Gowthami v. The Secretary To The Government,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 31.07.2019

CORAM

THE HON'BLE MR. JUSTICE M.M.SUNDRESH AND THE HON'BLE MR. JUSTICE M.NIRMAL KUMAR H.C.P.No.896 of 2019 Gowthami ..Petitioner/Wife of the Detenue Vs 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The District Collector & District Magistrate, Vellore District, Vellore.

...Respondents

Petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus, to call for the records in connection with the order of detention passed by the second respondent dated 29.04.2019 in C3/D.O.No.31/2019 against the petitioner's husband Vinothkumar, male, aged 30 years, S/o.Elumalai, who is confined at Central Prison, Vellore and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner ..

Mr.D.Balaji For Respondents..

Ms.V.Saradha Devi, Govt. Advocate (Crl. Side)

ORDER

(Order of the Court was made by M.M.SUNDRESH, J.) The petitioner is the wife of the detenu and challenge is made to the order of detention dated 29.04.2019 made in C3/D.O.No.31/2019, passed by the second respondent under which the detenu has been branded as a 'Goonda' and detained under The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Sand offenders, Slum-Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).

2.We have heard the learned counsel appearing for the petitioner and the learned Government Advocate (Crl. Side) appearing for the respondents. We have perused the materials available on record.

3.The main argument of the learned counsel appearing for the petitioner is that the case relied on by the detaining authority is not similar in nature and the offences in the ground case are totally different. Therefore, the likelihood of the detenu coming out on bail is not there and the subjective satisfaction arrived by the detaining authority is not proper. 4.For appreciating the contentions raised by the learned counsel for the petitioner, the relevant averments in para 4 of the grounds of detention are extracted below: "4.I am aware that Thiru Vinothkumar has filed a bail application in ground case Thimiri Police Station Cr.No.122/2019 U/s. Man missing @ 364, 302 IPC before the Court of the Principal Sessions Judge, Vellore in Crl.M.P.No.1770/2019 and the same is pending before the Court.

As far as the ground case concerned, in a similar case registered at Kanchi Taluk Police Station Crime No.15/2016 under Sections 147, 148, 506(ii), 302 IPC @ 120B, 147, 148, 506(ii), 302 IPC and 149, 109, 114 IPC bail was granted to the accused Tvl.K.Sandhar, S/o.Kuppan and Moses, S/o.Joseph by the Court of the Hon'ble Sessions Court II, Kanchipuram in Crl.M.P.No.600/2016 on 06.04.2016. As bails are being granted by courts in such cases, there is a real possibility of his (Thiru.Vinothkumar) coming out on bail, in the above pending bail application before the court. If he enlarge himself on bail, he would indulge in further activities which will be prejudicial to the maintenance of the public order and public peace......"

5.From a perusal of the detention order, it is seen that the detaining authority has taken into consideration a similar case registered in Kanchi Taluk Police Station Crime No.15/2016 under Sections 147, 148, 506(ii), 302 IPC @ 120B, 147, 148, 506 (ii), 302 IPC and 149, 109, 114 IPC bail was granted to the accused Tvl.K.Sandhar, S/o.Kuppan and Moses, S/o.Joseph by the Court of the Hon'ble Sessions Court II, Kanchipuram in Crl.M.P.No.600/2016 on 06.04.2016 and therefore, there is a real possibility of the detenu coming out on bail and indulge in such activities prejudicial to the maintenance of public order. The similar case relied on by the authority was registered for the offences under Sections 147, 148, 506(ii), 302 IPC @ 120B, 147, 148, 506(ii), 302 IPC and 149, 109, 114 IPC whereas the offences

involved in the ground case are under Sections 364 and 302 IPC. Therefore, there is non-application of mind on the part of the detaining authority in not considering the similar case for arriving at subjective satisfaction. Hence the impugned order of detention is liable to be set aside.

6. In the result, the Habeas Corpus Petition is allowed and the order of detention in C3/D.O.No.31/2019 dated 29.04.2019, passed by the second respondent is set aside. The detenu, namely, Vinothkumar, S/o.Elumalai, aged about 30 years, is directed to be released forthwith unless his detention is required in connection with any other case.

mmi Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai -600 009.

3. The District Collector,/District Magistrate, Vellore District, Vellore.

4.The Superintendent, Central Prison, Vellore.

5.The Public Prosecutor, High Court, Madras.

H.C.P.No.896 of 2019 Kak(09/10/2019)