Madras High Court

D.Sumathi vs The Secretary To Government on 24 November, 2023

Author: S.S. Sundar

Bench: S.S. Sundar

                                                                          H.C.P.No.1687 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.1687 of 2023

                     D.Sumathi                                                 ... Petitioner

                                                         Vs.

                     1.The Secretary to Government,
                       Home, Prohibition and Excise Department,
                       Secretariat, Fort St. George, Chennai – 600 009.

                     2.The Commissioner of Police,
                       Greater Chennai,
                       Office of the Commissioner of Police,
                       Vepery, Chennai – 600 007.

                     3.The Superintendent of Police,
                       Central Prison,
                       Puzhal, Chennai.

                     4.The Inspector of Police,
                       G2, Periyamedu Police Station,
                       Chennai.                                            ... Respondents




                     Page 1 of 9


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                                                                                   H.C.P.No.1687 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 pertaining to the order of detention passed by the second respondent
                     in his proceedings in No.253/BCDFGISSSV/2023, dated 26.06.2023 and
                     quash the same as illegal and produce the detenue, namely Madhavan @
                     Alavandan, S/o. Dinakaran, aged 22 years, now he is confined in Central
                     Prison, Puzhal II, Chennai before this Court and set him at liberty.


                                       For Petitioner         :     Mr.C.Raja
                                       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, mother of the detenu has come forward with this

petition challenging the detention order passed by the 2nd respondent dated

26.06.2023 slapped on her son, branding him as "Goonda" under the Tamil

Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders,

Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders,

Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14 of 1982].

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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.Mahdavan @ Alavandan's relative are taking steps to take him out on

bail in G-2 Periyamedu Police Station Crime Nos.115/2023 and 116/2023

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 Special Report was sent by the Sponsoring Authority to the

Detaining Authority. The learned counsel further pointed out that, unless the

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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

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

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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:-

“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

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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.''

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.

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7.Accordingly, the detention order passed by the 2nd respondent in

Memo.No.253/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

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