Madras High Court
Syed Mohammed Basha @ Batcha vs The Additional Chief Secretary To ... on 23 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
H.C.P.No.1820 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.1820 of 2023
Syed Mohammed Basha @ Batcha
S/o Kaleel Rahuman .. Petitioner
v.
1. The Additional Chief Secretary to Government
Home, Prohibition and Excise Department
Fort St.George, Chennai 600 009
2. The Commissioner of Police
Greater Chennai
Chennai 600 007
3. The Superintendent
Central Prison, Puzhal
Chennai 600 066
4. The Inspector of Police
J5, Sasthri Nagar Police Station
Chennai .. Respondents
Writ Petition filed under Article 226 of the Constitution of India,
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H.C.P.No.1820 of 2023
praying for issuance of a Writ of Habeas Corpus, to call for the records of
pertaining to the order of detention dated 25.11.2022 passed by the 2nd
respondent in Memo No.440/BCDFGISSSV/2023 and quash the same and
produce the petitioner/detenu, Syed Mohammed Basha @ Batcha, S/o
Kaleel Rahuman, aged about 27 years, detained at Central Prison, Puzhal,
Chennai before this Hon'ble Court and set him at liberty.
For Petitioner :: Mr.K.Gokulram
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, being the detenu, has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
25.11.2022, branding him as 'Goonda' under the Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug
Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand
Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982
(Tamil Nadu Act 14 of 1982).
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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 confined his argument to the point that
the detaining authority has relied upon the bail order passed in
Crl.M.P.No.10485 of 2021 by the Sessions Court, Chennai in respect of the
accused in similar case, which is not similar to the case on hand, as the bail
was granted to the accused in similar case considering the Covid-19
pandemic. Therefore, the detention order is liable to be set aside on the sole
ground that the subjective satisfaction of the detaining authority regarding
the possibility of the detenu coming out on bail in the ground case, suffers
from non-application of mind.
4. This Court perused page-212 of the booklet and is convinced with
the statement of the learned counsel for petitioner that bail was granted to
the accused in similar case due to the Covid-19 situation. This Court has
held in several cases that the detention order is vitiated if there is no
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application of mind as to the real ground on which the bail was granted to
the accused in similar case. It is also relevant to point out that 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
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
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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 position of law enunciated by the Hon'ble Supreme Court in
Rekha's case, this Court finds that the impugned detention order is vitiated
for non-application of mind.
5. Accordingly, the detention order passed by the 2nd respondent dated
25.11.2022 in BCDFGISSSV No.440/2022 is hereby set aside and the
habeas corpus petition is allowed. The detenu viz., Syed Mohammed Basha
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@ Batcha, S/o Kaleel Rahuman, aged 27 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 Additional Chief Secretary to Government
Home, Prohibition and Excise Department
Fort St.George
Chennai 600 009
2. The Commissioner of Police
Greater Chennai
Chennai 600 007
3. The Superintendent
Central Prison, Puzhal
Chennai 600 066
4. The Inspector of Police
J5, Sasthri Nagar Police Station
Chennai
5. 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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