M.Nivetha v. Additional Chief Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.No.791 of 2023 M.Nivetha .. Petitioner Vs
1. The Addl. Chief Secretary to the Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai -9.
2. The Commissioner of Police, Office of the Commissioner of Police, Goondas Section, Avadi, Chennai - 54.
3.The Superintendent, Central Prison, Puzhal, Chennai - 66.
4.The Inspector of Police (L & O), T-7 Tank Factory Police Station, Vellanur, Avadi, Chennai - 62.
.. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the entire records connected with the order of the second respondent herein in Memo No.88/BCDFGISSSV/2023 dated 03.04.2023 passed against the petitioner's husband the detenu namely Manimaran, son of Puliendran, Page Nos.1/8
aged about 30 years, who is confined at Central Prison, Puzhal, Chennai and set aside the same and consequently direct the respondents herein to produce the body and person of the detenu before this Court and set him at liberty forthwith. For Petitioner :
Ms.M.Kokila for Ms.R.Saritha For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,] We find that prima facie case for admission has been made out and therefore we are making formal order of admission as Additional Public Prosecutor has accepted notice on 04.05.2023 itself.
2. As four weeks therefrom i.e., four weeks from 04.05.2023 has elapsed, main habeas corpus petition was taken up with the consent of both sides.
3. Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by wife of the detenu assailing a 'preventive detention order dated 03.04.2023 bearing reference Page Nos.2/8
No.88/BCDFGISSSV/2023'
[hereinafter 'impugned preventive detention order' for the sake of convenience and brevity] made by second respondent (hereinafter 'detaining authority' for the sake of convenience). To be noted, fourth respondent is the sponsoring authority.
4. Impugned preventive 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, 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] on the premise that the detenu is a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
5. There is no adverse case. The ground case which constitutes sole substratum of the impugned preventive detention order is Crime No.126 of 2023 on the file of T-7 Tank Factory Police Station for alleged offences under Sections 147, 148, 302, 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience Page Nos.3/8
and clarity]. Owing to the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
6. Ms.M.Kokila, learned counsel representing the counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
7. Learned counsel for petitioner predicated her 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 detenu being enlarged on bail. Learned counsel submitted that such subjective satisfaction has been arrived at by the Detaining Authority by relying on Balaji's case bail order being bail order dated 26.05.2021 in Crl.M.P.No.10485 of 2021 on the file of Sessions Court, Chennai. Relevant portion in paragraph No.3 of the grounds of detention reads as follows:
'3......Further, in a similar case, registered in R3 Ashok Nagar Police Station Cr.No.59/2021 u/s 147, 148, 449, 324, 302 IPC, bail was granted to the accused Thiru Balaji by the Court of Principal Sessions, Chennai in Page Nos.4/8
Crl.M.P.No.10485/2021. Hence, I infer that there is very likely of his coming out on bail in T-7 Tank Factory Police Station Cr. No.126/2023 since in similar case, bail is granted by the court after a lapse of time......'
8. A careful perusal of Balaji's case bail order, more particularly paragraph 5 thereat brings to light that the then prevailing Covid-19 situation had weighed in the minds of the learned Sessions Judge in granting bail. Paragraph 5 of Balaji's case bail order reads as follows: '5.The petitioners have been in custody for the past 75 days. No previous case is reported as against the petitioners. Considering the duration of custody and stage of the case and existing Covid-19 situation, this Court is inclined to grant bail to the petitioners subject to condition.'
9. Learned Prosecutor submitted to the contrary by saying that alleged offences in Balaji's case and case on hand are broadly comparable.
10. We carefully considered the rival submissions. Page Nos.5/8
11. 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, Balaji's case would not apply to the case on hand as the impugned preventive detention order has been made on 03.04.2023. 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 detenu being enlarged on bail arrived at by the detaining authority by relying on a bail order wherein bail has been granted 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.
12. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 03.04.2023 bearing reference No.88/BCDFGISSSV/2023 made by the second respondent is set aside and the detenu Thiru.Manimaran, aged 30 years, Son of Page Nos.6/8
Thiru.Puliyendran, 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.) 01.09.2023 Index : Yes/No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai. To
1. The Addl. Chief Secretary to the Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai -9.
2. The Commissioner of Police, Office of the Commissioner of Police, Goondas Section, Avadi, Chennai - 54.
3.The Superintendent, Central Prison, Puzhal, Chennai - 66.
4.The Inspector of Police (L & O), T-7 Tank Factory Police Station, Vellanur, Avadi, Chennai - 62.
5.The Public Prosecutor, High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and R.SAKTHIVEL, J., mmi H.C.P.No.791 of 2023 01.09.2023 Page Nos.8/8