Madras High Court
Kalaiselvi vs The Principal Secretary To Government on 4 June, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
H.C.P.No.335 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.06.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.335 of 2024
Kalaiselvi ... Petitioner
Vs.
1.The Principal Secretary to Government
Home, Prohibition and Excise Dept.,
Secretariat
Chennai 600 009
2.The Commissioner of Police
Avadi City
3.The Superintendent of Prison
Central Prison, Puzhal
Chennai - 66
4.The Inspector of Police, Law and Order
T-6, Avadi Police Station
Chennai ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, calling for the records in connection with the
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H.C.P.No.335 of 2024
order of Detention passed by the second respondent dated 04.01.2024 in
Memo No.01/BCDFGISSSV/2024 against the petitioner's husband
Somasundaram Ganesh, Male aged 53 years, S/o.Raja, who is confined at
Central Prison, Puzhal, Chennai and set aside the same and direct the
respondents to produce the detenu before this Court and set him at liberty.
For Petitioner : Mr.S.Senthilvel
For Respondents : Mr.A.Gokulakrishnan
Additional Public Prosecutor
assisted by Mr.C. Aravind
ORDER
M.S.RAMESH, J.
AND
SUNDER MOHAN, J.
The petitioner herein, who is the wife of the detenu Thiru.
Somasundaram Ganesh, aged 53 years, S/o.Raja, has come forward with
this petition challenging the detention order passed by the second
respondent dated 04.01.2024 slapped on her husband, branding him 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].
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2. Heard the learned counsel for the petitioner, as well as the learned
Additional Public Prosecutor appearing for the respondents.
3. Though several grounds are raised in this petition, the learned
counsel for the petitioner focused mainly on the ground that the subjective
satisfaction of the Detaining Authority that the relatives of the detenu are
taking steps to take out the detenu on bail, suffers from non-application of
mind, as the Special Report of the Sponsoring Authority, as well as the entire
pages of the paper booklet furnished by the Detaining Authority, are not
dated. Hence, the learned counsel raised a bona fide doubt as to when the
documents were obtained and as to the date on which the Special Report
was sent by the Sponsoring Authority to the Detaining Authority. The
learned counsel further pointed out that, unless the Special Report of the
Sponsoring Authority is immediately placed before the Detention Order, it
may not have relevance and hence, the subjective satisfaction of the
Detaining Authority based on these undated documents, would vitiate the
Detention Order.
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4. It is seen from the records that the Special Report of the Sponsoring
Authority is not dated. Further, the statements obtained by the Sponsoring
Authority from the relatives of the detenu, enclosed in the Booklet, stating
that they are planning to file bail application to bring out the detenu on bail,
are also not dated. On a perusal of the Grounds of Detention, it is seen that
the Detaining Authority has stated that the Sponsoring Authority came to
understand that the relatives of the detenu are taking steps to take him out
on bail by filing bail applications before the appropriate Court and has
arrived at the subjective satisfaction that the detenu is likely to be released
on bail. When the statements obtained by the Sponsoring Authority from
the relatives of the detenu stating that they are planning to file bail
application to bring out the detenu on bail, are not dated and even the
Special Report of the Sponsoring Authority is not dated, the veracity of the
Report becomes doubtful. The compelling necessity to detain the detenu
would also depend on when the Sponsoring Authority has sent his Report.
In the absence of the report, the compelling necessity to detain, becomes
suspect. Hence, this Court is of the view that the subjective
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satisfaction arrived at by the Detaining Authority based on such undated
materials, 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 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
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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.”
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 second respondent
on 04.01.2024 in No.01/BCDFGISSSV/2024, is hereby set aside and the
Habeas Corpus Petition is allowed. The detenu viz., Thiru. Somasundaram
Ganesh, aged 53 years, S/o.Raja, is directed to be set at liberty forthwith,
unless his presence is required in connection with any other case.
[M.S.R., J] [S.M., J]
04.06.2024
Index: Yes/No
Neutral Citation
kas
To
1.The Principal Secretary to Government
Home, Prohibition and Excise Dept.,
Secretariat
Chennai 600 009
2.The Commissioner of Police
Avadi City
3.The Superintendent of Prison
Central Prison, Puzhal
Chennai - 66
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https://www.mhc.tn.gov.in/judis
M.S.RAMESH, J.
and
SUNDER MOHAN, J.
kas
4.The Inspector of Police, Law and Order
T-6, Avadi Police Station
Chennai
5.The Public Prosecutor
High Court of Madras
Chennai 600 104
04.06.2024
https://www.mhc.tn.gov.in/judis
