Hema v. The Additional Chief Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.07.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1645 of 2024 Hema ... Petitioner/Sister of Detenu Vs.

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

2.The Commissioner of Police, Tiruppur City, Tiruppur District.

3.The Superintendent of Prison, Central Prison, Coimbatore, Coimbatore District.

4.The Inspector of Police, South Police Station, Tiruppur City.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records in connection with

the order of detention passed by the second respondent dated 03.02.2024 in C.No.04/G/IS/TIRUPPUR CITY/2024 against the petitioner's brother Hariharan son of Arumugam aged about 25 years, who is confined at Central Prison, Coimbatore and set aside the same and direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty.

For Petitioner : Mr.R.Ramamoorthy For Respondents : Mr.A.Gokulakrishnan, Additional Public Prosecutor

ORDER

M.S.RAMESH, J.

AND SUNDER MOHAN , J.

The petitioner herein, who is the sister of the detenu viz., Hariharan, aged about 25 years, S/o.Arumugam who is confined at Central Prison, Coimbatore, has come forward with this petition challenging the detention order passed by the second respondent dated 03.02.2024, slapped on her brother, branding him as "Goonda" 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 for the petitioner, as well as the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in this petition, the learned counsel for the petitioner focused mainly on the ground that the subjective satisfaction of the Detaining Authority that the relatives of the detenu are taking steps to take out the detenu on bail, suffers from nonapplication of mind, as the statement said to have been made by the Inspector of Police that the famiy members of the detenu are taking steps to bring him out on bail, is not dated. The learned counsel further pointed out that, unless the statement made by the Inspector of Police is immediately before the Detention Order, it may not have relevance and hence, the subjective satisfaction of the Detaining Authority based on this undated statement, would vitiate the Detention Order.

4. It is seen from records that the statement of the Inspector of Police, enclosed in the Booklet, stating that the family members of the detenu are taking steps to bring out the detenu on bail, is not dated. On a perusal of the Grounds of Detention, it is seen that, in Para No.5, the Detaining Authority has observed that the Inspector of Police has given a statement that the relatives of the detenu are taking steps to take him out on bail and has arrived at the subjective satisfaction that the detenu is likely to be released on bail. When the statement of the Inspector of Police stating that the family members of the detenu are taking steps to bring him out on bail is not dated, the veracity of such statement becomes doubtful. The compelling necessity to detain the detenu would also depend on when the statement was made. In the absence of the date, the compelling necessity to detain, becomes suspect. Hence, this Court is of the view that the subjective satisfaction of the Detaining Authority based on such undated material, suffers from non-application of mind.

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. 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:- "10.

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 and in view of the aforesaid facts, this Court is of the view that the detention order is liable to be quashed.

7. Hence, for the aforesaid reasons, the detention order passed by the second respondent on 03.02.2024 in C.No.04/G/IS/Tiruppur City/2024, is hereby set aside and the Habeas Corpus Petition is allowed.

The detenu viz., Hariharan, aged about 25 years, S/o.Arumugam who is confined at Central Prison, Coimbatore, is directed to be set at liberty forthwith, unless he is required in connection with any other case. [M.S.R., J] [S.M., J] 29.07.2024 Index: Yes/No Tsg To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The Commissioner of Police, Tiruppur City, Tiruppur District.

3.The Superintendent of Prison, Central Prison, Coimbatore, Coimbatore District.

4.The Inspector of Police, South Police Station, Tiruppur City.

5.The Public Prosecutor, High Court, Madras.

M.S.RAMESH, J.

and SUNDER MOHAN, J.

Tsg H.C.P.No.1645 of 2024 29.07.2024