Karthik, Aged 25 Years, v. The State Of Tamilnadu,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.10.2018
CORAM:
THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR H.C.P. No.1540 of 2018 Karthik ... Petitioner -Vs1. The State of Tamil Nadu, rep. by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009.
2.
The Commissioner of Police, Greater Chennai, Vepery, Chennai-7.
... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records relating to the order of detention NO.477/BCDFGISSSV/2018 dated, 06.07.2018 passed by the 2nd respondent and to quash the same and also to direct the detenu Dhanapal, S/O. Gengaiya Naidu, who is presently detained in the Central Prison, Puzhal, Chennai to be produced before this Hon`ble court and set at liberty.
For Petitioner : Mr.N.R.Elango Senior Counsel for M/s.M.Rajavelu For Respondents : Mr.M.Mohamed Riyaz Additional Public Prosecutor
ORDER
[Order of the Court made by C.T.SELVAM, J.] Petitioner, who is the son of the detenu, viz., Dhanapal, Son of Gengaiya Naidy, aged 56 years, challenges the impugned order of detention, dated 06.07.2018 in No.477/BCDFGISSSV/2018 detaining his father as "GOONDA", as contemplated under Section
2(f) of 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 14/1982).
2. The detenu has come to adverse notice in the following case:- S.No.
Police Station & Crime No.
Section of Law 1.
Central Crime Branch Crime No.70/2018 12(3) Passport Act, 1967 r/w 465, 468, 474 IPC The ground case has been registered against the detenu in Cr.No.94/2018 on the file of Central Crime Branch, for offences u/s 12(3) of Passport Act 1967 r/w 420, 465, 468, 471, 474 IPC. The detention order has been passed by second respondent in No.477/BCDFGISSSV/2018.
3. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have perused the counter affidavit as also the records produced by the Detaining Authority.
4. Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel appearing for the petitioner, confines his argument only in respect of nonapplication of mind on the part of the detaining authority in passing the order of detention.
5. A perusal of the Grounds of Detention would reveal that a ground case came to be registered against the detenu in Cr.No.94/2018 for the offences u/s. 12(3) of Passport Act 1967 r/w 420, 465, 468, 471, 474 IPC. Admittedly, the bail application filed by the detenu in the ground case before the learned Judicial Magistrate, Alandur in Crl.MP.No.3264/2018 and the same was dismissed. Therefore, the likelihood of coming out on bail is very remote; whereas the statement of the Sponsoring Authority has been taken into consideration by the Detaining Authority that the relatives of the detenu are taking steps to file bail applications in the ground case. When a bail application has not been moved, the logical conclusion would be that there is no likelihood of coming out on bail.
Therefore, we are of the view that the finding of the Detaining Authority that there is likelihood of the detenu coming out on bail, is nothing but a clear non-application of mind and the Detaining Authority has not passed the order on merits ; but passed, based on mere ipse dixit. Though the detaining authority has made reliance on similar case, in which an accused was granted bail, the facts involved in those cases are different. The principle of similarity cannot be applied mechanically.
are granted based on the facts and circumstances of each case. Therefore, similar case plea, cannot be taken into consideration. Hence, there is no material to substantiate that there is real possibility of the detenu coming out on bail and the said order was passed without application of mind.
6. In the result, the Habeas Corpus Petition is allowed and the order of detention passed by the 2nd respondent is set aside. The detenu is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar kmi To:
1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009.
2.The Commissioner of Police, Greater Chennai, Vepery, Chennai-7.
3.The Superintendent, Central Prison, Puzhal, Chennai.
4.The Joint Secretary, Public (Law and order) Department, Secretariat, Chennai - 600 009.
5.The Public Prosecutor, High Court, Madras.
H.C.P.No.1540 of 2018 CSL/20.11.2018