Madras High CourtHCP/1865/2024allowed

Nathiya v. The Secretary To Government,

2024-08-27Honourable Mr Justice S.M. Subramaniam,Honourable Mr Justice V.Sivagnanam9 pages

2024:MHC:3351 2024:MHC:3365

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.08.2024 DATED : 27.08.2024

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM AND AND THE HONOURABLE MR.JUSTICE V.SIVAGNANAM THE HONOURABLE MR.JUSTICE V.SIVAGNANAM Nathiya ... Petitioner Nathiya ... Petitioner Vs.

Vs.

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

2.District Collector and District Magistrate, Vellore District, Vellore.

3.The Superintendent of Police, Vellore District, Vellore.

4.The Superintendent of Prison, Central Prison, Vellore.

5.The Inspector of Police, Veppankuppam Police Station, Vellore District.

... Respondents 5.The Inspector of Police, Veppankuppam Police Station, Vellore District.

... Respondents

Prayer: Habeas Corpus Petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the 2nd respondent dated 21.07.2024 C3/D.O.No.53/2024 against the petitioner husband Jayapal, Male aged 34 years S/o. Chakkaravarthi, who is confined at Central prison, Vellore and set aside the same and direct the respondents to produce the detenue before the Court and set him at Liberty. For Petitioner : Mr.D.Balaji For Respondents : Mr.E.Raj Thilak Additional Public Prosecutor

O R D E R

[Order of the Court was made by S.M.SUBRAMANIAM, J.] The order of detention passed by the 2nd respondent in C3/D.O.No.53/2024 dated 21.07.2024 is sought to be quashed in the present Habeas Corpus Petition.

2. The learned counsel for the petitioner would submit that the Detaining Authority relied on some cases registered by the Kurusilapet Police Station in Crime No.72 of 2023, wherein, the Court of Principal

Sessions Judge, Vellore granted bail in Crl.M.P.No.2098 of 2023. However, in the similar case, the accused was having no previous cases. Thus, there was no objection on the side of prosecution to grant bail.

3. Per contra, in the present case, the detenu is facing four criminal cases. Therefore, the opinion formed by the Detaining Authority that there is a likelihood of grant of bail to the detenu is not placed on any materials available on record. Therefore, the order relied upon by the Detaining Authority cannot be said to be similar, subject to the satisfaction vitiated and suffers from non-application of mind.

4. Similar case need not be on similar facts. However, the anology and the legal principles adopted must be similar, so as to form an opinion that the Detaining Authority has not applied his mind. Therefore, similarity does not mean or relatable to the facts of the case, but relatable to the legal principles and the grounds on which the bail was granted in the similar case.

5. The Hon'ble Supreme Court of India, in the case of Rekha vs. State of Tamil Nadu through Secretary to Government and Another1, has dealt [2011 (5) SCC 244]

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 nonexistent 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. The relevant paragraphs 10 and 11 are extracted hereunder;

"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 coaccused 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. Hence, mere subjective satisfaction would be insufficient to invoke preventive detention law. Such subjective satisfaction must have nexus, link and proximity relating to the adverse cases relied on. Perusal of the records in the present case would reveal that the similar case relied on is not actually similar, since in the said case the accused had one previous case, but in the present case, the detenue is having about four previous cases. Thus, there is no application of mind and the detention order in the present case, is liable to be quashed.

7. Accordingly, the detention order passed by the 2nd respondent in C3/D.O.No.53/2024 dated 21.07.2024, is hereby set aside and the Habeas

Corpus Petition is allowed. The detenu viz., Jaypal, S/o.Chakkaravarthi, aged 34 years, now confined at Central Prison, Vellore is directed to be set at liberty forthwith, unless his confinement is required in connection with any other case.

[S.M.S., J.] [V.S.G., J.] 27.08.2024 Jeni Index : Yes Speaking order To 1.The Secretary to the Government, Home Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.District Collector and District Magistrate, Vellore District, Vellore.

3.The Superintendent of Police, Vellore District, Vellore.

4.The Superintendent of Prison, Central Prison, Vellore.

5.The Inspector of Police, Veppankuppam Police Station, Vellore District.

6.The Public Prosecutor, Madras High Court.

S.M.SUBRAMANIAM, J.

and V.SIVAGNANAM, J.

Jeni 27.08.2024