Madras High Court
G.Balamurali vs The Additional Chief Secretary on 29 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
HCP.No.1998/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 29.11.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1998/2023
G.Balamurali .. Petitioner
Versus
1.The Additional Chief Secretary
Home, Prohibition and Excise Department of Tamil Nadu
St George Fort, Chennai 600 009.
2.The Commissioner of Police
O/o.The Commissioner,
Salem, Salem District 636 006.
3.The State rep.by
Inspector of Police
sooramangalam Police Station
Salem District.
4.The Superintendent
Special Prison for Women
Coimbatore. .. Respondents
1
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HCP.No.1998/2023
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
connected with the Impugned Detention Order passed by the 2nd respondent
vide order in CMP.No.71/LTO/Salem City/2023 dated 27.07.2023 and
quash the same and direct the respondents to produce the body or person of
the detenu by name Divya, wife of Balamurali, aged about 36 years now
detainedas ''Immoral Traffic Offender'' at Special Prison for Women,
Coimbatore, before this Court and set her at liberty forthwith.
For Petitioner : Mr.M.Jothikumar
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, husband of the detenue herein, has come forward with this
petition challenging the detention order passed by the 2nd respondent
dated 27.07.2023 slapped on his wife, branding her as "Immoral Traffic
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
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the petitioner contended that the bail order in the similar case relied on by
the Detaining Authority to arrive at the subjective satisfaction that the
detenu is likely to be released on bail, was obtained during COVID-19
situation and that 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, it is seen that the Detaining
Authority had relied upon the order of bail in similar case in
CMP.No.976/2020 passed by the learned Principal Sessions Judge,
Salem. However, in the Booklet, in particular, page No.86, it is seen that
the bail order in the similar case was obtained during COVID-19 situation
and bail was granted to the accused therein with a specific reference to
COVID-19. It is in the said circumstances, this Court finds that the
subjective satisfaction arrived at by the Detaining Authority to hold that
the detenu is likely to be released on bail, 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
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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:-
''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
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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 aforesaid facts, the detention order passed by the 2nd
respondent dated 27.07.2023 in CMP.No.71/LTO/Salem City/2023 is
hereby set aside and the Habeas Corpus Petition is allowed. The detenue
is directed to be set at liberty forthwith unless she is required in
connection with any other case.
[SSSRJ] [SM J]
29.11.2023
AP
Internet: Yes
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To
1.The Additional Chief Secretary
Home, Prohibition and Excise Department of Tamil Nadu
St George Fort, Chennai 600 009.
2.The Commissioner of Police
O/o.The Commissioner,
Salem, Salem District 636 006.
3.The State rep.by
Inspector of Police
Sooramangalam Police Station
Salem District.
4.The Superintendent
Special Prison for Women
Coimbatore.
5.The Public Prosecutor
High Court, Madras.
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S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
AP
29.11.2023
https://www.mhc.tn.gov.in/judis
