Kamaraj v. The Secretary To Government,
-IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.08.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Kamaraj S/o.Velayudham .. Petitioner / Brother of the detenu Vs.
1.
The Secretary to Government Home, Prohibition and Excise Department Secretariat, Fort St.George Chennai-600 009.
2.
The District Collector and District Magistrate Chengalpattu District Chengalpattu.
3.
The Superintendent of Police Chengalpattu Chengalpattu District.
4.
The Superintendent of Prison Central Prison - Puzhal Chennai District.
5.
State rep. by its The Inspector of Police Madhuranthagam PEW Police Station Page Nos.1/11
Chengalpattu District.
..Respondents 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 entire records relating to the petitioner's brother detention under Tamil Nadu Act 14 of 1982 vide detention order dated 17.03.2023 on the file of the second respondent herein made in proceedings Memo CPT No.22/2023, quash the same as illegal and consequently, direct the respondents herein to produce the petitioner's brother namely, Muthuraman, Son of Velayudham, aged 50 years before this Court and set him at liberty, now the petitioner's brother is detained at Central Prison, Puzhal, Chennai.
For Petitioner :
Mr.R.Sasikumar 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 captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] was listed in the Admission Board on 11.04.2023, this Court made the following order: 'H.C.P.No.541 of 2023 M.SUNDAR, J., Page Nos.2/11
and M.NIRMAL KUMAR, J., (Order of the Court was made by M.SUNDAR, J.,) Captioned Habeas Corpus Petition has been filed in this Court on 31.03.2023 inter alia assailing a detention order dated 17.03.2023 bearing reference CPT No.22 of 2023 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fifth respondent is the Sponsoring Authority.
2. To be noted, brother of detenu is the petitioner.
3. Mr.R.Sasikumar, learned counsel on record for habeas corpus petitioner is before us. Learned counsel for petitioner submits that ground case qua the detenu is for alleged offences under Sections 4(1)(aaa), 4(1)(b), 4(1)(g), 4(1)(h) and 4(1-A) of Tamil Nadu Prohibition Act, 1937 read with Rules 7 and 11 of Tamil Nadu Rectified Spirit Rules, 2000 (Transporting) and Sections 468, 471 and 420 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] in Crime No.118 of 2023 on the file of Madhuranthagam Prohibition Enforcement Wing.
4. The aforementioned detention order has been made on the premise that the detenu 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, SlumPage Nos.3/11
grabbers 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 some of the pages in the booklet served on the detenu were illegible which prevented the detenu from making 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.'
2. The aforementioned Admission Board order captures essentials that are imperative for appreciating this order and therefore, we are not setting out the same again. However, short forms, short references and abbreviations used in the Admission Board order will continue to be used in the instant order also for the sake of brevity, convenience and clarity.
3. Mr.R.Sasikumar, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
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4. At the time of admission i.e., in the Admission Board, the point that some of the pages in the booklet served on the detenu were illegible which prevented the detenu from making an effective representation was urged but in the final hearing Board today, learned counsel for petitioner predicated his campaign against the impugned preventive detention order on one point which turns on subjective satisfaction arrived at by the Detaining Authority qua imminent possibility of the detenue being enlarged on bail. Learned counsel submitted that such subjective satisfaction has been arrived at by the Detaining Authority by relying on Raji's case bail order being bail order dated 25.08.2020 in Crl.M.P.No.2698 of 2020 on the file of Court of the Principal Sessions Judge of Kancheepuram District at Chengalpattu. Relevant portion in paragraph No.5 of the grounds of detention reads as follows:
'5. ....................In Prohibition Enforcement Wing, Maduranthagam Cr.No.1688 of 2020 u/s 4(1)(aaa), 4(1-A) Tamil Nadu Prohibition Act r/w 6 & 11 of Tamil Nadu Rectified Spirit Rules 2000 (Transporting) against the similar accused Raji, son of Murugan was released on bail through Principal District and Sessions Court, Chengalpattu in Crl.M.P.No.2698/2020 on 25.08.2020.
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Hence, I infer that there is a real possibility of her coming out on bail in the above ground case since in similar cases, bails are granted by the Court after lapse of time.............'
5. A careful perusal of Raji's case bail order in the grounds booklet, a paragraph thereat brings to light that then prevailing Covid-19 situation had weighed in the mind of the learned Sessions Judge in granting bail. Relevant portion reads as follows:
'...................... In furtherance to the directions of the Hon'ble Chief Justice of High Court, Madras vide letter dated 21.03.2020 and pursuant to directions of the Hon'ble Supreme Court in Suo Motu W.P.(Civil) No.1/2020 in Rez Contagion of COVID 19 Virus in prisons and also in view of the directions given by the High Power Committee appointed by the Hon'ble Supreme Court of India, New Delhi and also considering the urgent need and necessity to ensure social distancing and thereby reducing the scope of infection, it is essential that the prisons are decongested as much as possible. Keeping this in view.......................'
6. Learned Prosecutor submitted to the contrary by saying that alleged offences in Raji's case and case on hand are broadly comparable. Page Nos.6/11
7. We carefully considered the rival submissions. Page Nos.7/11
8. Covid - 19 situation in legal parlance is from 15.03.2020 to 28.02.2022 vide orders of Hon'ble Supreme Court in Suo Motu Writ Petition (C) No.3 of 2020 wherein limitation across the Board was extended and therefore, Raji's case would not apply to the case on hand as the impugned preventive detention order has been made on 17.03.2023. This Court has repeatedly held that in cases of this nature, comparison is not restricted to alleged offences but it pertains to determinants / parameters for grant of bail too as 'imminent possibility' is qua probability. Therefore subjective satisfaction as regards imminent possibility of detenue being enlarged on bail arrived at by relying on a bail order which in turn has granted bail owing to then prevalent Covid-19 situation, has impaired the subjective satisfaction leading to the inevitable sequitur that impugned preventive detention order is vitiated and that it deserves to be dislodged.
9. Apropos, the further sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 17.03.2023 bearing reference No.CPT No.22/2023 made by the second respondent is set aside and the detenu Thiru.Muthuraman, male, aged 50 years, son of Velayudham, is Page Nos.8/11
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.) 14.08.2023 Index : Yes / No Speaking / Non-speaking order gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
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To 1.
The Secretary to Government Home, Prohibition and Excise Department Secretariat, Fort St.George Chennai-600 009.
2.
The District Collector and District Magistrate Chengalpattu District Chengalpattu.
3.
The Superintendent of Police Chengalpattu Chengalpattu District.
4.
The Superintendent of Prison Central Prison, Puzhal Chennai District.
5.
State rep. by its The Inspector of Police PEW-Madhuranthagam Police Station Chengalpattu District.
6.
The Public Prosecutor High Court, Madras.
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M.SUNDAR, J., and R.SAKTHIVEL, J., gpa 14.08.2023 Page Nos.11/11