Madras High Court
Malarkodi vs State Of Tamil Nadu on 24 November, 2023
Author: S.S. Sundar
Bench: S.S. Sundar
H.C.P.No.1468 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.11.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1468 of 2023
Malarkodi ... Petitioner
Vs.
1.State of Tamil Nadu,
Rep. by the Secretary,
Home, Prohibition and Excise Department,
Fort St. George, Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai,
Office of the Commissioner of Police (Goondas Section)
Vepery, Chennai.
3.The Superintendent of Police,
Central Prison, Puzhal,
Chennai.
4.The Inspector of Police,
G-2, Periyamedu Police Station,
Chennai. ... Respondents
Page 1 of 9
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H.C.P.No.1468 of 2023
Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for the issuance of a Writ of Habeas Corpus to call for the
records relating to the Detention Order vide Memo
No.256/BCDFGISSSV/2023 dated 26.06.2023, passed by the second
respondent and quash the same and direct the respondents herein to produce
the petitioner's son namely Jayaseelan son of Baskar, aged 31 years, (who is
presently under going detention in the Central Prison, Puzhal), before this
Court and set him at liberty.
For Petitioner : Mr.N.Arun Kumar
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
assisted by
Mr.C.Aravind
ORDER
(Order of the Court was made by S.S. SUNDAR, J.)
The petitioner, brother of the detenu , has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
26.06.2023 slapped on his brother, branding him as "Goonda" under the
Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand
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Offenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14
of 1982].
2.Heard the learned counsel for the petitioner and the learned
Additional Public Prosecutor appearing for the respondents.
3.Though several grounds are raised in this petition, the learned
counsel for the petitioner focussed mainly on the ground that the subjective
satisfaction arrived at by the Detaining Authority that the detenu is likely to
be released on bail suffers from non-application of mind. In the Grounds of
Detention, the Detaining Authority has simply observed that “the
Sponsoring Authority has stated that he came to understand that
Thiru.Jayarajan @ Rajan's relative are taking steps to take him out on bail
in G-2 Periyamedu Police Station Crime Nos.114/2023 and 115/2023 cases
by filing bail applications before the appropriate Court”. The Special
Report of the Sponsoring Authority is not dated. Further, the statement of
the relatives of the detenu that they are planning to file bail application to
bring out the detenu on bail, is also not dated. Hence, the learned counsel
for the petitioner raised a bona fide doubt as to when these statements were
obtained from the relatives of the detenu and as to the date on which the
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Special Report was sent by the Sponsoring Authority to the Detaining
Authority. The learned counsel further pointed out that, unless the Special
Report of the Sponsoring Authority is immediately before the Detention
Order, it may not have relevance and hence, the subjective satisfaction of
the Detaining Authority based on these undated documents, would vitiate
the Detention Order.
4.It is seen from records that the Special Report of the Sponsoring
Authority is not dated. Further, the statements obtained by the Sponsoring
Authority from the relatives of the detenu, enclosed in the Booklet, stating
that they are planning to file bail application to bring out the detenu on bail,
are also not dated. On a perusal of the Grounds of Detention, it is seen that,
in Para No.4, the Detaining Authority has stated that the Sponsoring
Authority has stated that he came to understand that the relatives of the
detenu are taking steps to take him out on bail in the ground case by filing
bail applications before the appropriate Court, and has arrived at the
subjective satisfaction that the detenu is likely to be released on bail. When
the statements obtained by the Sponsoring Authority from the relatives of
the detenu stating that they are planning to file bail application to bring out
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the detenu on bail, are not dated and even the Special Report of the
Sponsoring Authority is not dated, the veracity of the Report becomes
doubtful. The compelling necessity to detain the detenu would also depend
on when the Sponsoring Authority has sent his Report. In the absence of the
report, the compelling necessity to detain, becomes suspect. Hence, this
Court is of the view that the subjective satisfaction arrived at by the
Detaining Authority based on such undated materials, suffers from non-
application of mind.
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. 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 paragraphs No.10 and 11 of the said judgment of the
Hon'ble Supreme Court:-
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“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.
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.''
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6.In view of the ratio laid down by the Hon'ble Supreme Court and in
view of the 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 in
Memo.No.256/BCDFGISSSV/2023, dated 26.06.2023, 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.
(S.S.S.R., J.) (S.M., J.)
24.11.2023
mkn/AP
Internet : Yes
Index : Yes / No
Neutral Citation : Yes / No
https://www.mhc.tn.gov.in/judis
To
1.The Secretary,
State of Tamil Nadu,
Home, Prohibition and Excise Department,
Fort St. George, Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai,
Office of the Commissioner of Police (Goondas Section)
Vepery, Chennai.
3.The Superintendent of Police,
Central Prison, Puzhal,
Chennai.
4.The Inspector of Police,
G-2, Periyamedu Police Station,
Chennai.
5.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.S. SUNDAR, J.
and
SUNDER MOHAN, J.
mkn/AP
24.11.2023
https://www.mhc.tn.gov.in/judis
