Syed Mohammed Basha @ Batcha v. The Additional Chief Secretary To Government,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.11.2023 CORAM :

THE HON'BLE MR. JUSTICE S.S.SUNDAR AND THE HON'BLE MR.JUSTICE SUNDER MOHAN Syed Mohammed Basha @ Batcha S/o Kaleel Rahuman ..

Petitioner v.

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

2. The Commissioner of Police Greater Chennai Chennai 600 007

3. The Superintendent Central Prison, Puzhal Chennai 600 066

4. The Inspector of Police J5, Sasthri Nagar 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 records of pertaining to the order of detention dated 25.11.2022 passed by the 2nd respondent in Memo No.440/BCDFGISSSV/2023 and quash the same and produce the petitioner/detenu, Syed Mohammed Basha @ Batcha, S/o Kaleel Rahuman, aged about 27 years, detained at Central Prison, Puzhal, Chennai before this Hon'ble Court and set him at liberty. For Petitioner ::

Mr.K.Gokulram 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, being the detenu, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 25.11.2022, 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 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 confined his argument to the point that the detaining authority has relied upon the bail order passed in Crl.M.P.No.10485 of 2021 by the Sessions Court, Chennai in respect of the accused in similar case, which is not similar to the case on hand, as the bail was granted to the accused in similar case considering the Covid-19 pandemic. Therefore, the detention order is liable to be set aside on the sole ground that the subjective satisfaction of the detaining authority regarding the possibility of the detenu coming out on bail in the ground case, suffers from non-application of mind.

4. This Court perused page-212 of the booklet and is convinced with the statement of the learned counsel for petitioner that bail was granted to the accused in similar case due to the Covid-19 situation. This Court has held in several cases that the detention order is vitiated if there is no

application of mind as to the real ground on which the bail was granted to the accused in similar case. It is also relevant to point out that 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, has held that 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 nonapplication 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, as follows:- "10.

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.'' In view of the position of law enunciated by the Hon'ble Supreme Court in Rekha's case, this Court finds that the impugned detention order is vitiated for non-application of mind.

5. Accordingly, the detention order passed by the 2nd respondent dated 25.11.2022 in BCDFGISSSV No.440/2022 is hereby set aside and the habeas corpus petition is allowed. The detenu viz., Syed Mohammed Basha

@ Batcha, S/o Kaleel Rahuman, aged 27 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.) 23.11.2023 ss To

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

2. The Commissioner of Police Greater Chennai Chennai 600 007

3. The Superintendent Central Prison, Puzhal Chennai 600 066

4. The Inspector of Police J5, Sasthri Nagar Police Station Chennai

5. The Public Prosecutor High Court, Madras

S.S.SUNDAR,J.

AND SUNDER MOHAN,J.

ss 23.11.2023