Narasimha v. The Secretary To The Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 19.12.2023

CORAM

THE HONOURABLE MR . JUSTICE S.S.SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1675/2023 Narasimha ..

Petitioner

Versus

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

2.District Collector and District Magistrate of Krishnagiri District, Krishnagiri.

3.The Superintendent of Police Krishnagiri District, Krishnagiri.

4.The Superintendent of Prison Special Prison for Women, Coimbatore-18.

5.The Inspector of Police Hosur PEW Police Station Krishnagiri 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 records in connection with the order of detention passed by the 2nd respondent dated 09.08.2023 in SC.No.17/2023 against the petitioner sister Suma female aged 29 years wife of Thimmarayan who is confined at Special Prison for Women, Coimbatore and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner :

Mr.D.Balaji 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, brother of the detenu herein, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 09.08.2023 slapped on his sister, branding her 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)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 3rd adverse case in Crl.MP.No.978/2022 by the learned Special Judge, Essential Commodities Act Court, Salem, which was relied on as a similar case by the Detaining Authority is not similar to the present case. Learned counsel pointed out that the learned Judge, while granting bail to the detenue in the said case, had recorded the fact that the learned Public Prosecutor was unable to get instructions despite he was given sufficient time and that the procedure was not followed. Whereas, it is not so in the case of the detenu in the ground case. 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.79, it is seen that the Detaining Authority has relied upon the bail order in Crl.MP.No.978/2022 granted to the detenue herein in the 3rd adverse case, to arrive at the subjective satisfaction that the detenue 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.978/2022, has particularly recorded the fact that the mandatory provisions were not followed by the concerned police and despite granting sufficient time, the police had not submitted their remarks. The case of the detenu herein is not similar to that of the case in Crl.MP.No.978/2022 Hence, it cannot be compared with. 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.

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 09.08.2023 in SC.No.17/2023 is hereby set aside and the Habeas Corpus Petition is allowed. The detenue is directed to be set at liberty forthwith unless she is required in connection with any other case. [SSSRJ] [SMJ] 19.12.2023 AP Internet : Yes

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

2.District Collector and District Magistrate of Krishnagiri District, Krishnagiri.

3.The Superintendent of Police Krishnagiri District, Krishnagiri.

4.The Superintendent of Prison Special Prison for Women, Coimbatore-18.

5.The Inspector of Police Hosur PEW Police Station Krishnagiri District.

6.The Public Prosecutor High Court, Madras.

S.S.SUNDAR, J., AND SUNDER MOHAN, J., AP H.C.P.No.1675/2023 19.12.2023