K.Maran @ Thirumaran v. The State Of Tamil Nadu Rep.By Its
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL K.Maran @ Thirumaran .. Petitioner Vs 1.The State of Tamil Nadu, Rep. By its Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai -9.
2.The District Collector and District Magistrate, Mayiladuthurai District, Mayiladuthurai.
3.The Superintendent of Police, Mayiladuthurai District, Mayiladuthurai.
4.The Inspector of Police, Prohibition Enforcement Wing, Sirkazhi, Sirkazhi, Mayiladuthurai District.
5.The Superintendent, Special Prison for Women, Thiruchirappalli, Thiruchirappalli District.
.. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling upon the production of the records relating to the detention order dated Page Nos.1/9
08.03.2023 made in detention order in C.O.C.No.11/2023 passed by the second respondent herein quash the same and direct the respondents to produce the body of the detenue Tmt.Lakshmi, Female, aged 48 years, wife of Thirumaran, who has been detained in Special Prison for Women, Thiruchirappalli, before this Court and set her at liberty.
For Petitioner :
Mr.C.Venkatesan for Mr.R.Murugabharathi For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,] This order will now dispose of the captioned 'Habeas Corpus Petition' (hereinafter 'HCP' for the sake of brevity, convenience and clarity).
2. Captioned HCP was listed in the Admission Board on 06.04.2023 and the following order was made:
'
M.SUNDAR, J., and Dr.D.NAGARJUN, J., [Order of the Court was made by M.SUNDAR, J.,] Captioned Habeas Corpus Petition has been filed in Page Nos.2/9
this Court on 27.03.2023 inter alia assailing a detention order dated 08.03.2023 bearing reference No.C.O.C.No.11/2023 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fourth respondent is the Sponsoring Authority.
2. Husband of the detenue is the petitioner.
3. Learned counsel for petitioner submits that ground case qua the detenue is for alleged offences under Sections 4(1)(i), 4(1)(aaa) read with 4(1-A) of the Tamil Nadu Prohibition Act, 1937 and Rules 4 and 5 of the Tamil Nadu Rectified Spirit Rules, 2000 in Crime No.70 of 2023 on the file of Sirkazhi Prohibition Enforcement Wing.
4. The aforementioned detention order has been made on the premise that the detenue is a 'Bootlegger' under Section 2(b) of 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slumgrabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity].
5. The detention order has been assailed inter alia on the ground that several pages in the grounds of booklet furnished to the detenue are illegible which prevented the detenue to make an effective representation.
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
7. Mr.R.Muniyapparaj, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.'
3. The aforementioned Admission Board order dated 06.04.2023 captures all essentials i.e., essentials imperative for appreciating this order and therefore we are not setting out the same in this final order. Page Nos.3/9
It is also made clear that the short forms, short references and abbreviations used in the Admission Board order will continue to be used in the instant final order also for the sake of convenience and clarity.
4. Before we proceed further, we make it clear that 'detention order dated 08.03.2023 bearing reference C.O.C. No.11/2023 made by the detaining authority' shall hereinafter be referred to as the 'impugned preventive detention order' for the sake of convenience and clarity.
5. As would be evident from paragraph 5 of the 06.04.2023 Admission Board order, at the time of admission, learned counsel for petitioner posited his challenge against the impugned preventive detention order on the ground that several pages in the grounds booklet furnished to the detenue are illegible but in the Final Hearing Board today, Mr.C.Venkatesan, learned counsel representing the counsel on record for petitioner changed his line of attack qua his campaign against the impugned preventive detention order and submitted that the impugned preventive detention order is vitiated by non-application of mind as the detaining authority has looked at an Page Nos.4/9
anticipatory bail order made by a Hon'ble Single Judge of this Court and proceeded on the basis that it is a bail order. Elaborating his submission in this direction, learned counsel drew our attention to a portion of paragraph 5 of the grounds of impugned preventive detention order, which reads as follows:
'5....... In similar case (i.e) (1) Crime Number 591/2021, u/s 4(1)(aaa), 4(1)(i) r/w 4(1-A) of TNP Act & Section 4, 5 of Tamil Nadu Rectified Spirit Rules, 2000 of Sirkazhi Prohibition Enforcement Wing, bail was granted by the Hon'ble High Court, Chennai in Crl.O.P.No.10112/2021 dated 16.06.2021 to an accused by name Thiru.Kuttyman @ Dharma S/o.Durai @ Tamilselvan and (2)Crime Number 855/2021, u/s 4(1)(aaa), 4(1)(i) r/w 4(1-A) of TNP Act & Sections 4, 5 of Tamil Nadu Rectified Spirit Rules, 2000 of Mayiladuthurai Prohibition Enforcement Wing, bail was granted by the court of Principal District and Sessions Judge, Nagapattinam in Cr.M.P.No.2008/2021, dated 26.07.2021 to an accused by name Thiru.Azhagarsamy, S/o.Manithevar.
Eventhough he has not filed any bail petition for the above case in any court till the date but by considering the above mentioned similar cases I am satisfied that there is a real and imminent possibility of Thiru.Bharathi, male, aged 48/2023, S/o.Thiyagarajan coming out on bail by filing a bail application in the near future for the above case before the Higher Court....'
6. Thereafter, learned counsel drew our attention to the grounds booklet which contains the aforementioned 16.06.2021 order made by a Hon'ble Single Judge of this Court in Crl.O.P. No.10112 of 2021. We had the benefit of perusing the grounds booklet and we find that the Page Nos.5/9
aforementioned 16.06.2021 order is an anticipatory bail order as rightly pointed out by the learned counsel for petitioner.
7. In response to the above argument, learned Prosecutor submitted that the subjective satisfaction arrived at by the detaining authority qua imminent possibility of detenue being enlarged on bail cannot be found fault with as anticipatory bail itself has been granted for similar offences.
8. We carefully considered the submissions made on both sides.
9. We find that it may not be necessary to embark upon a legal drill of testing the subjective satisfaction arrived at by the detaining authority as regards imminent possibility of detenue being enlarged on bail. The reason is, the impugned preventive detention order gets vitiated owing to non-application of mind. After referring to order dated 16.06.2021 in Crl.O.P. No.10112 of 2021 made by a Hon'ble Single Judge of this Court, the detaining authority has proceeded on the basis that it is a bail order under Section 439 of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.P.C.' for the sake of brevity and clarity] whereas it is a anticipatory bail order under Page Nos.6/9
Section 438 of Cr.P.C. Therefore, we have no hesitation in sustaining the submission of learned counsel for petitioner that the impugned preventive detention order is vitiated by non-application of mind qua detaining authority.
10. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 08.03.2023 bearing reference C.O.C.No.11/2023 made by the second respondent is set aside and the detenue Tmt.Lakshmi, aged 48 years, Wife of Thiru.Thirumaran, is 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.) 04.09.2023 Index : Yes mmi P.S: Registry to forthwith communicate this order to Jail authorities in Special Prison for Women, Tiruchirappalli. To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai -9.
Page Nos.7/9
2.The District Collector and District Magistrate, Mayiladuthurai District, Mayiladuthurai.
3.The Superintendent of Police, Mayiladuthurai District, Mayiladuthurai.
4.The Inspector of Police, Prohibition Enforcement Wing, Sirkazhi, Sirkazhi, Mayiladuthurai District.
5.The Superintendent, Special Prison for Women, Thiruchirappalli, Thiruchirappalli District.
6.The Public Prosecutor, High Court, Madras.
Page Nos.8/9
M.SUNDAR, J., and R.SAKTHIVEL, J., mmi 04.09.2023 Page Nos.9/9