Madras High Court
B.Vaishnavi vs The Secretary To Government on 1 August, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
H.C.P.No.988 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.988 of 2024
B.Vaishnavi ... Petitioner/wife of the detenue
Vs.
1.The Secretary to Government,
Home, Prohibition & Excise Department,
Secretariat,
Fort St. George,
Chennai-600 009.
2.The Commissioner of Police,
Greater Chennai,
Office of the Commissioner of Police,
Vepery, Chennai.
3.The Superintendent of Police,
Central Prison,
Puzhal, Chennai.
4.The Inspector of Police,
K-11, CMBT (crime),
Prohibition Enforcement Wing,,
Anna Nagar P.S, Chennai. ... Respondents
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Page 1 of 10
H.C.P.No.988 of 2024
Prayer : Habeas Corpus Petition filed under Article 226 of the
Constitution of India, praying for the issuance of Writ of Habeas Corpus,
calling for the records pertaining to the order of detention passed by the
second respondent in his proceedings No.379/BCDFGISSSV/2024, dated
17.04.2024 and quash the same as illegal and produce the detenue,
namely Boobalan, S/o.Murugan, aged 23 years, Drug Offender, now he is
confined at Central prison, Puzhal-II, Chennai, before this Court and set
him at liberty.
For Petitioner : Mr.C.Raja
For Respondents : Mr.A.Gokulakrishnan
Additional Public Prosecutor
ORDER
M.S.RAMESH, J.
and
SUNDER MOHAN, J.
The petitioner herein who is the wife of the detenue viz., Boobalan,
S/o.Murugan, aged 23 years, confined at Central prison, Puzhal-II,
Chennai, has come forward with this petition challenging the detention
order passed by the second respondent dated 17.04.2024 slapped on her
husband, branding him as "Drug Offender" under the Tamil Nadu
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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].
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 pointed out that the Detaining Authority has not
applied its mind while expressing its subjective satisfaction that the
detenu is also likely to be released on bail. It is his submission that the
case relied upon by the Detaining Authority is not similar to the present
case, as the bail was granted in favour of the accused therein by recording
the fact that there were no previous cases as against the accused therein.
4. Upon a perusal of the Booklet in Volume-II, this Court finds that
the detaining authority has relied on an order passed in Crl.M.P.No.1414
of 2021 dated 04.06.2021, to arrive at the satisfaction that the detenue is
likely to be released on bail. In that case, the accused had no previous
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cases; however, as per the remand report furnished to the detenue in the
booklet, the detenue has two previous cases. Therefore, the order relied
upon by the detaining authority cannot be said to be similar. The
subjective satisfaction is vitiated and 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 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. 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 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
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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.”
6. The learned Additional Public Prosecutor placed reliance on a
recent decision of the Hon'ble Full Bench of this Court in the case of
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'N.Fathima @ Laila Vs. The State of Tamil Nadu' passed in
H.C.P.(MD) No.1121 of 2022 and batch., and submitted that when the
similar case relied upon in the grounds of detention by the authority for
drawing inference that the detenu is likely to come out on bail, is not
similar to the ground case for which he has been detained, the same will
not be fatal to the detention order, as the said ground would be severable
in terms of Section 5-A of the Tamil Nadu Act 14 of 1982.
7. However, in the recent decision in 'Jayalakshmi Vs. The State
of Tamil Nadu' [HCP No.330 of 2024 dated 16.04.2024], we had
observed that the observations made by the Hon'ble Full Bench in that
regard, cannot be reconciled with the judgments of the Hon'ble Supreme
Court. The relevant portions of the order read as follows:-
“9. Firstly, that was not the question referred to
the Hon'ble Full Bench for its consideration. The
observations in this regard, relating to Section 5-A of
the Tamil Nadu Act 14 of 1982, in our view, are therefore
not binding and cannot be treated as ratio decidendi. In
the case of ADM Jabalpur Vs. Shivkant Shukla reported
in (1976) 2 SCC 521, the Hon'ble Supreme Court had
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held that a decision on a point, not necessary for the
purpose of, or which does not fall to be determined in
that decision, becomes an obiter dictum. Hence, such a
point in the decision, would not be an authority for a
proposition which did not fall for its consideration, as
held in the case of Zee Telefilms Ltd. And Another Vs.
Union of India reported in (2005) 4 SCC 649.
.....
12. Therefore, even though in Ankit Ashok Jalan's
case [cited supra], the observations in Rekha's case
[cited supra] were distinguished on facts, the
requirement to record the satisfaction that the detenu is
likely to come out on bail, was reiterated. This
requirement is mandated when detention orders are
clamped on persons who are in custody. When such a
satisfaction is a pre-requisite, to pass a detention order
against a person in custody any infirmity in the
satisfaction would certainly vitiate the detention order.
Such being the legal position enunciated by the Hon'ble
Supreme Court, the observations made by the Hon'ble
Full Bench that a defect in the said satisfaction would
not vitiate the detention order, cannot be reconciled with
the judgments of the Hon'ble Supreme Court.
.....
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14. As stated earlier in order to pass a detention
order against a person in custody, the detaining
authority must be satisfied that a detenu is likely to be
released on bail and on being released on bail, is likely
to indulge in same prejudicial activities. When this
satisfaction is sine qua non, any defect in such
satisfaction would render the detention order illegal.
Hence, the observations made by the Hon'ble Full Bench
of this Court, regarding severability of the ground under
Section 5-A of the Tamil Nadu Act 14 of 1982, cannot be
reconciled with the aforesaid judgments of the Hon'ble
Supreme Court, which are binding on us. However, the
judgment of the Hon'ble Full Bench is certainly an
authority for the proposition that non supply of
materials relating to the similar case relied upon by the
detaining authority, would not vitiate the detention
order. 15. In the present case, there is a defect in the
subjective satisfaction.”
8. The aforesaid extracts are self explanatory. As such, the
objections of the learned Additional Public Prosecutor in this regard,
would not be sustainable.
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9. Accordingly, the detention order passed by the second
respondent in No.379/BCDFGISSSV/2024, dated 17.04.2024, is hereby
set aside and the Habeas Corpus Petition is allowed. The detenu viz.,
Boobalan, S/o.Murugan, aged 23 years, confined at Central prison,
Puzhal-II, Chennai, is directed to be set at liberty forthwith unless he is
required in connection with any other case.
[M.S.R., J] [S.M., J]
01.08.2024
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
Anu
Note :- Registry shall forthwith return the booklet
containing the materials, on which, the
Detaining Authority has placed reliance,
to the petitioner/counsel for the petitioner
with due acknowledgment.
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M.S.RAMESH, J.
and
SUNDER MOHAN, J.
Anu
To
1.The Secretary to Government,
Home, Prohibition & Excise Department,
Secretariat,
Fort St. George,
Chennai-600 009.
2.The Commissioner of Police,
Greater Chennai,
Office of the Commissioner of Police,
Vepery, Chennai.
3.The Superintendent of Police,
Central Prison,
Puzhal, Chennai.
4.The Inspector of Police,
K-11, CMBT (crime),
Prohibition Enforcement Wing,,
Anna Nagar P.S, Chennai.
5.The Joint Secretary,
Law and Order Department,
Secretariat, Chennai.
6.The Public Prosecutor,
High Court, Madras.
01.08.2024
https://www.mhc.tn.gov.in/judis
