Madras High Court

Mamta Sirve vs State Of Tamil Nadu on 1 July, 2024

Author: M.S.Ramesh

Bench: M.S. Ramesh

                                                                               H.C.P.No.1044 of 2024

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 01.07.2024

                                                   CORAM :

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

                                              H.C.P.No.1044 of 2024

                     Mamta Sirve                           ... Petitioner / wife of the detenue

                                                       Vs.

                     1.State of Tamil Nadu
                     Rep. by the Secretary,
                     Home, Prohibition and Excise Department,
                     Fort St. George,
                     Chennai-600 009.

                     2.The Commissioner of Police,
                     Greater Chennai,
                     Office of the Commissioner of Police (Goondas Section),
                     Vepery,
                     Chennai-600 077.

                     3.The Superintendent of Prison,
                     Central Prison,
                     Puzhal,
                     Chennai District.

                     4.The Inspector of Police
                     R-9, Valasaravakkam Police Station,
                     Chennai District.                                   ... Respondents



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                     Page 1 of 11
                                                                                   H.C.P.No.1044 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 relating to the detention order vide Memo
                     No.128/BCDFGISSSV/2024 dated 24.02.2024, passed by the second
                     respondent and quash the same and direct the respondents herein to
                     produce the petitioner's husband namely Omprakash, S/o.Amarchand,
                     aged 36 years, confined at Central Prison, Puzhal, Chennai, before this
                     Court and set him at liberty.

                                        For Petitioner          : Mr.R.Parthiban

                                        For Respondents         : Mr.A.Gokulakrishnan
                                                                  Additional Public Prosecutor


                                                           ORDER

M.S.RAMESH, J.

and SUNDER MOHAN, J.

The petitioner herein is the wife of the detenue viz., Omprakash,

S/o.Amarchand, aged 36 years, confined at Central Prison, Puzhal,

Chennai, has come forward with this petition challenging the detention

order passed by the second respondent dated 24.02.2024 slapped on her

husband, branding him as "Goonda" contemplated under the Tamil Nadu

Prevention of Dangerous Activities of Bootleggers, Cyber law offenders,

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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

offences charged as against the accused therein are different compared to

the case on hand.

4. On a perusal of the Booklet, particularly in Page 26 of Volume I,

a copy of the similar case in Crl.M.P.No.5203 of 2023, dated 03.11.2023

relied upon by the detaining authority is available, in which the accused

therein was charged with the offences under Section 24(1) of COTP Act

and Section 328 IPC, whereas the detenue herein had been charged with

the offences under Sections 272, 273, 328 IPC & 6 r/w 24(1) COTP Act, https://www.mhc.tn.gov.in/judis

7 r/w 9(ii) of Tamil Nadu Prohibition of Smoking and Spitting Act, 2002

and 77 of Juvenile Justice Act (Care and Protection of Children) Act,

2015 as against the detenue. Considering the nature of the bail order in

the similar case relied upon by the Detaining Authority and the case on

hand, this Court finds that the subjective satisfaction of the Detaining

Authority that the detenu is also likely to be released on bail, 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

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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 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.”

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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

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

in (1976) 2 SCC 521, the Hon'ble Supreme Court had 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 128/BCDFGISSSV/2024, dated 24.02.2024, is hereby set

aside and the Habeas Corpus Petition is allowed. The detenu viz.,

Omprakash, S/o.Amarchand, aged 36 years, confined at Central Prison,

Puzhal, 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]
                                                                              01.07.2024

                     Index: Yes/No
                     Speaking/Non-speaking order
                     Internet: Yes/No
                     Neutral Citation: Yes/No

                     Anu

                     To

                     1.The Secretary,

Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009.

2.The Commissioner of Police, Greater Chennai, Office of the Commissioner of Police (Goondas Section), Vepery, Chennai-600 077.

3.The Superintendent of Prison,

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Central Prison, Puzhal, Chennai District.

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M.S.RAMESH, J.

and SUNDER MOHAN, J.

Anu

4.The Inspector of Police R-9, Valasaravakkam Police Station, Chennai District

5.The Joint Secretary, Law and Order Department, Secretariat, Chennai.

6.The Public Prosecutor, High Court, Madras.