Bavani v. The Secy To Govt., Chennai
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.07.2024 CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.877 of 2024 Bavani ... Petitioner Vs.
1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai - 9.
2.The Commissioner of Police, Greater Chennai.
3.The Superintendent of Police, Central Prison, Puzhal, Chennai.
4.The Inspector of Police, H-6, R.K.Nagar Police Station, Chennai.
... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the second respondent dated 14.03.2024 in No.195/BCDFGISSSV/2024 against the petitioner's son namely Arunkumar, Male, S/o.Kuppusamy, aged about 25 years, who is confined
at Central Prison, 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.M.Illiyas 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 Arunkumar, aged about 25 years, S/o.Kuppusamy, has come forward with this petition challenging the detention order passed by the second respondent dated 14.03.2024 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 the petition, the learned counsel for the petitioner mainly focused on the ground that the subjective satisfaction of the Detaining Authority that the detenu is likely to be released on bail suffers from non-application of mind, as the order relied upon by the Detaining Authority is not similar to the case on hand. Referring to the similar order relied upon by the Detaining Authority, learned counsel for the petitioner pointed out that the bail was granted to the accused therein on the ground that the period for taking custodial interrogation was over and a major portion of the investigation might have been completed.
4. On a perusal of the Booklet, this Court finds that in the similar case relied upon by the Detaining Authority in Crl.M.P.No.23536 & 23543 of 2023 dated 25.09.2023, the bail was granted to the accused therein by taking into consideration that the period for taking the accused therein under custodial interrogation was over and a major portion of the investigation might have been completed. However, it is not so in the case on hand. Therefore, the subjective satisfaction arrived at by the Detaining Authority on the basis of the said order that the detenu is likely to be
released on bail, 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.
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. The learned Additional Public Prosecutor placed reliance on a recent decision of the Hon'ble Full Bench of this Court in the case of 'N.Fathima @ Laila Vs. The State of Tamil Nadu' passed in H.C.P.(MD) No.1121 of 2022 and batch., and submitted that when the similar case relied upon in the grounds of detention by the authority for drawing inference that the detenu is likely to come out on bail, is not similar to the ground case for which he has been detained, the same will not be fatal to the detention order, as the said ground would be severable in terms of
Section 5-A of the Tamil Nadu Act 14 of 1982.
7. However, in the recent decision in 'Jayalakshmi Vs. The State of Tamil Nadu' [HCP No.330 of 2024 dated 16.04.2024], we had observed that the observations made by the Hon'ble Full Bench in that regard, cannot be reconciled with the judgments of the Hon'ble Supreme Court. The relevant portions of the order read as follows:- "9. Firstly, that was not the question referred to the Hon'ble Full Bench for its consideration. The observations in this regard, relating to Section 5-A of the Tamil Nadu Act 14 of 1982, in our view, are therefore not binding and cannot be treated as ratio decidendi. In the case of ADM Jabalpur Vs. Shivkant Shukla reported in (1976) 2 SCC 521, the Hon'ble Supreme Court had held that a decision on a point, not necessary for the purpose of, or which does not fall to be determined in that decision, becomes an obiter dictum. Hence, such a point in the decision, would not be an authority for a proposition which did not fall for its consideration, as held in the case of Zee Telefilms Ltd. And Another Vs. Union of India reported in (2005) 4 SCC 649.
.....
12. Therefore, even though in Ankit Ashok Jalan's case [cited supra], the observations in Rekha's case [cited supra]
were distinguished on facts, the requirement to record the satisfaction that the detenu is likely to come out on bail, was reiterated. This requirement is mandated when detention orders are clamped on persons who are in custody. When such a satisfaction is a pre-requisite, to pass a detention order against a person in custody any infirmity in the satisfaction would certainly vitiate the detention order. Such being the legal position enunciated by the Hon'ble Supreme Court, the observations made by the Hon'ble Full Bench that a defect in the said satisfaction would not vitiate the detention order, cannot be reconciled with the judgments of the Hon'ble Supreme Court.
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14. As stated earlier in order to pass a detention order against a person in custody, the detaining authority must be satisfied that a detenu is likely to be released on bail and on being released on bail, is likely to indulge in same prejudicial activities. When this satisfaction is sine qua non, any defect in such satisfaction would render the detention order illegal. Hence, the observations made by the Hon'ble Full Bench of this Court, regarding severability of the ground under Section 5-A of the Tamil Nadu Act 14 of 1982, cannot be reconciled with the aforesaid judgments of the Hon'ble Supreme Court, which are binding on us. However, the judgment of the Hon'ble Full Bench is certainly an authority for the proposition that
non supply of materials relating to the similar case relied upon by the detaining authority, would not vitiate the detention order. 15. In the present case, there is a defect in the subjective satisfaction."
8. The aforesaid extracts are self explanatory. As such, the objections of the learned Additional Public Prosecutor in this regard, would not be sustainable.
9. Accordingly, the detention order passed by the second respondent on 14.03.2024 in No.195/BCDFGISSSV/2024, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu namely Arunkumar, aged about 25 years, S/o.Kuppusamy, 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] 09.07.2024 Index: Yes/No Sni
To 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai - 9.
2.The Commissioner of Police, Greater Chennai.
3.The Superintendent of Police, Central Prison, Puzhal, Chennai.
4.The Inspector of Police, H-6, R.K.Nagar Police Station, Chennai.
5.The Public Prosecutor, High Court, Madras.
M.S.RAMESH, J.
and SUNDER MOHAN , J.
Sni H.C.P.No.877 of 2024 09.07.2024