N.Venkatachalam @ Balaji v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.No.5 of 2023 N.Venkatachalam @ Balaji S/o.Nagaraj .. Petitioner Vs.
1.
The Secretary to Government Home, Prohibition and Excise Department Secretariat, Fort St.George Chennai-600 009.
2.
The Commissioner of Police / Detaining Authority Coimbatore Coimbatore District.
3.
The Superintendent of Prison Central Prison - Coimbatore Coimbatore District.
4.
State rep. by its The Inspector of Police D-1 Ramanathapuram Police Station Coimbatore District.
..Respondents Page Nos.1/11
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records relating to the petitioner detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 12.12.2022 on the file of the second respondent herein made in proceedings Memo C.No.85/G/IS/2022, quash the same as illegal and consequently, direct the respondents herein to produce the petitioner's namely, N.Venkatachalam @ Balaji, son of Nagaraj, aged 24 years before this Hon'ble High Court and set the petitioner at liberty from detention, now the petitioner detained at Central Prison, Coimbatore. For Petitioner :
Mr.W.Camyles Gandhi For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by the detenu assailing a 'preventive detention order dated 12.12.2022 bearing reference C.No.85/G/IS/2022' [hereinafter 'impugned preventive detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as the impugned preventive detention order has been made by second respondent.
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2. Impugned preventive detention order has been made 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 No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] on the premise that the detenu is a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3. There are two adverse cases and one ground case. The ground case which constitutes substantial part of substratum of the impugned preventive detention order is Crime No.517 of 2022 on the file of D-1, Ramanathapuram Police Station for alleged offences under Sections 394 read with 397 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. Owing to the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix or be detained further by facts. Page Nos.3/11
4. Mr.W.Camyles Gandhi, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5. In the support affidavit qua captioned HCP, several grounds have been raised / urged but in the final hearing, Mr.W.Camyles Gandhi, learned counsel on record for HCP petitioner predicated his campaign on one point and that one point turns on subjective satisfaction arrived at by the Detaining Authority qua imminent possibility of the detenu being enlarged on bail being impaired. Elaborating on the aforementioned submission, learned counsel drew our attention to paragraph No.8 of impugned preventive detention order and the same reads as follows: '8. In Coimbatore District, Thudiyalur Police Station Crime No.397/2022 u/s. 392, 394, 397 and 506(ii) IPC (which is registered under similar section of law), bail was granted to the accused J.Nisarudeen @ Arath Nisar by the Court of Hon'ble Judicial Magistrate No.1, Coimbatore in C.M.P.No.
17887/2022 on 27.06.2022. Copies of the above orders are enclosed in the booklet containing the related documents / records. Hence, I infer that there is a real possibility of accused N.Venkatachalam @ Balaji coming out on bail in the ground case by filing another bail petition Page Nos.
before the same Court or higher Court, since in similar cases the concerned Court or higher Court grants bail after lapse of certain time.'
6. Adverting to the aforementioned paragraph in the grounds booklet of the impugned preventive detention order, learned counsel submitted that the bail granted in ground case is a default bail under Section 167(2) of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.PC' for the sake of brevity and clarity] and learned counsel submitted that this bail order has been furnished to the detenu as part of grounds booklet.
7. We had the benefit of perusing grounds booklet. In the ground case, bail petition is at Page No.150, bail order is at Page No.151 and a scanned reproduction of the same are as follows:
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8. Aforementioned bail petition and bail order make it clear that as regards ground case, it is a default bail which has been granted under Section 167(2) of Cr.PC. As regards default bail, it is a matter of arithmetic and numeric drill and therefore, the bail Court really does not have any discretion. In this view of the matter, taking the default bail order as one of the determinants to arrive at subjective satisfaction qua imminent possibility of the detenu being enlarged on bail is clearly a flawed exercise. This is more so as imminent possibility of a detenu being enlarged on bail is qua probability. As this exercise is flawed, the sequitur is the impugned preventive detention order deserves to be dislodged.
9. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
10. Apropos, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 12.12.2022 bearing reference C.No.85/G/IS/2022 made by the second respondent is set aside and the detenu Thiru.N.Venkatachalam @ Balaji, aged 24 years, son of Page Nos.9/11
Thiru.Nagaraj, is directed to be set at liberty forthwith, if not required in connection with any other case / cases. There shall be no order as to costs. (M.S.,J.) (R.S.V.,J.) 28.06.2023 Index : Yes Speaking mk P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Coimbatore.
To 1.
The Secretary to Government Home, Prohibition and Excise Department Secretariat, Fort St.George Chennai-600 009.
2.
The Commissioner of Police / Detaining Authority Coimbatore Coimbatore District.
3.
The Superintendent of Prison Central Prison - Coimbatore Coimbatore District.
4.
State rep. by its The Inspector of Police D-1 Ramanathapuram Police Station Coimbatore District.
5.
The Public Prosecutor High Court, Madras.
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M.SUNDAR, J., and R.SAKTHIVEL, J., mk H.C.P.No.5 of 2023 28.06.2023 Page Nos.11/11