Kowsalya v. The Secretary To Govenment
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.NO.1008 OF 2023 Kowsalya ..
Petitioner VS.
State of Tamil Nadu Rep. by 1.The Secretary to Government Home, Prohibition & Excise Department Fort St. George, Chennai - 600 009.
2.The District Collector and District Magistrate Chengalpet District, Chengalpet.
3.The Superintendent of Police Chengalpet District, Chengalpet.
4.The Superintendent of Prison Central Prison Puzhal, Chennai.
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5.The Inspector of of Police PEW - Madhuranthagam Police Station Chengalpet District.
..
Respondents 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 pertaining to the order of detention passed by the second respondent in No. CPT No.31/2023 dated 15.05.2023 against the petitioner husband Chandru male aged 32 years son of Elumalai, now confined in 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.T.Balaji For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor Assisted by Mr.C.Aravind
ORDER
[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] came up for admission on 15.06.2023, this Bench made an order and a scanned reproduction of the same is as follows:
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2.The aforementioned Admission Board captures all 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.T.Balaji, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor assisted by Mr.C.Aravind for all respondents are before us. 4.To be noted, 'order dated 15.05.2023 bearing reference CPT No.31/2023' made by second respondent / Detaining Authority shall in this order be referred to as 'impugned preventive detention order' for the sake of convenience and clarity.
5.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 5/11
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 Raji's case bail order being bail order dated 25.08.2020 in Crl.M.P.No.2698 of 2020 on the file of Principal District and Sessions Judge of Chengalpattu. Relevant portion in paragraph No.5 of the grounds of detention reads as follows:
'5...And in similar nature of offences similar accused was already released on bail through appropriate court. i.e., In Prohibition Enforcement Wing, Madurantakam Cr.No.1688/2020 u/s. 4(1)(aaa), 4(1-A) Tamil Nadu Prohibition Act read with 6 and 11 of Tamil Nadu Rectified Spirit Rules 2000 (Transporting) against the similar accused Raji, S/o.Murugan was released on bail through Principal District and Sessions Court, Chengalpattu in Crl.M.P.No.2698/2020 on 25.08.2020. Hence I infer that there is a real possibility of his coming out on bail if he applied bail petition in the above ground case since in similar cases, bails are granted by the court after lapse of time......'
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6.A careful perusal of Raji's case bail order, brings to light that the then prevailing Covid-19 situation had weighed in the minds of the learned Sessions Judge in granting bail. Relevant portion in Raji's case bail order reads as follows:
'There is no hospitalization due to consumption of poisonous arrack. The petitioner is in judicial custody for the past 14 days. 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 Re: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.' 7.Learned Prosecutor submitted to the contrary by saying that alleged offences in Raji's case and case on hand are broadly comparable. 7/11
8.We carefully considered the rival submissions. 9.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 15.05.2023. 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 Detaining Authority 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. 10.Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 15.05.
No.31/2023 made by the second respondent is set aside and the detenu Thiru.Chandru, aged 32 years, Son of Thiru. Elumalai, 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.) 21.09.2023 Index : Yes Speaking TK 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 & Excise Department Fort St. George, Chennai - 600 009.
2.The District Collector and District Magistrate Chengalpet District, Chengalpet.
3.The Superintendent of Police Chengalpet District, Chengalpet.
4.The Superintendent of Prison Central Prison Puzhal, Chennai.
5.The Inspector of of Police PEW - Madhuranthagam Police Station Chengalpet District.
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M.SUNDAR, J.
AND R.SAKTHIVEL, J.
TK H.C.P.NO.1008 OF 2023 21.09.2023 11/11