Santhi v. The Additional Chief Secretary To The Government,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.12.2023

CORAM

THE HONOURABLE MR. JUSTICE S.S.SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1760 of 2023 Santhi ..

Petitioner Vs.

1.The Additional Chief Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9.

2.The Commissioner of Police, Greater Chennai.

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

4.The Inspector of Police (Law and Order), K-10 Koyambedu Police Station, Chennai.

..

Respondents Petition filed under Article 226 of The Constitution of India praying for a Writ of Habeas Corpus to call for the records in connection with the order of detention passed by the second respondent dated 18.07.2023 in Memo No.321/BCDFGISSSV/2023 against the petitioner's son Arunachalam @ Aruval Arunachalam, male, aged 24 years, S/o.Saravanan, 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.S.Senthilvel For Respondents :

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

ORDER

[Order of the Court was made by S.S.SUNDAR, J.] The petitioner, mother of the detenu Arunachalam @ Aruval Arunachalam, has come forward with this petition challenging the detention order passed by the second respondent dated 18.07.2023 slapped on her son, branding him as "Goonda" 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 for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.

3. Though several points have been raised by the petitioner, 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 dated 27.10.2021 passed in the similar case in Crl.M.P.No.19198 of 2021 by the learned Principal Sessions Judge, Chennai, is not similar to the present case. Learned counsel pointed out that the learned Judge while granting bail to the accused in the similar case, had taken note of the fact that the accused therein has got one previous case whereas, the detenu herein has got three previous cases. Hence, the said case cannot be compared to the case of the detenu.

4. This Court, upon examination of the records, is unable to discard the said contention of the learned counsel for the petitioner. From a perusal of the Booklet, in particular, page Nos.143 and 144, it is seen that the Detaining Authority has relied upon the bail order in Crl.M.P.No.19198 of 2021 granted to the accused therein, to arrive at the subjective satisfaction that the detenu 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.M.P.No.19198 of 2021 has particularly recorded the fact that the accused therein has got one previous case

whereas, the detenu herein has got three previous cases. 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 nonapplication 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 coaccused 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 coaccused 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 facts, this Court is of the view

that the detention order is liable to be quashed.

7. In view of the aforesaid reason, the detention order passed by the second respondent dated 18.07.2023 in No.321/BCDFGISSSV/2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Arunachalam @ Aruval Arunachalam, S/o.Saravanan, aged about 24 years, 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.] 13.12.2023 Index:Yes/No mmi To 1.The Additional Chief Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9.

2.The Commissioner of Police, Greater Chennai.

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

4.The Inspector of Police (Law and Order), K-10 Koyambedu Police Station, Chennai.

5.The Public Prosecutor High Court, Madras.

S.S.SUNDAR, J., AND SUNDER MOHAN, J., mmi H.C.P.No.1760 of 2023 13.12.2023