Menaka v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 30.11.2023

CORAM

THE HONOURABLE MR . JUSTICE S.S.SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1374/2023 Menaka ..

Petitioner

Versus

1.The Secretary to the Government Home, Prohibition & Excise [XVI] Department Secretariat, Chennai-600 009.

2.The Commissioner of Police O/o.The Commissioner of Police Avadi City.

3.The Superintendent or Prison Central Prison, Puzhal, Chennai.

4.The Inspector of Police T12 Poonamallee Police Station Chennai District.

.. Respondents Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus calling for the entire records

connected with the detention order in BCDFGISSSV No.173/2023 on the file of the respondent No.2 and quash the same and direct the respondents to produce the body and person of petitioner son one named Mr.Naveenkumar @ Pallu Naveenkumar, son of Sureshbabu, aged about 23 years now confined at Central Prison, Puzhal before this Court and set him at liberty forthwith.

For Petitioner :

Mr.P.Muthamizhselvakumar For Respondents :

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

O R D E R

[Order of the Court was made by S.S.SUNDAR, J.] (1)The petitioner, mother of the detenu, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 05.07.2023 slapped on her son, branding him as "Drug Offender" 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)The learned counsel for the petitioner though canvassed several points before this Court, this Court is able to find some force in his submission that there is no application of mind on the part of the Detaining Authority in arriving at the subjective satisfaction that the detenu is likely to be released on bail in the ground case by referring to an order passed in the similar case in Crl.MP.No.1414/2021 by the learned Principal Special Judge under EC&NDPS Act, Chennai. Learned counsel pointed out that the learned Judge while granting bail to the accused in the similar case, had observed that the accused therein has got only one previous case. Whereas, the detenu in the present case has four previous cases.

This aspect was not considered by the Detaining Authority while arriving at the subjective satisfaction that the detenu is likely to be released on bail in the ground case and hence, the learned counsel submitted that the subjective satisfaction of the Detaining Authority suffers from non application of mind. Hence, on the above ground, the Detention Order is liable to be quashed.

(4)From a perusal of the Booklet, in particular, page No.93, it is seen that the Detaining Authority has relied upon the said bail order in

Crl.MP.No.1414/2021 granted to the accused therein, to arrive at the subjective satisfaction that the detenu herein is likely to be released on bail in the ground case. However, it is to be pointed out that the learned Judge while granting bail in Crl.MP.No.1414/2021 has particularly observed that the accused therein had got only one previous case. Whereas, the detenu herein has got four previous cases. The Detaining Authority has not taken into consideration this vital aspect, while arriving at the subjective satisfaction. Hence, the subjective satisfaction of the Detaining Authority 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 considered a case where it is stated that in the grounds of detention that relatives of detenu are taking action to take him on bail in the criminal case in which the detenu was in remand and that in similar cases, bail was granted by Courts.

that itself is sufficient to 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 paragraphs No.10 and 11 of the said judgment of the Hon'ble Supreme Court:- ''10.

In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail 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.

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 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 05.07.2023 in BCDFGISSSV No.173/2023 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. [S.S.S.R., J.] [S.M, J.] 30.11.2023 AP Internet : Yes

To 1.The Secretary to the Government Home, Prohibition & Excise [XVI] Department Secretariat, Chennai-600 009.

2.The Commissioner of Police O/o.The Commissioner of Police Avadi City.

3.The Superintendent or Prison Central Prison, Puzhal, Chennai.

4.The Inspector of Police T12 Poonamallee Police Station Chennai District.

5.The Public Prosecutor High Court, Madras.

S.S.SUNDAR, J., AND SUNDER MOHAN, J., AP H.C.P.No.1374/2023 30.11.2023