Valliammal v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 21.12.2023

CORAM

THE HONOURABLE MR . JUSTICE S.S.SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1378/2023 Valliammal ..

Petitioner

Versus

1.State of Tamilnadu rep by Additional Chief Secretary Home, Prohibition and Excise Department Fort St George, Chennai 600 009.

2.The Commissioner of Police Greater Chennai, Vepery Chennai 600 007.

3.The Inspector of Police E4 Abhiramapuram Police Station Chennai.

4.The Superintendent of Prison Central Prison-II, Puzhal, Chennai 600 066.

.. Respondents

Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus calling for the records relating to the detention order in Memo No.272/BCDFGISSSV/2023 dated 27.06.2023 passed by the 2nd respondent under the Tamil Nadu Act 14 of 1982 and set aside the same and direct the respondent to produce the petitioner's grandson Thiru Vijayakumar @ Bigshow son of Selvam, aged about 24 years, the detenu now confined in Central Prison, Puzhal, Chennai before this Court and set the petitioner's grandson Thiru Vijayakumar @ Bigshow son of Selvam aged about 24 years the detenu herein at liberty. For Petitioner :

Mr.R.Muthukumar 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, grandmother of the detenu has come forward with this petition challenging the detention order passed by the 2nd respondent dated 27.06.2023 slapped on her grandson, 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 petitioner, the learned counsel for the petitioner submitted 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 as the order passed in the similar case in Crl.MP.No.2054/2021 by the learned Sessions Judge, Chennai, is not similar to the present case. Learned counsel pointed out that the learned Judge while granting bail to the accused in the similar case, the learned Judge had taken note of the fact that the accused therein had got only one previous case. Whereas, it is not so in the case of the detenu. Hence, it is stated that the detention order is liable to be quashed on the ground of total non application of mind.

(4)This Court, upon examination of the records, is unable to discard the contention of the learned counsel for the petitioner. From a perusal of the Booklet, in particular, page No.233, it is seen that the Detaining Authority has relied upon the bail order in Crl.MP.No.2054/2021 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.2054/2021 has particularly recorded the fact that the accused therein has got only one previous case. Whereas, the detenu herein has got seven 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. Since no details had been given about the alleged similar cases in which bail was allegedly granted by the Court concerned, it is held by Hon'ble Supreme Court that in the absence of details, the statement which is mere ipse dixit, cannot be relied upon and 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.

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)Accordingly, the detention order passed by the 2nd respondent dated 27.06.2023 in No.272/BCDFGISSSVS/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] 21.12.2023 AP Internet : Yes

To 1.The Additional Chief Secretary State of Tamilnadu Home, Prohibition and Excise Department Fort St George, Chennai 600 009.

2.The Commissioner of Police Greater Chennai, Vepery Chennai 600 007.

3.The Inspector of Police E4 Abhiramapuram Police Station Chennai.

4.The Superintendent of Prison Central Prison-II, Puzhal, Chennai 600 066.

5.The Public Prosecutor High Court, Madras.

S.S.SUNDAR, J., AND SUNDER MOHAN, J., AP H.C.P.No.1378/2023 21.12.2023