Madras High Court
Kavitha vs State Of Tamil Nadu on 28 June, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
HCP.No.581 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.581 of 2024
Kavitha ... Petitioner
Vs.
1.State of Tamil Nadu,
Rep. by the Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai – 600 009.
2.The District Magistrate and District Collector
of Tiruvallur District,
Office of the District Magistrate and District Collector,
Tiruvallur District, Tiruvallur.
3.The Superintendent of Police,
Tiruvallur, Tiruvallur District.
4.The Superintendent of Prison,
Central Prison – II, Puzhal,
Chennai – 600 066.
5.The Inspector of Police,
Pennalurpet Police Station,
Tiruvallur District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
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HCP.No.581 of 2024
issue a Writ of Habeas Corpus, to call for the records relating to the
detention order in B.C.D.F.G.I.S.S.S.V.No.06/2024 dated 24.02.2024 passed
by the 2nd respondent under the Tamil Nadu Act 14 of 1982 and set aside the
same and direct the respondents to produce the petitioner's son namely
Chandru, S/o.Palani, aged about 22 years, the detenu, now confined in
Central Prison - II, Puzhal, Chennai, before this Court and set him at liberty
forthwith.
For Petitioner : Mr.A.Vinoth Kumar
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 mother of the detenu namely
Chandru, aged about 22 years, S/o.Palani, has come forward with this
petition challenging the detention order passed by the second respondent
dated 24.02.2024 slapped on her son, 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
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Additional Public Prosecutor appearing for the respondents.
3. The learned counsel for the petitioner pointed out that though the
Detaining Authority has observed that the detenu has not filed any bail
application in the ground case, has not made any observation or relied on
any material to satisfy that the detenue is likely to come out on bail. It is his
submission that the Detaining Authority has not relied upon any similar case
also to arrive at a subjective satisfaction about the possibility of the detenu
coming out on bail and therefore, there is a non-application of mind of the
Detaining Authority..
4. On a perusal of the Grounds of Detention, this Court finds that the
Detaining Authority has recorded that the detenu has not filed any bail
application. However, the Detaining Authority has not satisfied himself as
to whether the detenu is likely to file a bail application. He has not referred
to any similar cases in which bail was granted. Above all, the Detaining
Authority has not arrived at a satisfaction that the detenu is likely to be
released on bail. It is well settled that this satisfaction is sine qua non for
detaining a person who is already in custody. In the absence of the said
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satisfaction, we are of the view that the impugned order is vitiated.
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 the same footing as that of the
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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 Section 5-A of the Tamil
Nadu Act 14 of 1982.
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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 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
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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
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.”
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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 B.C.D.F.G.I.S.S.S.V.No.06/2024, is hereby set aside and
the Habeas Corpus Petition is allowed. The detenue namely Chandru, aged
about 22 years, S/o.Palani, 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/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
Sni
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To
1.The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai – 600 009.
2.The District Magistrate and District Collector,
Office of the District Magistrate and District Collector,
Tiruvallur District, Tiruvallur.
3.The Superintendent of Police,
Tiruvallur, Tiruvallur District.
4.The Superintendent of Prison,
Central Prison – II, Puzhal,
Chennai – 600 066.
5.The Inspector of Police,
Pennalurpet Police Station,
Tiruvallur District.
6.The Public Prosecutor,
High Court, Madras.
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M.S.RAMESH, J.
and
SUNDER MOHAN, J.
Sni
28.06.2024
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