Bhavani v. The State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.05.2016

CORAM

THE HON'BLE MR.JUSTICE G.CHOCKALINGAM and THE HON'BLE MR.JUSTICE M.V.MURALIDARAN H.C.P.No.302 of 2016 Bhavani

...Petitioner

Vs.

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

2.The Commissioner of Police, Chennai City, Egmore, Chennai-8.

...Respondents

Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, to call for the records and quash the same leading to the detention of the petitioner's son namely Ragul, son of Saibabu, aged 24 years, detained under Act 14/82 vide detention order dated 01.02.2016 on the file of the 2nd respondent herein made in Memo No.41/BCDFGISSSV/2016 the same and consequently direct the respondent herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty. For Petitioner : Mr.M.Baskar For Respondents : Mr.M.Maharaja Addl. Public Prosecutor

O R D E R

[Order of the Court was made by G.CHOCKALINGAM, J.] Challenge is made to the order of detention passed by the second respondent vide Proceedings in 41/BCDFGISSV/2016 dated 01.02.2016, whereby the detenu/son of the petitioner, by name, Rahul, son of Saibabu, aged 24 years, was ordered to be detained under the provisions of 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) branding him as a "Goonda".

2.Though many grounds have been raised in the petition, Mr.M.Baskar, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.

3.Learned counsel appearing for the petitioner submitted that the detenu has been remanded in the adverse cases in Cr.No.1456/2015, 1593/2015 and 1762/2015 and in the ground case in Cr.No.48/2016 registered by T-1, Ambattur Police Station and the bail applications filed by him for the above said cases in Crl.MP.Nos.356/2016, 355/2016, 354/2016 and 357/2016 on the file of the learned Principal District and Sessions Judge, Thiruvallur, are pending. But the Detaining Authority, in the Grounds of Detention, has relied upon a similar case in Cr.No.1771/2015 registered by D-5 Marina Police Station, wherein the accused was granted bail by this Court in Crl.OP.No.14668/2015.

It is submitted that when reliance is placed on a similar case by the Detaining Authority to arrive at the subjective satisfaction, he has to place reliance only on such case, in which bails is granted by a Court similar to that of the Court/Courts where the bail applications of the detenu are pending and not the order of a superior Court. This is indicative of non-application of mind on the part of the Detaining Authority and thus, the detention order is vitiated on the above sole ground and the same is liable to be quashed.

4.Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed. 5.We have heard the learned counsel for both sides with regard to the facts.

6.As evidenced from the Grounds of Detention, in particular, paragraph 4, the Detaining Authority has arrived at the subjective satisfaction that the detenu would be granted bail in the ground case [Cr.No.48/2016] as well as in the adverse cases [Cr.No.1456/2015, 1593/2015 and 1762/2015], in which case bail applications were pending before the learned Principal District and Sessions Judge, Thiruvallur, in Crl.MP.Nos.356/2016, 355/2016, 354/2016 and 357/2016 respectively, by placing reliance on a similar case wherein, bail was granted to an accused in a case in Cr.No.1771/2015 registered by D-5 Marina Police Station, by this Court in Crl.OP.No.14668/2015.

Whenever a bail application in connection with any adverse case or ground case is pending

before a lower Court and if the Detaining Authority arrives at the subjective satisfaction that the detenu would be granted bail in the said cases by placing reliance upon an order passed in a similar case, such order should be one passed by a Court subordinate to the High Court and not the order of the High Court itself, as has been done in the instant case. This is indicative of total non-application of mind on the part of the Detaining Authority. Therefore, the detention order is vitiated and liable to be quashed on this ground alone.

7.It is trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal. 8.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned ground.

9. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order passed by the second respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.

Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar To 1.The Secretary to Government, The State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai 600 009.

2.The Commissioner of Police, Chennai City, Egmore, Chennai-8.

3.The Superintendent Central Prison, Puzhal, Chennai.

4. The Saint Secretary to Government Public ( Law & Order), Fort Saint George, Chennai 9.

5.The Public Prosecutor High Court, Madras.

H.C.P.No.302 of 2016 rsy co kra 30.05.2016