S.Muthupetchi v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.06.2019
CORAM
THE HON'BLE MR. JUSTICE M.M.SUNDRESH AND THE HON'BLE MR. JUSTICE M.NIRMAL KUMAR H.C.P.No.8 of 2019 S.Muthupetchi
...Petitioner/Daughter of Detenue
Vs
1. The Secretary of Government, Home, Prohibition and Excise Department, Fort Saint George, Chennai-600 009.
2. The Commissioner of Police/Detaining Authority City Police Office, Huzur Road, Coimbatore City, Coimbatore-641 018. ..Respondents Petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus, to call for the records, relating to the petitioner's mother detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 29.11.2018 on the file of the 2nd respondent herein made in proceedings memo C.No.125/G/IS/2018, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's mother namely S.Easwari, W/o.Selvam, age 43 years before this Court and set the petitioner's mother at liberty from the detention now the petitioner's mother detained at Special Prison for Women, Coimbatore.
For Petitioner : Mr.A.Sathish Kumar For Respondents : Mr.C.Iyyappa Raj, Addl. Public Prosecutor
ORDER
(Order of the Court was made by M.M.SUNDRESH, J.) The petitioner is the daughter of S.Easwari, W/o.Selvam, age 43 years who is the detenue. The detenue has been detained by the second respondent by his order in C.No.125/G/IS/2018 dated 29.11.2018, holding him to be a "Drug Offender", as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982. The said order
is under challenge in this Habeas Corpus Petition.
2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents and perused the records produced by the Detaining Authority.
3.Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel appearing for the petitioner would mainly focus his argument on the ground that there is gross violation of procedural safeguards, which would vitiate the detention. The learned counsel for the petitioner submitted that the detenue was found in possession of 98 kgs of Ganja, which attracts statutory bar under NDPS Act whereas in the similar case relied upon by the detaining authority, there is no such bar as the quantity being lesser. Therefore, the likelihood of the detenue coming out on bail is not there and the subjective satisfaction arrived by the detaining authority is not proper.
4.For appreciating the contentions raised by the learned counsel for the petitioner, the relevant averments in para 7 of the grounds of detention are extracted below: "7.......... Further in a case registered under similar sections of law Coimbatore City B2 R.S.Puram Police Station Crime No.275/2018 u/s 8(c) r/w 20(b) (ii)(C), 25, 27-A and 29 NDPS Act, 1985, bail was granted to the accused B.Irulandi and P.Dharmar by the Hon'ble Additional Sessions Judge/Presiding Officer, Special Court for Essential Commodities Act Cases, Coimbatore Court in C.M.P.No.643/2018 dated 03.09.2018. Copy of the above order has been enclosed in the booklet containing the related documents/records. Hence I infer that there is a real possibility of the accused S.
Easwari coming out on bail by filing bail application before the appropriate court in Coimbatore City E-2 Peelamedu Police Station Crime No.1798/2018 since in similar cases the concerned court or higher court grants bail after lapse of certain time. If she comes out on bail, there are possibilities that she will further indulge in such prejudicial activities in future which will be prejudicial to the maintenance of public health and public order......."
5.From a perusal of the detention order, it is seen that the detaining authority has taken into consideration a similar case registered in Crime No.275/2018 u/s 8(c) r/w 20(b)(ii)(C), 25, 27-A and 29 NDPS Act, 1985, wherein the accused were granted bail by the Additional Sessions Judge/Presiding Officer, Special Court for Essential Commodities Act Cases, Coimbatore Court in
C.M.P.No.643/2018 dated 03.09.2018 and therefore, there is a real possibility of the detenue coming out on bail and indulge in such activities prejudicial to the maintenance of public order. In the similar case relied on by the authority, the accused were found in possession of Ganja, which is below commercial quality whereas in the ground case, the detenue was found in possession of 98 kgs of Ganja, which attracts statutory bar under NDPS Act. Therefore, there is nonapplication of mind on the part of the detaining authority in not considering the similar case for arriving at subjective satisfaction. Hence the impugned order of detention is liable to be set aside.
6. In the result, the Habeas Corpus Petition is allowed and the order of detention in C.No.125/G/IS/2018 dated 29.11.2018, passed by the second respondent is set aside. The detenue, namely, S.Easwari, W/o.Selvam, aged 49 years, is directed to be released forthwith unless her detention is required in connection with any other case.
mmi Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar To
1. The Secretary of Government, Home, Prohibition and Excise Department, Fort Saint George, Chennai-600 009.
2. The Commissioner of Police/Detaining Authority City Police Office, Huzur Road, Coimbatore City, Coimbatore-641 018.
3.The Superintendent, Central Prison, Coimbatore.
4. The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai -600 009.
5.The Public Prosecutor, High Court, Madras.
H.C.P.No.8 of 2019 Kak(02/08/2019)