I.Khaja Moideen @ John Basha vs State Represented By Its
2024 Latest Caselaw 37 Mad

Citation : 2024 Latest Caselaw 37 Mad
Judgement Date : 2 January, 2024

Madras High Court

I.Khaja Moideen @ John Basha vs State Represented By Its on 2 January, 2024

Author: M.S.Ramesh

Bench: M.S.Ramesh

                                                                        H.C.P.No.2195 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.2195 of 2023

                     I.Khaja Moideen @ John Basha                            ... Petitioner

                                                          Vs.

                     1.State Represented by its
                       Home Secretary to the Govt. Of Tamil Nadu,
                       Home Prohibition and Excise Department,
                       Fort St. George,
                       Chennai 600 009.

                     2.The Commissioner of Police,
                       Greater Chennai,
                       Chennai 600 007.

                     3.The Inspector of Police,
                       T-4, Maduravoyal Police Station,
                       Maduravoyal, Chennai 600 095.

                     4.The Superintendent of Police,
                       Central Prison,
                       Puzhal.                                         ... Respondents



                     Page 1 of 8


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                                                                                  H.C.P.No.2195 of 2023

                     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
                     records in relating to the order of Detention passed by the second
                     respondent dated 07.08.2023 in BCDFGISSSV No.346/2023 against the
                     petitioner, the Detenue Khaja Moideen @ John Basha, Male, aged about 38
                     years, son of Ismail, who is confined at Central Prison, Puzhal and set aside
                     the same and direct the respondents to produce the detenue before this Court
                     and set him at liberty.


                                       For Petitioner        :     Mr.R.Karthik
                                       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, namely Khaja Moideen @ John Basha, S/o.Ismail,

aged 38 years, has come forward with this petition challenging the detention

order passed by the 2nd respondent, dated 07.08.2023 slapped on him,

branding him as "Goonda" under the Tamil Nadu Prevention of Dangerous

Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest

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

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 bail order relied upon by the

Detaining Authority is not similar to the case on hand, by referring to the

fact that in the said petition bail was not granted to the accused therein.

Therefore, the learned counsel submitted that the Detaining Authority has

not applied his mind while expressing his subjective satisfaction that the

detenu is also likely to be released on bail.

4.On a perusal of the Booklet, this Court finds that, in the similar case

relied upon by the Detaining Authority, i.e., C.M.P.No.2785 of 2023, dated

27.12.2022, the accused therein was not granted bail. Hence, this Court is

of the view that the subjective satisfaction of the Detaining Authority that

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the detenu is also likely to be released on bail, by relying upon the aforesaid

similar case, 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 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

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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.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.

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7.Accordingly, the detention order passed by the 2nd respondent, in

No.346/BCDFGISSSV/2023, dated 07.08.2023, is hereby set aside and the

Habeas Corpus Petition is allowed. The detenu viz., Khaja Moideen @ John

Basha, S/o.Ismail, aged 38 years, 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

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