Malliga v. The Secretary To The Government,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10.11.2023 CORAM :

THE HON'BLE MR. JUSTICE S.S.SUNDAR AND THE HON'BLE MR.JUSTICE SUNDER MOHAN Malliga W/o Murugan ..

Petitioner v.

1. The Secretary to the Government Home, Prohibition and Excise Department Secretariat, Chennai 600 009

2. District Collector & District Magistrate Vellore District, Vellore-9

3. The Superintendent of Police Vellore District, Vellore-9

4. The Superintendent of Prison Central Prison, Vellore-2 5.The Inspector of Police Anaicut Police Station Vellore District ..

Respondents

Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the second respondent dated 10.06.2023 in C3/D.O.No.47/2023 against the petitioner's husband Murugan, Male aged 44 years, S/o Vellaiyan, who is confined at Central Prison, Vellore and set aside the same and direct the respondents to produce the detenu before the Hon'ble Court and set him at liberty. For Petitioner ::

Mr.D.Balaji For Respondents ::

Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.C.Aravind, Advocate

ORDER

(Order of the Court was made by S.S.SUNDAR,J.) The petitioner, who is the wife of the detenu, namely, Murugan, aged 44 years, S/o Vellaiyan, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 10.06.2023 slapped on her husband, branding him as 'Bootlegger' 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 appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in the petition, the learned counsel appearing for the petitioner confined his argument to the point that the detaining authority has relied upon the bail order passed in Crl.M.P.No.1206 of 2021 dated 20.04.2021 by the Principal Sessions Court, Vellore in respect of the accused in similar case, which is not similar to the case on hand, as the bail was granted to the accused in similar case considering the Covid-19 pandemic. Therefore, the detention order is liable to be set aside on the sole ground that the subjective satisfaction of the detaining authority regarding the possibility of the detenu coming out on bail in the ground case, suffers from non-application of mind.

4. This Court perused pages 60 & 61 of the booklet and is convinced

with the statement of the learned counsel for petitioner that the bail was granted to the accused in similar case considering the Covid-19 pandemic. This Court has held in several cases that the detention order is vitiated if there is no application of mind as to the real ground on which the bail was granted to the accused in similar case. It is also relevant to point out that the Hon'ble Supreme Court in the case of Rekha v. State of Tamil Nadu through Secretary to Government and another, (2011) 5 SCC 244, has held that in case any of the reasons stated in the order of detention is nonexistent 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, as follows:- "10.

whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-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.'' In view of the position of law enunciated by the Hon'ble Supreme Court in Rekha's case, this Court finds that the impugned detention order is vitiated for non-application of mind.

5. Accordingly, the detention order passed by the 2nd respondent dated 10.06.2023 in C3/D.O.No.47/2023 is hereby set aside and the habeas corpus petition is allowed. The detenu viz., Murugan, S/o Vellaiyan, aged 44 years, is directed to be set at liberty forthwith, unless he is required in connection with any other case.

Index : yes/no (S.S.S.R.,J.) (S.M.,J.) 10.11.2023 ss To

1. The Secretary to Government Home, Prohibition and Excise Department Fort St.George Chennai 600 009

2. The District Collector & District Magistrate Vellore District, Vellore-9

3. The Superintendent of Police Vellore District, Vellore-9

4. The Superintendent of Prison Central Prison, Vellore-2

5.The Inspector of Police Anaicut Police Station Vellore District

6. The Public Prosecutor High Court, Madras

S.S.SUNDAR,J.

AND SUNDER MOHAN,J.

ss 10.11.2023