Madras High Court
Pavithra vs The Additional Chief Secretary To ... on 20 September, 2023
HCP(MD)No.623 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.09.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
H.C.P.(MD)No.623 of 2023
Pavithra .. Petitioner / Wife of the Detenu
Vs.
1.The Additional Chief Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 09.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Theni District,
Theni.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai District. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus, calling for the entire records, connected with
the detention order of the Respondent No.2 in Detention Order No.27/2023
Page 1 of 10
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HCP(MD)No.623 of 2023
dated 10.03.2023 and quash the same and direct the respondents to produce
the body or person of the detenu by name Jeyachandran, son of Karnan,
aged about 26 years, now detained as “Sexual Offender” at Madurai Central
Prison before this Court and set him at liberty forthwith.
For Petitioner : Mr.Samuvel Gunasingh
for Mr.N.Balasubramanian
For Respondents : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by M.S.RAMESH,J.)
The petitioner is the wife of the detenu viz., Jeyachandran, aged about
26 years, S/o.Karnan. The detenu has been detained by the second
respondent by his order in Detention Order No.27/2023 dated 10.03.2023
holding him to be a "Sexual Offender", as contemplated under Section
2(ggg) of Tamil Nadu Act 14 of 1982. The said order is under challenge in
this Habeas Corpus Petition.
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HCP(MD)No.623 of 2023
2. We have heard the learned counsel appearing for the petitioner and
the learned Additional Public Prosecutor appearing for the respondents. We
have also perused the records produced by the Detaining Authority.
3. Though many grounds have been raised in the petition, the learned
counsel for the petitioner focussed his argument on the ground that the
detaining authority was swayed by the fact that a bail petition may be filed
before the competent Court by the detenu or his relatives in future.
4. The learned counsel for the petitioner further submitted that the
subjective satisfaction that has been arrived at by the detaining authority at
Paragraph No.5 of the order is not supported by any materials. Therefore,
the same also suffers from non application of mind.
5. The learned counsel for the petitioner, in order to substantiate the
submissions, relied upon the judgment of the Full Bench of this Court
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HCP(MD)No.623 of 2023
reported in 2005 (2) LW 946 [K.Thirupathi v. District Magistrate and
District Collector, Tiruchirappalli District & another].
6. The learned Additional Public Prosecutor strongly opposed the
Habeas Corpus Petition by filing his counter. It is further submitted that
investigation has been completed in this case and final report has been filed
in S.C.No.43/2023 and the same is pending before the Mahila Court, Theni.
7. Even though several grounds have been raised in the petition filed
before this Court, this Court is inclined to consider the main ground that has
been focussed by the learned counsel for the petitioner.
8. While passing the impugned detention order, the detaining
authority had stated that the detenu is in remand in District Jail, Theni in
connection with Crime No.82/2023 and his remand period was extended
upto 21.03.2023. It is further stated therein that the bail application filed by
the detenu was dismissed, but, however, they have received a secret
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HCP(MD)No.623 of 2023
information that the detenu or his relatives will file bail application again
before the competent Court very soon. Though the source of secret
information may not be disclosed to the petitioner, the information as such
ought to have been disclosed to the petitioner. The non supply of such a
vital information may not be justifiable and hence, the detaining authority
having arrived at the subjective satisfaction becomes questionable. At this
point of time, it will be relevant to take note of the Full Bench judgment,
which has been referred supra.
9. The relevant portions are extracted hereunder:
“24. The detaining authority is required to follow
strictly and scrupulously the forms and rules of law
prescribed in that behalf or by the statutory provision under
which the order of detention is being made after arriving at
a subjective satisfaction. In the event of any deviation or
violation of the statutory provisions or infraction of
constitutional guarantees, the Courts will not hesitate to
quash the orders of detention. Whatever be the jurisdiction
to detain and the slightest infraction of the constitutional
guarantee would lead to the detenu being set at liberty.
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HCP(MD)No.623 of 2023
25. It is by now well settled that in all detention laws,
the orders of detention and its continuance of detention
should be in conformity with Article 22 of the Constitution of
India and slightest infraction of the Constitutional
protection enshrined therein would be a valid ground to set
the detenu at liberty.
26. There must be cogent material before the
Authority passing the detention order for inferring that the
detenu was likely to be released on bail. This inference must
be drawn from material on record and must not be the ipse
dixit of the Authority passing the detention order.
27. In the case of a person in custody a detention
order can validly be passed if the authority passing the
order is aware of the fact that he is actually in custody; if he
has reason to believe on the basis of reliable material placed
before him--
(a) that there is a real possibility of his being released on
bail, and
(b) if it is felt essential to detain him to prevent him from so
doing. If the authority passes an order after recording its
satisfaction in this behalf, such an order cannot be struck
down on the ground that the proper course for the authority
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HCP(MD)No.623 of 2023
was to oppose the bail and if bail is granted notwithstanding
such opposition to question it before a higher Court.
28. It is neither possible nor advisable catalogue the
types of materials which can form the basis of a detention
order under the Act. That will depend on the facts and
situation of a case. That is why there is no provision in the
Act in that regard and the matter is left to the discretion of
the detaining authority. However, the facts stated in the
materials relied upon should be true and should have a
reasonable nexus with the purpose for which the order is
passed.”
10. It is clear from the above that where the detenu is in custody and
his bail petition was dismissed and there are no materials to show that he is
taking steps to file another bail petition by himself or through his relatives
or it was based merely on the presumption made by the detaining authority,
the same reflects non application of mind on the part of the detaining
authority.
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HCP(MD)No.623 of 2023
11. In view of the above, the detention order suffers from non
application of mind and the same is liable to be interfered with by this
Court.
12. In the result, the Habeas Corpus Petition is allowed and the order
of detention in Detention Order No.27/2023 dated 10.03.2023 passed by the
second respondent is set aside. The detenu, viz., Jeyachandran, S/o.Karnan,
aged about 26 years, is directed to be released forthwith unless his detention
is required in connection with any other case.
(M.S.R.,J.) (M.N.K.,J.)
20.09.2023
NCC : Yes / No
Index : Yes / No
Lm
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HCP(MD)No.623 of 2023
To
1.The Additional Chief Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 09.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Theni District,
Theni.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai District.
4.The Joint Secretary to Government,
Public (Law and Order),
Fort St.George, Chennai.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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HCP(MD)No.623 of 2023
M.S.RAMESH,J.
and
M.NIRMAL KUMAR,J.
Lm
H.C.P.(MD)No.623 of 2023
20.09.2023
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