Madras High Court
Anthony Prathap vs The Secretary To Government on 28 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.1431/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 28.11.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1431/2023
Anthony Prathap .. Petitioner
Versus
1.The Secretary to Government
Home, Prohibition and Excise Department
Secretariat, Chennai-9.
2.District Collector and District Magistrate
of Tiruvannamalai District, Tiruvannamalai.
3.The Superintendent of Police
Tiruvannamalai District, Tiruvannamalai.
4.The Superintendent of Prison
Central Prison, Vellore-2.
5.The Inspector of Police
All Women Police Station
Tiruvannamalai Rural & District. .. Respondents
1
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HCP.No.1431/2023
Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for a Writ of Habeas Corpus to call for the records in
connection with the order of detention passed by the 2nd respondent dated
30.06.2023 in DO.No.69/2023-C2 petitioner /detenu Anthony Prathap,
male, aged 44 years, son of Mariyanathan, who is confined at Central
Prison, Vellore and set aside the same and direct the respondents to produce
the detenu before this Court and set him at liberty.
For Petitioner : Mr.D.Balaji
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.]
(1)The petitioner, detenu herein, has come forward with this petition
challenging the detention order passed by the 2nd respondent dated
30.06.2023 slapped on him, branding him as "Sexual Offender" under the
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 the petition, the learned counsel for
the petitioner contended that the similar case relied on by the Detaining
Authority to arrive at the subjective satisfaction that the detenu is likely
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to be released on bail in the ground case, is not similar as the similar case
relied on by the Detaining Authority in paragraph No.5 and the order
furnished in page No.117 of the Booklet are entirely different. Hence, the
similar case cited to arrive at the subjective satisfaction, is not similar and
placing reliance on such order shows the non-application of mind on the
part of the Detaining Authority.
(4)On a perusal of the Grounds of Detention, in particular, paragraph No.5,
it is seen that the Detaining Authority had relied upon the order of bail in
similar case in Cr.MP.No.1382/2013 for the offences u/s.376 and 506[ii]
IPC, passed by the learned District and Sessions Judge, Tiruvannamalai
on 10.05.2013. However, a perusal of the Booklet in page No.117, would
reveal that the order passed by this Court in Crl.OP.No.20825/2012 for
the offence under NDPS Act, has been enclosed. Therefore, the facts in
the order relied upon by the Detaining Authority are not similar to the
facts on hand. It is not known as to why such extraneous material is
supplied in the Booklet. This is bound to confuse the detenu and deny
the right to make effective representation. It is in the said circumstances,
this Court finds that the subjective satisfaction arrived at by the Detaining
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Authority to hold that the detenu is likely to be released on bail in the
ground case by relying upon the said similar case, 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 considered a case where it is stated that in the grounds
of detention that relatives of detenu are taking action to take him on bail
in the criminal case in which the detenu was in remand and that in similar
case, bail was granted by Courts. Since no details had been given about
the alleged similar cases in which bail was allegedly granted by the Court
concerned, it is held by Hon'ble Supreme Court that in the absence of
details, the statement which is mere ipse dixit, cannot be relied upon and
that itself is sufficient to 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 in the
decision cited supra and in view of the aforesaid reason, 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 dated
30.06.2023 in DO.No.69/2023-C2 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.]
28.11.2023
AP
Internet: Yes
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To
1.The Secretary to Government
Home, Prohibition and Excise Department
Secretariat, Chennai-9.
2.District Collector and District Magistrate
of Tiruvannamalai District, Tiruvannamalai.
3.The Superintendent of Police
Tiruvannamalai District, Tiruvannamalai.
4.The Superintendent of Prison
Central Prison, Vellore-2.
5.The Inspector of Police
All Women Police Station
Tiruvannamalai Rural & District.
6.The Public Prosecutor
High Court, Madras.
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S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
AP
28.11.2023
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