Madras High Court

Bargathnisha vs State Of Tamil Nadu Represented on 2 January, 2024

Author: M.S.Ramesh

Bench: M.S.Ramesh

H.C.P.No.1766 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.01.2024

CORAM :

THE HONOURABLE MR. JUSTICE M.S.RAMESH
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN

H.C.P.No.1766 of 2023

Bargathnisha ... Petitioner

Vs.

1. State of Tamil Nadu represented
By Additional Chief Secretary to Government,
Home, Prohibition and Exercise Department,
Fort St. George, Chennai 600 009.
2. The Commissioner of Police,
O/o. The Commissioner of Police (Goondas Section)
Avadi City, Avadi,
Chennai 600 054.
3. The Inspector of Police, (Crime),
T-7, Tank Factory Police Station,
Avadi City, Avadi,
Chennai 600 054.
4. The Superintendent of Prison,
Central Prison, Puzhal,
Chennai 600 066. ... Respondents
Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying for the issuance of a Writ of Habeas Corpus to call for the

Page 1 of 8

https://www.mhc.tn.gov.in/judis
H.C.P.No.1766 of 2023

records relating to the detention order passed by the 2nd respondent
pertaining to the order made in BCDFGISSSV No.195/2023, dated
09.08.2023 is detaining the detenu under 2(F) of Tamil Nadu Act of 1982, as
a Goonda and quash the same and direct the respondents to produce the
detenu Sibi, S/o.Babu, aged about 30 years who is detained at the Central
Prison, Puzhal, Chennai, before this Hon'ble Court and set him at Liberty.

For Petitioner : Mr.P.Sundararajan
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
assisted by
Mr.C.Aravind

ORDER

(Order of the Court was made by M.S.RAMESH, J.)

The petitioner, wife of the detenu Sibi, aged 30 years, S/o.Babu, has

come forward with this petition challenging the detention order passed by

the 2nd respondent dated 09.08.2023 slapped on her husband, branding him

as "Goonda" under the Tamil Nadu Prevention of Dangerous Activities of

Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders,

Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders,

Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14 of 1982].

https://www.mhc.tn.gov.in/judis

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 this petition, the learned

counsel for the petitioner focussed mainly on the ground that the subjective

satisfaction of the Detaining Authority that the relatives of the detenu are

taking steps to take out the detenu on bail, suffers from non-application of

mind, as the statement under 161 Cr.P.C. said to have been made by the

petitioner before the Sponsoring Authority is not dated. Hence, the learned

counsel for the petitioner raised a bona fide doubt as to when this statement

was obtained from the petitioner. The learned counsel further pointed out

that, unless the statement relied upon by the Sponsoring Authority is

immediately before the Detention Order, it may not have relevance and

hence, the subjective satisfaction of the Detaining Authority based on this

undated statement, would vitiate the Detention Order.

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4.It is seen from records that the statement obtained by the

Sponsoring Authority from the petitioner, enclosed in the Booklet, stating

that she is planning to file bail application to bring out the detenu on bail, is

not dated. On a perusal of the Grounds of Detention, it is seen that, in Para

No.4, the Detaining Authority has observed that the Sponsoring Authority

has stated that he came to understand that the relatives of the detenu are

taking steps to take him out on bail in the ground case by filing bail

applications before the appropriate Court, and has arrived at the subjective

satisfaction that the detenu is likely to be released on bail. When the

statement obtained by the Sponsoring Authority from the relative of the

detenu stating that she is planning to file bail application to bring out the

detenu on bail is not dated, the veracity of such statement becomes doubtful.

The compelling necessity to detain the detenu would also depend on when

the statement was obtained. In the absence of the date, the compelling

necessity to detain, becomes suspect. Hence, this Court is of the view that

the subjective satisfaction of the Detaining Authority based on such undated

material, suffers from non-application of mind.

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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. 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

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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.In view of the ratio laid down by the Hon'ble Supreme Court and in

view of the aforesaid facts, 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 in

No.195/BCDFGISSSV/2023, dated 09.08.2023, is hereby set aside and the

Habeas Corpus Petition is allowed. The detenu viz., Sibi, aged 30 years,

https://www.mhc.tn.gov.in/judis

S/o.Babu, 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] 02.01.2024 pvs

Internet : Yes Index : Yes / No Neutral Citation : Yes / No

1. The Additional Chief Secretary to Government, State of Tamil Nadu Home, Prohibition and Exercise Department, Fort St. George, Chennai 600 009.