Anusuya v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11.12.2023 CORAM :

THE HON'BLE MR. JUSTICE S.S.SUNDAR AND THE HON'BLE MR.JUSTICE SUNDER MOHAN Anusuya W/o Selvaraj ..

Petitioner v.

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

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

3. The Superintendent of Prison Central Prison, Puzhal Chennai 600 066

4. State rep.by its The Inspector of Police Nungambakkam Police Station Chennai ..

Respondents

Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Habeas Corpus, to call for the entire records relating to the petitioner's son detention under Tamil Nadu Act 14/1982 vide detention order dated 14.07.2023 on the file of the second respondent herein made in proceedings Memo in BCDFGISSSV No.319/2023, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's son namely Manikandan @ Keera Mani, S/o Selvaraj, aged 26 years, before this Honble Court and set the petitioner's son at liberty from detention, now the petitioner's son detained at Central Prison, Puzhal, Chennai.

For Petitioner ::

M/s S.Vedavalli For Respondents ::

Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.C.Aravind, Advocate

ORDER

(Order of the Court was made by S.S.SUNDAR,J.) The petitioner, who is the mother of the detenu, namely, Manikandan @ Keerai Mani, aged 26 years, S/o Selvaraj, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 14.07.2023 slapped on her son, branding him as 'Drug Offender' under 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).

2. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in the petition, the learned counsel appearing for the petitioner submitted that the similar case bail order relied upon by the detaining authority, is not similar to the case on hand. Referring to the fact that the accused therein was granted bail only on the ground that there was no previous case reported against the accused therein, it is now pointed out before this Court that there is one adverse case against the detenu in the present case. Therefore, the learned counsel submitted that the subjective satisfaction of the detaining authority suffers from nonapplication of mind and the same vitiates the detention order.

4. This Court, on perusal of page 194 of the booklet, finds that bail was granted to the accused in similar case recording the fact that no previous case was reported against the accused therein. Whereas the detenu in the

present case is involved in one adverse case. In such circumstances, the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail, suffers from total non-application of mind and is a mere ipse dixit, as held by the Hon'ble Supreme Court in the case of Rekha v. State of Tamil Nadu through Secretary to Government and another, (2011) 5 SCC 244, wherein it has been held as follows:- "7. A perusal of the above statement in Para-4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned.

Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon.

the detention order."

27.In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.''

In view of the law enunciated by the Hon'ble Supreme Court in Rekha's case, this Court is convinced that the impugned detention order is liable to be quashed.

5. Accordingly, the detention order passed by the 2nd respondent dated 14.07.2023 in BCDFGISSSV No.319/2023 is hereby set aside and the habeas corpus petition is allowed. The detenu viz., Manikandan @ Keerai Mani, S/o Selvaraj, aged 26 years, is directed to be set at liberty forthwith, unless he is required in connection with any other case. Index : yes/no (S.S.S.R.,J.) (S.M.,J.) 11.12.2023 ss To

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

2. The Commissioner of Police Greater Chennai Office of the Commissioner of Police Vepery Chennai 600 007

3. The Superintendent of Prison Central Prison, Puzhal

Chennai 600 066

4. The Inspector of Police Nungambakkam Police Station Chennai

5. The Public Prosecutor High Court, Madras

S.S.SUNDAR,J.

AND SUNDER MOHAN,J.

ss 11.12.2023