Madras High Court
Ajithkumar @ Surulimuthu vs The Secretary To Government on 28 November, 2023
Author: S.S. Sundar
Bench: S.S. Sundar
HCP.No.1904/2023
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.1904/2023
Ajithkumar @ Surulimuthu ... Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St George, Chennai – 600 009.
2.The District Magistrate & The District Collector
Tiruppur District, Tiruppur.
3.The Superintendent of Prison
Central Prison, Coimbatore
Coimbatore District.
4.State rep.by its
The Inspector of Police
PEW Tiruppur, Tiruppur District. ... Respondents
Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for a Writ of Habeas Corpus calling for the entire records
1
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HCP.No.1904/2023
relating to the petitioner under Tamil Nadu Act 14 of 1982 vide detention
order dated 28.06.2023 on the file of the 2nd respondent herein made in
proceedings Memo Cr.MP.No.25/Drug Offender/2023, quash the same as
illegal and consequently direct the respondents herein to produce the
petitioner namely Ajithkumar @ Surulimuthu, son of [late] Raja, aged 28
years before this Court and set the petitioner at liberty from detention, now
the petitioner detained at Central Prison, Coimbatore.
For Petitioner : Mr.W.Camyles Gandhi
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
assisted by Mr.Aravind. C
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
14.06.2023 slapped on him, branding him as "Drug 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.
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(3)Though several points have been raised by the learned counsel for the
petitioner, the detention order is liable to be quashed on the ground that
the subjective satisfaction of the Detaining Authority regarding the
possibility of the detenu coming out on bail by relying upon the bail order
granted to the accused in a similar case, suffers from non-application of
mind.
(4)It is seen that in paragraph No.5 of the Grounds of Detention, the
Detaining Authority had observed that though the detenu was granted bail
in the ground case by the Special Court for EC Act Cases, Coimbatore, on
31.05.2023 in Crl.MP.No.1636/2023, he was still under judicial custody
on the date of passing of the Detention Order since the detenu had not
executed the sureties. The Detaining Authority also recorded the fact that
the remand period was extended upto 03.07.2023. However, the
Detaining Authority has not recorded any statement as to the subjective
satisfaction regarding the possibility of the detenu coming out on bail in
the ground case. Hence, the order of detention is vitiated on the ground of
total non application of mind on the part of the Detaining Authority.
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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 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. In the instant
case, the detenu was released on bail in the ground case by the Special
Court for EC Act Cases, Coimbatore, in Crl.MP.No.1636/2023 on
31.05.2023. However, he was still under judicial custody as on the date
of passing of Detention Order as he as not executed sureties. The
Detaining Authority also not recorded the factum of possibility of the
detenu coming out on bail in the ground case by executing sureties. This
indicates non-application of mind on the part of the Detaining Authority.
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
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sustained.''
(6)In view of the ratio laid down by the Hon'ble Supreme Court in the
aforesaid judgment and in view 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
28.06.2023 in Cr.MP.No.25/Drug Offender2023, 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.
[SSSRJ] [SMJ]
28.11.2023
AP
Internet : Yes
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To
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St George, Chennai – 600 009.
2.The District Magistrate & The District Collector
Tiruppur District, Tiruppur.
3.The Superintendent of Prison
Central Prison, Coimbatore
Coimbatore District.
4.The Inspector of Police
PEW Tiruppur, Tiruppur District.
5.The Public Prosecutor,
High Court, Madras.
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S.S. SUNDAR, J.,
and
SUNDER MOHAN, J.,
AP
28.11.2023
https://www.mhc.tn.gov.in/judis
