 of 2023
Kavitha
W/o Senthil .. Petitioner
v.
1. The Secretary to Government
Government of Tamil Nadu (Home)
Prohibition and Excise Department
Fort St.George
Chennai 600 009
2. The District Magistrate and District Collector
Namakkal District
3. The Superintendent of Police
Namakkal District, Namakkal
4. The Superintendent
Central Prison, Salem
5. The Inspector of Police
Ayilpatty Police Station
Namakkal District .. Respondents
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H.C.P.No.1986 of 2023
Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Habeas Corpus, to call for the records
relating to the impugned order C.M.P.No.2/Sexual Offender/2023 (M1)
dated 21.03.2023 on the file of the 2nd respondent herein and set aside the
same as illegal and direct the respondents to produce namely Senthil, Son of
Arappuli, aged about 38 years, now confined at Central Prison, Salem,
before this Hon'ble Court set him at liberty.
For Petitioner :: Mr.S.Panneer Selvan
For Respondents :: Mr.E.Raj Thilak
Additional Public Prosecutor
assisted by Mr.C.Aravind, Advocate
ORDER
(Order of the Court was made by S.S.SUNDAR,J.)
The petitioner, who is the wife of the detenu, namely, Senthil, aged
38 years, S/o Arappuli, has come forward with this petition challenging the
detention order passed by the 2nd respondent dated 21.03.2023 slapped on
her husband, branding him as 'Sexual Offender' under the Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders,
Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders,
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Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act,
1982 (Tamil Nadu Act 14 of 1982).
2. Heard the learned counsel appearing for the petitioner and the
learned Additional Public Prosecutor appearing for the respondents.
3. Though several grounds are raised in the petition, the learned
counsel appearing for the petitioner pointed out that the detaining authority
has relied upon the bail order passed by this Court in Crl.O.P.No.2773 of
2022 dated 04.02.2022 in respect of the accused therein, which is not
similar to the offence alleged against the detenu in the ground case, as bail
was granted to the accused in similar case for the offence under Sections
366, 376 of IPC read with Section 67 of the Information Technology
(Amendment) Act, 2008. Whereas the detenu herein has been charged for
the offence under Sections 457, 380, 376 and 302 of IPC in the ground case.
Therefore, the detention order is liable to be set aside on the sole ground
that the subjective satisfaction of the detaining authority suffers from non-
application of mind.
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4. This Court perused page-103 of the booklet and is convinced with
the statement of the learned counsel for petitioner that the bail was granted
to the accused in similar case for the offence under Sections 366, 376 of IPC
read with Section 67 of the Information Technology (Amendment) Act,
2008. Whereas the detenu herein has been charged for the offence under
Sections 457, 380, 376 and 302 of IPC in the ground case. Therefore, the
subjective satisfaction of the detaining authority suffers from non-
application of mind. The Hon'ble Supreme Court in the case of Rekha v.
State of Tamil Nadu through Secretary to Government and another,
(2011) 5 SCC 244, has held that 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. When the 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 paragraph Nos.10 and 11 of the said judgment of the
Hon'ble Supreme Court, as follows:-
“10.In our opinion, if details are given by the
respondent authority about the alleged bail orders in
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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.
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.''
In view of the judgment of the Hon'ble Supreme Court in Rekha's case, this
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Court finds that the impugned order is liable to be quashed.
5. Accordingly, the detention order passed by the 2nd respondent dated
21.03.2023 in C.M.P.No.2/Sexual Offender/2023 (M1) is hereby set aside
and the habeas corpus petition is allowed. The detenu viz., Senthil, S/o
Arappuli, aged 38 years, is directed to be set at liberty forthwith, unless he
is required in connection with any other case.
Index : yes/no (S.S.S.R.,J.) (S.M.,J.)
Neutral citation : yes/no 23.11.2023
ss
To
1. The Secretary to Government
Home, Prohibition and Excise Department
Fort St.George, Chennai 600 009
2. The District Magistrate and District Collector
Namakkal District
3. The Superintendent of Police
Namakkal District, Namakkal
4. The Superintendent
Central Prison, Salem
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5. The Inspector of Police
Ayilpatty Police Station
Namakkal District
6. The Public Prosecutor
High Court, Madras
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S.S.SUNDAR,J.
AND
SUNDER MOHAN,J.
ss
23.11.2023
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