Madras High Court
Hemalatha vs The State Of Tamil Nadu Rep.By on 11 October, 2023
HCP.No.1027/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 11.10.2023
CORAM
THE HONOURABLE MR . JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1027/2023
Hemalatha .. Petitioner
Versus
1.The State of Tamil Nadu rep.by
its Secretary to Government,
Home, Prohibition and Excise Department
Fort St George, Chennai 600 009.
2.The Commissioner of Police
Greater Chennai, Vepery
Chennai 600 007.
3.The Superintendent of Prison
Central Prison, Puzhal, Chennai.
4.The Inspector of Police
J9 Thuraipakkam Police Station
Chennai. .. Respondents
1
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HCP.No.1027/2023
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
leading to the detention of the petitioner's husband Kicha @ Krishnamurthy
son of Suburayan, Male, aged about 34 years, is presently lodged in Central
Prison, Puzhal at Chennai, and has been detained under Act 14/1982 as a
''Goonda'' vide detention order dated 15.05.2023 made in Memo
No.161/BCDFGISSSV/2023 by the 2nd respondent, the Commissioner of
Police, Greater Chennai, Vepery, Chennai 600 007, quash the same and
consequently direct the respondents herein to produce the body and person
of the said detenu before this Court and thereafter set him at liberty from the
Central Prison, Puzhal at Chennai.
For Petitioner : Mr.M.Rajavelu
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
[Order of the Court was made by S.S.SUNDAR, J.]
(1)The petitioner, wife of the detenu Kicha @ Krishnamurthy, aged 34
years, S/o.Suubburayan, has come forward with this petition challenging
the detention order passed by the 2nd respondent dated 15.05.2023
slapped on her husband, 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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HCP.No.1027/2023
(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 raised the following two grounds. Firstly, the inordinate
and unexplained delay in passing the Detention Order and secondly, 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. In the present case,
though the detenu was arrested on 10.04.2023, the Detention Order was
passed only on 15.05.2023.
(4)The Hon'ble Supreme Court in the case of Sushantha Kumar Banik Vs.
State of Tripura and Others reported in AIR 2022 SC 4715, has dealt
with similar situation and has held in paragraph No.21 as follows:-
''In the present case, the circumstances indicate that
the detaining authority after the receipt of the proposal
from the sponsoring authority was indifferent in passing
the order of detention with greater promptitude. The “live
and proximate link” between the grounds of detention and
the purpose of detention stood snapped in arresting the
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HCP.No.1027/2023
detenu. More importantly the delay has not been explained
in any manner & though this point of delay was specifically
raised & argued before the High Court as evident from
Para 14 of the impugned judgment yet the High Court has
not recorded any finding on the same.”
(5)The Hon'ble Supreme Court was persuaded to allow the Appeal filed
before it mainly on the ground that delay in passing the Order of
Detention from the date of the proposal would snap the ''live and
proximate link'' between prejudicial activities and the purpose of
detention. Therefore, failure on the part of the Detaining Authority in
explaining such delay as in the present case also is a valid ground for
quashing the Detention Order.
(6)Further, a perusal of the Grounds of Detention, it is seen that the
Detaining Authority had relied upon the order of bail in a similar case in
Crl.MP.No.377/2023 passed by the learned Principal District and
Sessions Judge, Chengalpattu. However, it is seen that the bail order in
the similar case was obtained during COVID-19 situation and the bail
was granted with a specific reference to COVID-19. It is in the said
circumstances, this Court finds that the subjective satisfaction suffers
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HCP.No.1027/2023
from non-application of mind on the part of the Detaining Authority.
(7)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 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 in similar case in Crl.MP.No.377/2023. From the reading of the
said bail order it is seen that the bail was granted only by taking note of
COVID-19 situation 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. Hence, on the above grounds, the
Detention Order is liable to be quashed.
(8) In view of the aforesaid reasons, the detention order passed by the 2nd
respondent dated 15.05.2023 in BCDFGISSSV No.161/2023 is hereby set
aside and the Habeas Corpus Petition is allowed. The detenu viz., Kicha
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HCP.No.1027/2023
@ Krishnamurthy, S/o.Subburayan, aged 34 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.]
11.10.2023
AP
To
1.The Secretary to Government,
State of Tamil Nadu
Home, Prohibition and Excise Department
Fort St George, Chennai 600 009.
2.The Commissioner of Police
Greater Chennai, Vepery
Chennai 600 007.
3.The Superintendent of Prison
Central Prison, Puzhal, Chennai.
4.The Inspector of Police
J9 Thuraipakkam Police Station
Chennai.
5.The Public Prosecutor
High Court, Madras.
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HCP.No.1027/2023
S.S.SUNDAR, J.,
AND
SUNDER MOHAN, J.,
AP
H.C.P.No.1027/2023
11.10.2023
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