V.Sushmitha v. Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE Mrs.JUSTICE K.GOVINDARAJAN THILAKAVADI V.Sushmitha ..
Petitioner / Wife of detenu Vs.
1.
The Secretary to Government Home Department Secretariat Chennai - 9 2.
The Commissioner of Police Salem City 3.
The Superintendent of Prison Central Prison, Salem 4.
The Inspector of Police Sooramangalam Police Station Salem District ... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the entire records relating Page Nos.1/9
to the detention of the petitioner's husband Thiru.Velchathirian, son of Ammasi, male aged about 38 years who is presently lodged in Central Prison at Salem and has been detained under Act 14/82 as a sexual offender vide detention order dated 21.09.2022 on the file of the 2nd respondent herein, made in C.M.P.No.119/Sexual Offender/2022, quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from the Central Prison, Salem.
For Petitioner :
Mr.E.C.Ramesh For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor Assisted by Mr.Sylvester John, Advocate
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by the wife of the detenu assailing a 'preventive detention order dated 21.09.2022 bearing reference C.M.P.No.119/Sexual Offender/Salem City/2022' [hereinafter 'impugned detention order' for the sake of convenience and brevity]. To be noted, fourth respondent is the sponsoring authority and second respondent is the detaining authority as impugned detention order has been made by second respondent. Page Nos.2/9
2. Impugned detention order has been made 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 No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] on the premise that the detenu is a 'Sexual Offender' within the meaning of Section 2(ggg) of Act 14 of 1982. 3.There is no adverse case. The ground case which is the sole substratum of the impugned detention order is Crime No.29 of 2022 on the file of Sooramangalam All Women Police Station for alleged offences under Sections 342, 354(B), 506(ii) of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity] read with Sections 66E and 67A of Information Technology Act, 2000. Owing to the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.E.C.Ramesh, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, assisted by Mr.Sylvester John, Advocate, for all respondents are before us. Page Nos.3/9
5. Notwithstanding very many grounds that have been urged in the habeas corpus petition support affidavit, Mr.E.C.Ramesh, learned counsel for petitioner predicated his campaign against the impugned preventive detention order on one point and that one point has found favour with us. Therefore, we shall be dealing with that one point which has found favour with us.
6. Learned counsel drew our attention to grounds booklet as well as impugned preventive detention order and submitted that Detaining Authority has relied on a bail order dated 15.12.2021 in Crl.M.P.No.1901 of 2021 in the case of Chinnaraja, son of Dharmalingam to arrive at the subjective satisfaction that there is an imminent possibility of detenu being enlarged on bail. Learned counsel submits that Chinnaraja's case is one of default bail under Section 167(2) of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.P.C' for the sake of brevity and clarity] and therefore, the same cannot be a touchstone or cannot be a basis for testing the imminent possibility of detenu being enlarged on bail.
7. We carefully perused the bail order in Chinnaraja's case which is at page 147 of the booklet and a scanned reproduction of the same is as Page Nos.4/9
follows:
Page Nos.5/9
8. The above order speaks for itself. It is clearly a default bail order as the prosecution has not filed charge sheet though it is well past 65 days in that case. Comparing a default bail and an order under Section 167(2) of Page Nos.6/9
Cr.P.C with a regular bail application under Section 439 of Cr.P.C treating the two as similar is clearly a case of comparing Apples and Oranges. Therefore, we have no difficulty in coming to the conclusion that subjective satisfaction arrived at by the Detaining Authority qua imminent possibility of detenu being enlarged on bail is clearly flawed and the sequitur is, impugned preventive detention order deserves to be dislodged.
9. Ergo, captioned HCP is allowed. Impugned detention order dated 21.09.2022 bearing reference C.M.P.No.119/Sexual Offender/Salem City/2022 made by the second respondent is set aside and the detenu Thiru.Velchathirian, aged 38 years, son of Thiru.Ammasi is directed to be set at liberty forthwith, if not required in connection with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.) 05.06.2023 Index : Yes Speaking gpa P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Salem Page Nos.7/9
To 1.
The Secretary to Government Home Department Secretariat Chennai - 9 2.
The Commissioner of Police Salem City 3.
The Superintendent of Prison Central Prison, Salem 4.
The Inspector of Police Sooramangalam Police Station Salem District 5.
The Public Prosecutor Madras High Court, Chennai Page Nos.8/9
M.SUNDAR, J., and K.GOVINDARAJAN THILAKAVADI, J., gpa 05.06.2023 Page Nos.9/9