Saraswathi v. Additional Chief Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.NO.68 OF 2023 Saraswathi ..
Petitioner Vs.
1.The Additional Chief Secretary to the Government Home, Prohibition and Excise Department Secretariat, Chennai - 600 009.
2.The Commissioner of Police Avadi Police Commissionarate Avadi City.
3.The Superintendent of Prison Central Prison Puzhal, Chennai - 600 066.
4.The Inspector of Police (L&O) B-4, Sevvapet Police Station Tiruvallur District.
..
Respondents 1/10
PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ order or direction in the nature of WRIT OF HABEAS CORPUS, to call for the records in connection with the order of detention passed by the 2nd respondent dated 30.11.2022 in No.168/BCDFGISSSV/2022 against the petitioner's son Saravanan, M/A. 23, S/o.Venkatesan, who is confined at Central Prison, Puzhal, Chennai and to set aside the same and consequently direct the respondents to produce the detenu before this Court and set him at liberty.
For Petitioner :
Mr.M.Mohamed Saifulla for Mr.M.Anand For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] When the matter came up for admission on 19.01.2023, this Bench made an order and a scanned reproduction of the same is as follows: 2/10
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2.There are one adverse case and one ground case. The ground case which is the sole substratum of the impugned detention order is Crime No.370 of 2022 on the file of B-4 Sevvapet Police Station for alleged offences under Sections 341, 302 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 detention order, it is not necessary to delve into the factual matrix or be detained further by facts. 3.M.Mohamed Saifulla, learned counsel representing the learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us. 4.
The aforementioned order / proceedings made in the admission board by this Court captures the crux and gravamen of the case that is essential for appreciating this order and therefore, we deem it appropriate to not to speak out the same again. We further deem it appropriate to say that the aforementioned order dated 19.01.2023 made by this Court shall be read as an integral part and parcel of this order.
5.In the admission board though the campaign against the impugned preventive detention order was predicated essentially on the ground that similar case bail order that has been relied on was not properly translated was raised, in the final hearing today, learned counsel representing the learned counsel on record for petitioner drew the attention of this Court to the grounds of detention qua impugned preventive detention order more particularly paragraph 4 therein and the most relevant portion of paragraph 4 therein reads as under:
'4........ Further, in a similar case, registered at R-3 Ashok Nagar Police Station Cr.No.59/2021, u/s.147, 148, 449, 324 and 302 IPC, bail was granted to the accused Thiru Balaji by the Court of Principal Sessions, Chennai, in Crl.M.P.No.10485/2021............'
6.Adverting to the aforementioned portion of the grounds of detention qua impugned preventive detention order, learned counsel submitted that the FIR vide Crime No.59/2021 has not been furnished to the petitioner 6/10
and the bail order in Balaji's case is one which was granted owing to the then prevalent COVID-19 situation.
7.Responding to the aforementioned argument learned Prosecutor submitted that the alleged offence/alleged charge in both cases are broadly comparable. We carefully considered the rival submissions and we perused the grounds booklet. We find that there is no reason to disagree with the learned counsel for petitioner that FIR vide Crime No.59/2021 on the file of R-3 Ashok Nagar Police Station has not been furnished to the detenu. This point urged by the petitioner enures to the benefit of the petitioner. As regards Balaji's case bail order, we find that the most relevant portion is in paragraph 5 of the bail order and that relevant portion reads as follows: '5............ Considering the duration of the custody and stage of the case and existing Covid-19 situation, this court is inclined to grant bail to the petitioners subject to condition.'
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8.To be noted, COVID-19 situation in legal parlance is from 15.03.2020 to 28.02.2022 i.e., the period for which Hon'ble Supreme Court in Suo Motu Writ Petition (C) No.3 of 2020 inter alia extended time across the Board. The impugned preventive detention order is dated 30.11.2022 and therefore, comparison of the case on hand with Balaji's case bail order to arrive at subjective satisfaction that there is imminent possibility of the detenu being enlarged on bail is clearly a flawed comparison which reminds one of the age old adage 'comparing Apples and Oranges'. We also remind ourselves that imminent possibility of being enlarged on bail is not qua time but qua probability. In this view of the matter, as the subjective satisfaction arrived at by the Detaining Authority is flawed, the impugned preventive detention order deserves to be dislodged is the sequitur.
9.Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 30.11.2022 bearing reference Memo No.168/BCDFGISSSV/2022 made by the second respondent is set aside and the detenu Thiru Saravanan, aged 23 years, son of Thiru. Venkatesan, is 8/10
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.) 20.06.2023 Index : Yes Speaking TK P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
To 1.The Additional Chief Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009.
2.The Commissioner of Police Avadi Police Commissionarate, Avadi City.
3.The Superintendent of Prison Central Prison, Puzhal, Chennai - 600 066.
4.The Inspector of Police (L&O) B-4, Sevvapet Police Station, Tiruvallur District. 5.The Public Prosecutor High Court of Madras.
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M.SUNDAR, J.
AND R.SAKTHIVEL, J.
TK H.C.P.NO.68 OF 2023 20.06.2023 10/10