Durga v. The Additional Chief Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 01.11.2023

CORAM

THE HONOURABLE MR . JUSTICE S.S.SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1738/2023 Durga N ..

Petitioner

Versus

1.The Additional Chief Secretary to Government Home, Prohibition & Excise Department Secretariat, Chennai 600 009.

2.The Commissioner of Police Greater Chennai, O/o.The Commissioner of Police Vepery, Chennai 600 054.

3.The Inspector of Police K10 Koyambedu Police Station Koyambedu, Chennai District.

4.The Superintendent of Prison Central Prison, Puzhal, Chennai.

.. 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 17.05.2023 in BCDFGISSSV No.176/2023 against the petitioner's brother Karthik @ Solution Karthik, son of Rajendran, aged about 28 years, who is confined at Central Prison, Puzhal, Chennai, and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner :

Mr.M.Manimaran 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 Karthik @ Solution Karthik, aged 28 years, son of Rajendran, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 17.05.2023 slapped on her brother, branding him as "Goonda" 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 grounds are raised in the petition, the learned counsel for the petitioner submitted that the bail order in the similar case relied on by the Detaining Authority to arrive at the subjective satisfaction that the detenu is likely to be released on bail in the ground case, was obtained where the learned Public Prosecutor had not objected for grant of bail to the accused therein.

(4)On a perusal of the Grounds of Detention, it is seen that the Detaining Authority had relied upon the order of bail passed in a similar case in Crl.MP.No.21605/2019 by the learned Principal Sessions Judge, Chennai, to arrive at the subjective satisfaction that the detenu is likely to be released on bail in the ground case. However, bail was granted to the accused in the similar case in Crl.MP.No.21605/2019 as there was no objection on the side of the prosecution to release the accused therein on bail. Further, it was also recorded that the accused in the similar case has got no previous case. However, in the instant case, there are two adverse cases against the detenu herein and therefore, it is not likely that the detenu will also be released on bail. It is in the said circumstances, this Court finds that the subjective satisfaction arrived at by the Detaining

Authority suffers from non-application of mind. Hence, on the above ground, the Detention Order is liable to be quashed. (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.

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. 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 reason, 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 17.05.2023 in BCDFGISSSV No.176/2023 is hereby set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case. [S.S.S.R., J.] [S.M, J.] 01.11.2023 AP

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

2.The Commissioner of Police Greater Chennai, O/o.The Commissioner of Police Vepery, Chennai 600 054.

3.The Inspector of Police K10 Koyambedu Police Station Koyambedu, Chennai District.

4.The Superintendent of Prison Central Prison, Puzhal, Chennai.

5.The Public Prosecutor High Court, Madras.

S.S.SUNDAR, J., AND SUNDER MOHAN, J., AP H.C.P.No.1738/2023 01.11.2023