Devaraj v. The Additional Chief Secretary To Governemnt

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.04.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN Devaraj ... Petitioner / father of the detenue Vs.

1.The Additional Chief Secretary to Government, Home, Prohibition and Excise (XVI) Department, Fort St.George, Secretariat, Chennai-600 009. 2.The Commissioner of Police, Office of the Commissioner of Police, Greater Chennai, Chennai District.

3.The Superintendent of Prison, Central Prison, Puzhal, Thiruvallur District-600 066.

4.The Inspector of Police, V-1, Villivakkam Police Station, Greater Chennai.

... Respondents Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Habeas Corpus, to call for the records in detention order No.652/BCDFGISSSV/2023

dated 08.12.2023 on the file of the second respondent and set aside the same and direct the respondents herein to produce the body of the son of petitioner/detenue Mr.Viswanathan @ Viswa, S/o.Devaraj, aged 25 years, now confined at Central Prison, Puzhal before this Court and set him at liberty.

For Petitioner : Mr.M.Mohamed Saifulla For Respondents : Mr.E. Raj Thilak, Additional Public Prosecutor assisted by Mr.C. Aravind

ORDER

M.S.RAMESH , J.

and SUNDER MOHAN, J.

The petitioner, who is the father of the detenu viz., Viswanathan @ Viswa, S/o.Devaraj, aged 25 years, now confined at Central Prison, Puzhal, has come forward with this petition challenging the detention order passed by the second respondent dated 08.12.2023 slapped on his son, branding him as "Goonda" under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14 of 1982].

2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in the petition, the learned counsel for the petitioner pointed out that the Detaining Authority has not applied its mind while expressing its subjective satisfaction that the detenu is also likely to be released on bail. It is his submission that the case relied upon by the Detaining Authority is not similar to the present case, as the bail was granted in favour of the accused therein by recording the fact that there was one previous case as against the accused therein.

4. On a perusal of the Booklet, this Court finds that the bail order relied upon by the Detaining Authority in Crl.M.P.No.2054 of 2023 dated 30.01.2023, is not similar to the case on hand, since the accused therein was granted bail after recording the fact that one previous case was reported against the accused therein. However, it is admitted that there is three adverse cases as against the detenu herein. Considering the nature of the bail order in the similar case relied upon by the Detaining Authority and the case on hand, this Court finds that the subjective

satisfaction of the Detaining Authority that the detenu is also likely to be released on bail, 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 paragraphs 10 and 11 of the said judgment of the Hon'ble Supreme Court:- "10.

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.

7. Accordingly, the detention order passed by the second respondent in No.652/BCDFGISSSV/2023, dated 08.12.2023, is hereby

set aside and the Habeas Corpus Petition is allowed. The detenu viz., Viswanathan @ Viswa, S/o.Devaraj, aged 25 years, now confined at Central Prison, Puzhal, is directed to be set at liberty forthwith unless he is required in connection with any other case. [M.S.R., J] [S.M., J] 08.04.2024 Index: Yes/No Speaking/Non-speaking order Internet: Yes/No Anu To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise (XVI) Department, Fort St.George, Secretariat, Chennai-600 009. 2.The Commissioner of Police, Office of the Commissioner of Police, Greater Chennai, Chennai District.

3.The Superintendent of Prison, Central Prison, Puzhal, Thiruvallur District-600 066.

4.The Inspector of Police, V-1, Villivakkam Police Station, Greater Chennai.

5.The Joint Secretary, Law and Order Department, Secretariat, Chennai.

6.The Public Prosecutor, High Court, Madras.

M.S.RAMESH , J.

and SUNDER MOHAN, J.

Anu 08.04.2024