Amutha v. The Principal Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.06.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.599 of 2024 Amutha ... Petitioner Vs.

1.The Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 09.

2.The Commissioner of Police, Tambaram City.

3.The Superintendent of Prison, Central Prison - II, Puzhal, Chennai.

4.The Inspector of Police, T-1, Tambaram Police Station, Tambaram.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the records in connection with the

order of detention passed by the second respondent dated 31.01.2024 in BCDFGISSSV No.05/2024 against the petitioner's son namely A.Hemachandran @ Chandru, Male, aged about 22 years, S/o.Amirthalingam, who is confined at Central Prison - II, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner : Mr.S.Senthilvel For Respondents : Mr.A.Gokulakrishnan, Additional Public Prosecutor

ORDER

M.S.RAMESH, J.

AND SUNDER MOHAN , J.

The petitioner herein, who is the mother of the detenu namely A.Hemachandran @ Chandru, aged about 22 years, S/o.Amirthalingam, has come forward with this petition challenging the detention order passed by the second respondent dated 31.01.2024 slapped on her son, branding him as "Goonda" 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 14 of 1982].

2. Heard the learned counsel for the petitioner, as well as the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in this petition, the learned counsel for the petitioner focused mainly on the ground that the subjective satisfaction of the Detaining Authority that there is a likelihood that the detenu may come out on bail, suffers from non-application of mind, as the Special Report of the Sponsoring Authority is not dated. Hence, the learned counsel raised a bona fide doubt as to the date on which the Special Report was sent by the Sponsoring Authority to the Detaining Authority. The learned counsel further pointed out that, unless the Special Report of the Sponsoring Authority is immediately before the Detention Order, it may not have relevance and hence, the subjective satisfaction of the Detaining Authority based on this undated document, would vitiate the Detention Order.

4. On a perusal of the booklet, it is seen that the Special Report of the Sponsoring Authority is not dated. When the Special Report of the Sponsoring Authority is not dated, the veracity of the Report becomes

doubtful. The compelling necessity to detain the detenu would also depend on when the Sponsoring Authority has sent the Report. In the absence of the report, the compelling necessity to detain, becomes suspect. Hence, this Court is of the view that the subjective satisfaction arrived at by the Detaining Authority based on such undated material, 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 paragraph Nos.10 and 11 of the said judgment of the Hon'ble Supreme Court:- "10.In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the

bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, 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 on 31.01.2024 in BCDFGISSSV No.05/2024, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., A.Hemachandran @ Chandru, Male, aged about 22 years, S/o.Amirthalingam, is directed to be set at liberty forthwith, unless his confinement is required in connection with any other case.

[M.S.R., J] [S.M., J] 19.06.2024 Index: Yes/No Speaking/Non-speaking order Internet: Yes/No Sni

To 1.The Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 09.

2.The Commissioner of Police, Tambaram City.

3.The Superintendent of Prison, Central Prison - II, Puzhal, Chennai.

4.The Inspector of Police, T-1, Tambaram Police Station, Tambaram.

5.The Public Prosecutor, High Court, Madras.

M.S.RAMESH, J.

and SUNDER MOHAN , J.

Sni H.C.P.No.599 of 2024 19.06.2024