Anbarasi v. Additional Chief Secratary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Anbarasi .. Petitioner Vs 1.The State rep. By The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Kamarajar Salai, Chennai - 9.
2.The Commissioner of Police, Greater Chennai, Vepery, Chennai - 7.
3.The Superintendent of Prison, Central Prison, Puzhal, Chennai - 66.
4.The Inspector of Police, H-4, Korukkupet Police Station, Korukkupet, Chennai - 21.
.. Respondents 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 vide order dated 15.05.2023 in Memo No.168/BCDFGISSSV/2023 against the petitioner's son/detenu (Akash Page Nos.1/9
@ Akash Viswanathan, S/o.Venkatesan @ Venkatta, aged about 46 years) confined at Central Prison, Puzhal, Chennai under the Tamil Nadu Act 14 of 1982 and set aside the same and consequently direct the respondents to produce the body of the detenu before this Court and set him at liberty forthwith.
For Petitioner :
Mr.S.Senthilvel for Mr.G.Prabhakaran 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.,] This order will now dispose of captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity, convenience and clarity].
2. When the captioned HCP was listed for Admission on 26.07.2023, the following proceedings/order was made: 'H.C.P.No.1376 of 2023 M.SUNDAR, J.
and R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR, J.,) Captioned Habeas Corpus Petition has been filed in this Court on 18.07.2023 inter alia assailing a 'detention order dated Page Nos.2/9
15.05.2023 bearing reference No.168/BCDFGISSSV/2023' (hereinafter 'impugned preventive detention order' for the sake of convenience and clarity) made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fourth respondent is the Sponsoring Authority.
2. To be noted, mother of detenu is the petitioner.
3. Mr.G.Prabhakaran, learned counsel on record for petitioner submits that ground case qua the detenu is for alleged offence under Section 302 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] in Crime No.71 of 2023 on the file of H4 Korukkupet Police Station.
4. The aforementioned impugned preventive detention order has been made on the premise that the detenu is a 'Goonda' under Section 2(f) of 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drugoffenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity].
5. The impugned preventive detention order has been assailed inter alia on the ground that some of the pages in the booklet furnished to the detenu are illegible.
6. Prima facie case made out for admission. Admit. Issue Rule Nisi returnable by four weeks.
7. Mr.E.Raj Thilak, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly. '
3. The aforementioned proceedings/order dated 26.07.2023 captures all essentials i.e., essential facts imperative for appreciating this final order and therefore we are not setting out the facts again. Suffice to say that the aforementioned Admission Board order dated Page Nos.3/9
26.07.2023 shall now be read as an integral part and parcel of the instant final order. This also means that the short forms, short references and abbreviations used in the aforementioned Admission Board order will continue to be used in the instant final order also.
4. Mr.S.Senthilvel, learned counsel representing the counsel on record for petitioner and Mr.E.Raj Thilak, learned Additional Public Prosecutor assisted by Mr.C.Aravind, learned counsel for all the respondents are before us.
5. As would be evident from paragraph 5 of the Admission Board order, at the time of admission, learned counsel for petitioner posited his challenge against the impugned preventive detention order on the ground that some of the pages in the booklet furnished to the detenu are illegible, however, in the Final Hearing Board, learned counsel for petitioner changed his line of attack qua his campaign against the impugned preventive detention order and submitted that subjective satisfaction arrived at by the detaining authority qua imminent possibility of detenu being enlarged on bail is erroneous.
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6. Elaborating on the aforementioned submission, in the Final Hearing Board today, learned counsel submitted that such subjective satisfaction has been arrived at by the Detaining Authority by relying on Balaji's case bail order being bail order dated 26.05.2021 in Crl.M.P.No.10485 of 2021 on the file of Sessions Court, Chennai. Relevant portion in paragraph No.4 of the grounds of impugned preventive detention order reads as follows:
'4......In a similar case registered u/s 147, 148, 449, 324, 302 IPC in R3 Ashok Nagar Police Station in Cr.No.59/2021, the bail was granted by the Principal Sessions Court, Chennai in Crl.M.P.No.10485/2021. Hence, I infer that there is a real possibility of his coming out on bail by filing bail application in H4 Korukkupet Police Station Cr.No.71/2023 before the appropriate court, since in a similar case, the bail was granted by court after a lapse of time......'
7. A careful perusal of Balaji's case bail order, more particularly paragraph 5 thereat brings to light that the then prevailing Covid-19 situation had weighed in the minds of the learned Sessions Judge in granting bail. Paragraph 5 of Balaji's case bail order reads as follows: Page Nos.5/9
'5.The petitioners have been in custody for the past 75 days. No previous case is reported as against the petitioners. Considering the duration of custody and stage of the case and existing Covid-19 situation, this Court is inclined to grant bail to the petitioners subject to condition.'
8. Learned Prosecutor submitted to the contrary by saying that alleged offences in Balaji's case and case on hand are broadly comparable.
9. We carefully considered the rival submissions.
10. 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, Balaji'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 Page Nos.6/9
possibility' is qua probability. Therefore, subjective satisfaction as regards imminent possibility of detenu being enlarged on bail arrived at by the detaining authority by relying on a bail order wherein bail has been granted owing to then prevalent Covid-19 situation, is impaired leading to the inevitable sequitur that impugned preventive detention order is vitiated and that it deserves to be dislodged.
11. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 15.05.2023 bearing reference No.168/BCDFGISSSV/2023 made by the second respondent is set aside and the detenu Thiru.Akash @ Akash Viswanath, aged 24 years, Son of Thiru.Venkatesan @ Venkatta, 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.) 27.09.2023 Index : Yes/No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai. Page Nos.7/9
To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Kamarajar Salai, Chennai - 9.
2.The Commissioner of Police, Greater Chennai, Vepery, Chennai - 7.
3.The Superintendent of Prison, Central Prison, Puzhal, Chennai - 66.
4.The Inspector of Police, H-4, Korukkupet Police Station, Korukkupet, Chennai - 21.
5.The Public Prosecutor, High Court, Madras.
Page Nos.8/9
M.SUNDAR, J., and R.SAKTHIVEL, J., mmi 27.09.2023 Page Nos.9/9