Abitha v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.09.2024 CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM AND THE HONOURABLE MR. JUSTICE V.SIVAGNANAM H.C.P.No.2048 of 2024 Abitha ... Petitioner/Wife of the Detenue Vs.
1.
State of Tamil Nadu, Represented by the Secretary, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.
2.
The Commissioner of Police, Greater Chennai, Office of the Commissioner of Police (Goondas Section), Chennai - 600 054.
3.
The Superintendent of Prison, Central Prison, Puzhal, Chennai District.
4.
The Inspector of Police, S-7, Madipakkam Police Station, Chennai.
... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records relating to the detention order vide Memo BCDFGISSSV No.625/2024 dated 04.06.2024 passed by the second respondent and quash the same and direct the respondents herein to produce the petitioner's husband namely Arun @ Otha Rupai Arun S/o. Pichandi, aged 24 years, (who is presently under going detention in the Central Prison, Puzhal, Chennai) before this Court and set him at liberty.
For Petitioner : Mr.N.Arun Kumar For Respondents : Mr. E. Raj Thilak Additional Public Prosecutor
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.) The preventive detention order passed by the second respondent dated 04.06.2024 is sought to be quashed in the present habeas corpus petiiton.
2. Heard the learned counsel for the petitioner, as well as the learned Additional Public Prosecutor appearing for the respondents.
3. Though several grounds are raised in this petition, the learned counsel for the petitioner focused mainly on the ground that the subjective satisfaction of the Detaining Authority that the relatives of the detenu are taking steps to take out the detenu on bail, suffers from non-application of mind, as the statement under 161 Cr.P.C., enclosed at page no.127 in Volume-I of the booklet served on the detenu said to have been made by the detenu's relative before the Sponsoring Authority, is not dated. Hence, the learned counsel for the petitioner raised a bona fide doubt as to when this statement was obtained from the petitioner's relative. The learned counsel further pointed out that, unless the statement relied upon by the Sponsoring Authority is immediately before the Detention Order, it may not have relevance and hence, the subjective satisfaction of the Detaining Authority based on this undated statement, would vitiate the Detention Order.
4. It is seen from records that the statement obtained by the Sponsoring Authority from the detenu's relative, enclosed in the Booklet, stating that they are planning to file a bail application to bring out the detenu on bail, is not dated. On a perusal of the Grounds of Detention, it is seen that, in Para No.3, the Detaining Authority has observed that the Sponsoring Authority has stated that he came to understand that the relatives of the detenu are taking steps to take him out on bail by filing bail application before the appropriate Court and has arrived at the subjective satisfaction that the detenu is likely to be released on bail.
When the statement obtained by the Sponsoring Authority from the relatives of the detenu stating that they are planning to file bail application to bring out the detenu on bail is not dated, the veracity of such statement becomes doubtful. The compelling necessity to detain the detenu would also depend on when the statement was obtained. In the absence of the date, the compelling necessity to detain, becomes suspect. Hence, this Court is of the view that the subjective satisfaction of the Detaining Authority based on such undated material, 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 dealt 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 non-existent 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. It is relevant to extract paragraph Nos.10 and 11 of the said judgment of the Hon'ble Supreme Court:- "10.
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. Hence, for the aforesaid reasons, the detention order passed by the second respondent on 04.06.2024 in BCDFGISSSV No.625/2024, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Arun
@ Otha Rupai Arun, S/o. Pichandi confined at Central Prison, Puzhal, Chennai, is directed to be set at liberty forthwith, unless he is required in connection with any other case.
[S.M.S., J.] [V.S.G., J.] 05.09.2024 Index :
Yes/No Speaking Order :
Yes/No :
Yes/No veda
To 1.
State of Tamil Nadu, Represented by the Secretary, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.
2.
The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai - 9.
3.
The Commissioner of Police, Greater Chennai, Office of the Commissioner of Police (Goondas Section), Chennai - 600 054.
4.
The Superintendent of Prison, Central Prison, Puzhal, Chennai District.
5.
The Inspector of Police, S-7, Madipakkam Police Station, Chennai.
6.
The Public Prosecutor, Madras High Court, Chennai - 104.
S.M.SUBRAMANIAM, J.
AND V.SIVAGNANAM, J.
veda H.C.P.No.2048 of 2024 05.09.2024