P.Sumathi v. The Additional Chief Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.11.2023 CORAM :

THE HONOURABLE MR. JUSTICE S.S. SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1187/2023 P.Sumathi ... Petitioner Vs.

1.The State of Tamil Nadu rep.by its Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St George, Chennai - 600 009.

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

3.The Superintendent of Police Mayiladuthurai, Mayiladuthurai District.

4.The Inspector of Police Kuthalam Police Station Mayiladuthurai District.

5.Th Superintendent of Prison Central Prison, Tiruchirappalli ... Respondents

Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus calling for the relating to the proceedings of the 2nd respondent herein in COC No.25/2023 dated 01.06.2023 and quash the same and produce the petitioner's husband the detenu Prakash aged about 54 yearas TPDA No.7900 now detained in Central Prison, Tiruchirappalli before this Court and set him at liberty. For Petitioner : Mr.R.Shivakumar For Respondents : Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.Aravind. C

ORDER

[Order of the Court was made by S.S.SUNDAR, J] (1)The petitioner, wife of the detenu Prakash, aged 54 years, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 01.06.2023 slapped on her husband, branding him as "Goonda" under the Tamil Nadu Act 14 of 1982. (2)Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. (3)Though several points have been raised by the learned counsel for the

petitioner, the detention order is liable to be quashed on the ground that the subjective satisfaction of the Detaining Authority regarding the possibility of the detenu coming out on bail by relying upon the bail order granted to the accused in a similar case, suffers from non-application of mind.

(4) In paragraph No.4 of the Grounds of Detention, the Detaining Authority has also stated that there is a possibility of the detenu coming out on bail in the ground case since in a similar case, bail was granted to the accused therein and relied upon the order passed by the learned Principal District and Sessions Judge, Nagapattinam, in Cr.MP.No.2586/2020 dated 07.10.2020. However, a perusal of the said order in the Booklet in page No.98, this Court finds that the said order relates to release of the accused on bail u/s.167[2] of Cr.P.C., since the accused therein had been in prison for more than 200 days and not on merits. Therefore, it is not a similar case and the subjective satisfaction of the Detaining Authority, regarding the possibility of the detenu coming out on bail suffers from nonapplication of mind, which vitiates the detention order. (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. In the instant case, the Detaining Authority has arrived at the subjective satisfaction that the detenu is likely to be released on bail in the ground case by referring to a bail order granted to an accused in a similar case in Cr.MP.No.2586/2020. However, the said bail was granted on the ground that accused is entitled to statutory bail and not on merits. This indicates non-application of mind on the part of the Detaining Authority.

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 paragraphs No.10 and 11 of the said judgment of the Hon'ble Supreme Court:- ''10.

application number, whether the bail order was passed in respect of the co-accused in the same case, and 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.'' (6)In view of the ratio laid down by the Hon'ble Supreme Court in the aforesaid judgment and in view aforesaid reason, this Court is of the view

that the detention order is liable to be quashed. (7)Accordingly, the detention order passed by the 2nd respondent dated 01.06.2023 in COC.No.25/2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case. [SSSRJ] [SMJ] 03.11.2023 AP Internet : Yes To 1.The Additional Chief Secretary to Government, State of Tamil Nadu Home, Prohibition and Excise Department, Fort St George, Chennai - 600 009.

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

3.The Superintendent of Police Mayiladuthurai, Mayiladuthurai District.

4.The Inspector of Police Kuthalam Police Station Mayiladuthurai District.

5.Th Superintendent of Prison Central Prison,Tiruchirappalli.

6.The Public Prosecutor, High Court, Madras.

S.S. SUNDAR, J., and SUNDER MOHAN, J., AP HCP. No.1187/2023

03.11.2023