Abirami v. Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Abirami .. Petitioner Vs.
1.State of Tamil Nadu Represented by Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009.
2.The Commissioner of Police Salem City.
3.The Superintendent of Prison Central Prison Salem.
4.State Rep. By Inspector of Police Kitchipalayam Police Station Salem.
.. Respondents 1/8
PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus, to call for the records of the 2nd respondent pertaining to the order made in C.M.P.No.107/Drug Offender/Salem City/2022 dated 07.09.2022 in detaining the detenu under the Tamilnadu Act 14/1982 as a Drug Offender and quash the same and direct the respondents to produce the detenu, namely Mohanraj @ Unnikrishnan Son of Saravanan, aged 25 years who is detained at the Central Prison Salem, before this Court and set him at liberty. For Petitioner :
Mr.S.Karthick For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by mother of the detenu assailing a 'preventive detention order dated 07.09.2022 bearing reference C.M.P.No.107/Drug 2/8
Offender/Salem City/2022 [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as the impugned detention order has been made by second respondent. 2.Impugned detention order has been made 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 No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] on the premise that the detenu is a 'Drug Offender' within the meaning of Section 2(e) of Act 14 of 1982. 3.There is no adverse case.
This solitary case which is the sole substratum of the impugned detention order is Crime No.
and clarity]. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4.Mr.S.Karthick, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5.Though several points have been urged / raised in the support affidavit qua captioned HCP, Mr.S.Karthick, learned counsel on record for the petitioner in the hearing projected, predicated and posited his argument on one point and that one point turns on subjective satisfaction of Detaining Authority qua imminent possibility of the detenu being enlarged on bail. Learned counsel submitted that the Detaining Authority has relied on a bail order dated 15.07.2020 in Crl.M.P.No.336 of 2020 on the file of Special Court for EC Act Cases, Salem vide Crime No.212 of 2020 for alleged offences under Section 8(c) read with 20(b)(ii)(B), 29(1) of NDPS Act on the file of Ethapur Police Station to arrive at subjective satisfaction. 4/8
6.Learned counsel for petitioner drew our attention to the grounds of detention wherein this aspect of the matter has been articulated. This is contained in paragraph 4 of the impugned grounds of detention and the relevant paragraph reads as follows:
'4.... ... I am also aware that bail has been granted by the Special Judge for EC Act Cases, Salem in C.M.P.No.323/2020, dated 15.7.2020 for a similar case of Yethapur PS Cr.No.212/2020, u/s. 8(c) r/w 20(b)(ii)(B) and 29(1) of Narcotic Drugs and Psychotropic Substance Act, 1985 registered against one Manikandan, who was remanded on 10.4.2020. Hence, I infer that there is a real possibility of him (Mohanraj @ Unnikrishnan coming out on bail for the above said case, since bails are granted for similar cases by the concerned court or the higher Court after efflux of certain time.....'
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7.Elaborating on the aforementioned submission, learned counsel for petitioner submitted that Manikandan's case is a default bail order under Section 167(2) of the Code of Criminal Procedure, 1973 [hereinafter 'Cr.P.C.' for the sake of brevity, convenience and clarity] and therefore, the comparison is completely flawed. 8.Learned State Additional Public Prosecutor submitted to the contrary and stated that the offences in Manikandan's case and the case on hand are broadly comparable, but we are not inclined to accept this argument as the Sessions Judge has little (no) discretion when it comes to a default bail under Section 167(2) of Cr.P.C., unlike a regular bail under Section 439 of Cr.P.C.
Therefore, relying on the bail order in Manikandan's case to arrive at subjective satisfaction qua imminent possibility of the detenu being enlarged on bail in the case on hand is clearly flawed. 9.Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 07.09.2022 bearing reference C.M.P.No.
the detenu Mohanraj @ Unnikrishnan, Son of Saravanan, aged 25 years, 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.) 14.06.2023 Index : Yes Speaking TK P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Salem.
To 1.The Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai - 600 009.
2.The Commissioner of Police Salem City.
3.The Superintendent of Prison Central Prison, Salem.
4.The Inspector of Police Kitchipalayam Police Station, Salem.
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M.SUNDAR, J.
AND R.SAKTHIVEL, J.
TK 14.06.2023 8/8