Madras High Court
Lakshimi vs The Additional Chief Secretary To ... on 28 June, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
2024:MHC:2696
HCP.No.556 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.556 of 2024
Lakshimi ... Petitioner
Vs.
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai,
Office of the Commissioner of Police (Goondas Section),
Vepery, Chennai – 600 007.
3.The Superintendent of Prison,
Central Prison - II, Puzhal,
Chennai – 600 066.
4.The Inspector of Police,
P-6, Kodungaiyur Police Station,
Chennai – 600 118. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, to call for the entire records connected with
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HCP.No.556 of 2024
the detention order of the 2nd respondent in No.131/BCDFGISSSV/2024
dated 24.02.2024 and quash the same and direct the respondents to
produce the body and person of detenu namely Ponraj, S/o.Vaithiyalingam,
aged about 43 years, detained in Central Prison, Puzhal, Chennai, before
this Court and set him at liberty forthwith.
For Petitioner : Mr.B.M.Santharam
For Respondents : Mr.A.Gokulakrishnan,
Additional Public Prosecutor
ORDER
(Order of the Court was made by M.S.RAMESH, J.)
The petitioner herein, who is the wife of the detenu namely Ponraj,
aged about 43 years, S/o.Vaithiyalingam, has come forward with this
petition challenging the detention order passed by the second respondent
dated 24.02.2024 slapped on her husband, branding her 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].
2. Heard the learned counsel for the petitioner, as well as the learned
Additional Public Prosecutor appearing for the respondents.
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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 detenue
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
no previous case as against the accused therein.
4. On a perusal of the Booklet, this Court finds that the bail order
relied upon by the Detaining Authority in Crl.M.P.No.5203 of 2023, is not
similar to the case on hand since the accused therein was granted bail after
recording the fact that no previous case was reported against the accused
therein. However, it is admitted that there are 3 adverse cases as against
the detenue herein. 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 detenue is also likely to be released on bail, 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 paragraph Nos.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
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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 not be fatal to
the detention order, as the said ground would be severable in terms of
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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 [cited
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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
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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.
9. Accordingly, the detention order passed by the second respondent
on 24.02.2024 in No.131/BCDFGISSSV/2024, is hereby set aside and the
Habeas Corpus Petition is allowed. The detenue namely Ponraj, aged
about 43 years, S/o.Vaithiyalingam, is directed to be set at liberty
forthwith, unless his confinement is required in connection with any other
case.
[M.S.R., J] [S.M., J]
28.06.2024
Index: Yes
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Speaking order
Neutral Citation: Yes
Sni
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To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The Commissioner of Police,
Greater Chennai,
Office of the Commissioner of Police (Goondas Section),
Vepery, Chennai – 600 007.
3.The Superintendent of Prison,
Central Prison - II, Puzhal,
Chennai – 600 066.
4.The Inspector of Police,
P-6, Kodungaiyur Police Station,
Chennai – 600 118.
5.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
M.S.RAMESH, J.
and
SUNDER MOHAN, J.
Sni
28.06.2024
https://www.mhc.tn.gov.in/judis
