Madras High Court
Sumathi vs The Secretary To Government on 24 November, 2023
Author: S.S. Sundar
Bench: S.S. Sundar
H.C.P.No.1958 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.1958 of 2023
Sumathi ... Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St. George, Chennai – 9.
2.The Commissioner of Police,
Salem City, Salem District.
3.The Superintendent of Prison,
Central Prison – Salem,
Salem District.
4.State rep. By its
The Inspector of Police,
Kitchipalayam Police Station,
Salem District. ... Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of habeas corpus to call for the
entire records relating to the petitioner's grandson's detention
under Tamil Nadu Act 14 of 1982 vide detention order dated
26.06.2023 on the file of the second respondent made in
proceedings Memo C.M.P. No.61/Goonda/Salem City/2023, quash
the same as illegal and consequently direct the respondents herein
to produce the petitioner's grandson namely Dinesh @
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Page 1 of 7
H.C.P.No.1958 of 2023
Dineshkumar @ Poonaiyan, S/o.Selvam, aged 23 years before this
Court and set the petitioner's grandson at liberty from detention,
now the petitioner's grandson detained at Central Prison, Salem.
For Petitioner : Mr.W.Camyles Gandhi
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, grandmother of the detenu Dinesh @ Dinesh
Kumar @ Poonaiyan, has come forward with this petition
challenging the detention order passed by the second respondent
dated 26.06.2023 slapped on her grandson, 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].
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 grounds have been raised in the petition,
the learned counsel for the petitioner submitted that similar case
relied upon by the detaining authority is not similar as bail was
granted to the petitioner in the similar case in Crl.M.P.No.3749 of
2011 vide dated 22.12.2011 after recording that the petitioner
therein was in jail for 74 days and that the prosecution has not
raised any serious objection. Taking note of the fact that the
investigation was over, bail was granted to the petitioner therein.
4. In paragraph 4 of the grounds of detention, the detaining
authority has stated that there is a real possibility of the detenu
coming out on bail in the ground case, since, in a similar case, bail
was granted to the accused therein, by relying upon an order
passed by the Principal Sessions Judge, Salem, in Crl.M.P.No.3749
of 2011, dated 22.12.2011. On a perusal of page Nos.108 and 109
of the Booklet, this Court finds that bail was granted in the said
case after recording that the petitioner therein is in jail for 74 days
and no serious objection was raised by the prosecution for grant of
bail and not on merits. Therefore, it is not a similar case and the
subjective satisfaction of the detaining authority regarding the
possibility of the detenu coming out on bail suffers from non-
application of mind, which vitiates the detention order.
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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 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 by referring to a bail
order granted to an accused in a similar case in Crl.M.P.No.3749 of
2011, dated 22.12.2011. However, bail was granted in the said
case on the ground that accused therein is in jail for 74 days and
the prosecution has not raised serious objection for grant of bail
and therefore, the subjective satisfaction of the Detaining Authority
that the detenu is likely to be released on bail suffers from non-
application of mind. 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
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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.''
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. In view of the aforesaid reason, the detention order
passed by the second respondent dated 26.06.2023 in C.M.P.
No.61/Goonda/Salem City/2023, is hereby set aside and the
Habeas Corpus Petition is allowed. The detenu viz., Dinesh @
Dinesh Kumar @ Poonaiyan, S/o.Selvam, aged about 23 years, 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
Index : Yes / No
Neutral Citation : Yes / No
mmi
To
1.The Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St. George, Chennai – 9.
2.The Commissioner of Police,
Salem City, Salem District.
3.The Superintendent of Prison,
Central Prison – Salem,
Salem District.
4.The Inspector of Police,
Kitchipalayam Police Station,
Salem District.
5.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.S. SUNDAR, J.
and
SUNDER MOHAN, J.
mmi
24.11.2023
https://www.mhc.tn.gov.in/judis
