Madras High Court
Monisha vs State Of Tamil Nadu on 2 July, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
H.C.P.No.792 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.792 of 2024
Monisha ... Petitioner/wife of the detenue
Vs.
1.State of Tamil Nadu
Rep. by its Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The Commissioner of Police,
Greater Chennai, Chennai.
3.The Inspector of Police,
R-5 Virugambakkam Police Station,
Chennai.
4.The Superintendent,
Central Prison, Puzhal, Chennai.
... Respondents
Prayer : Habeas Corpus Petition filed under Article 226 of the
Constitution of India, praying for the issuance of Writ of Habeas Corpus,
to call for the entire records, relating to the petitioner's husband detention
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Page 1 of 10
H.C.P.No.792 of 2024
under Tamil Nadu Act, 14 of 1982 vide detention order, dated 29.02.2024
on the file of the second respondent herein made in proceedings
No.148/BCDFGISSSV/2024 and quash the same as illegal and
consequently, direct the respondents herein to produce the said
petitioner's husband namely Karthikraja, aged 26 years, son of
Manoharan before this Court and set him at liberty, now petitioner's
husband detained at Central Prison, Vellore.
For Petitioner : Mr.C.C.Chellappan
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.,
Karthikraja, aged 26 years, son of Manoharan confined at Central Prison,
Vellore, has come forward with this petition challenging the detention
order passed by the second respondent dated 29.02.2024 slapped on her
husband, branding him as "Goonda" under the Tamil Nadu 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].
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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 was one previous case as against the accused
therein.
4. Upon a perusal of the Booklet, this Court finds that the
detaining authority has relied on an order passed in Crl.M.P.No.9467 of
2017 dated 03.07.2017, subject to the satisfaction that the detenue is
likely to be released on bail. In that case, the accused had one previous
case; 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, subject to
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the satisfaction 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 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
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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
'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
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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 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
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[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.
.....
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
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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.
9. Accordingly, the detention order passed by the second
respondent in No.148/BCDFGISSSV/2024, dated 29.02.2024, is hereby
set aside and the Habeas Corpus Petition is allowed. The detenu viz.,
Karthikraja, aged 26 years, son of Manoharan confined at Central Prison,
Vellore, 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]
02.07.2024
Index: Yes/No
Speaking/Non-speaking order
Internet: Yes/No
Neutral Citation: Yes/No
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Anu
To
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The Commissioner of Police,
Greater Chennai, Chennai.
3.The Inspector of Police,
R-5 Virugambakkam Police Station,
Chennai.
4.The Superintendent,
Central Prison, Puzhal, Chennai.
5.The Joint Secretary,
Law and Order Department,
Secretariat, Chennai.
6.The Public Prosecutor,
High Court, Madras.
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M.S.RAMESH, J.
and
SUNDER MOHAN, J.
Anu
02.07.2024
https://www.mhc.tn.gov.in/judis
