Marry v. Principal Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Marry W/o.Philips .. Petitioner Vs.
1.
The Principal Secy. to Government Home, Prohibition and Excise Dept., Secretariat Chennai-600 009.
2.
The Commissioner of Police Tambaram City.
3.
The Superintendent of Prison Central Prison, Puzhal Chennai-66.
4.
The Inspector of Police T-4 Sankar Nagar Police Station Chennai.
..
Respondents Page Nos.1/8
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records in connection with the order of detention passed by the second respondent dated 27.07.2022 in Memo No.113/BCDFGISSSV/2022 against the petitioner's son Bethuru, male aged 29 years, s/o.Philips, who is confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before the Hon'ble Court and set him at liberty. For Petitioner :
Mr.S.Senthilvel For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor assisted by Mr.M.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 mother of the detenu assailing a 'preventive detention order dated 27.07.2022 bearing reference BCDFGISSSV No.113/2022' [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 the impugned detention order has been made by second respondent.
Page Nos.2/8
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 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3. There is one adverse case and one ground case. The ground case which constitutes a sizable chunk of the substratum of the impugned detention order is Crime No.382 of 2022 on the file of T-4 Sankar Nagar Police Station for the alleged offences under Sections 147, 148, 294(b), 324, 336, 341, 307 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. 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. Page Nos.3/8
4. Mr.S.Senthilvel, learned counsel on record for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor, assisted by Mr.M.Sylvester John, learned counsel for all respondents are before us.
5. Though several grounds have been raised and articulated in the support affidavit qua captioned HCP, in the hearing today learned counsel on record for petitioner predicated his campaign against the impugned detention order on one point and that one point turns on subjective satisfaction arrived at by the Detaining Authority as regards imminent possibility of the detenu being enlarged on bail. Adverting to paragraph No.3 of the impugned detention order, learned counsel pointed out that Crime No.382 of 2022 on the file of T-4 Sankar Nagar Police Station for alleged offences under Sections 147, 148, 294(b), 324, 336, 341, 307 and 506(ii) of IPC is the ground case. The detenu was arrested in the ground case on 28.06.2022. In paragraph No.4 of the impugned detention order, the Detaining Authority has relied on a bail order dated 05.02.2021 in Crl.M.P.No.258 of 2021 on the file of the Principal Sessions Judge's Court, Kancheepuram District at Chengalpattu for arriving at subjective Page Nos.4/8
satisfaction qua imminent possibility of detenu being enlarged on bail. In other words, this order dated 05.02.2021 which pertains to Nishanth and two others has been relied on as a similar case. This order i.e., order in what according to the Detaining Authority is similar case has been furnished to the detenu as part of the booklet containing grounds and this bail order is at Page Nos.144 and 145.
6. We have carefully perused the bail order. We find that in Nishanth and two others case, the accused did not have any prior case. A careful perusal of the order, more particularly penultimate paragraph of the order of learned Sessions Judge brings to light that this has inter alia weighed in the mind of learned Sessions Judge for exercise of discretion in favour of grant of bail. Learned counsel submitted that in contradistinction, in the case on hand, even according to the impugned detention order, there is one adverse case (the Detaining Authority has noticed antecedents). Therefore it is a case of comparing Apples and Oranges and / comparing Chalk and Cheese is learned counsel's say. We have no difficulty in accepting the argument of the learned counsel for the petitioner. This means that the impugned Page Nos.5/8
detention order is vitiated owing to subjective satisfaction arrived at by the Detaining Authority as regards imminent possibility of the detenu being enlarged on bail being impaired. This further means that the impugned detention order deserves to be dislodged.
7. Before concluding, we also remind ourselves that preventive detention is not a punishment and HCP is a high prerogative writ.
8. Apropos, the sequitur is, captioned HCP is allowed. Impugned detention order dated 27.07.2022 bearing reference BCDFGISSSV No.113/2022 made by the second respondent is set aside and the detenu Thiru.Bethuru, aged 29 years, son of Thiru.Philips, 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.) (N.A.V.,J.) 23.03.2023 Index : Yes Speaking mk P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai.
Page Nos.6/8
To 1.
The Principal Secy. to Government Home, Prohibition and Excise Dept., Secretariat Chennai-600 009.
2.
The Commissioner of Police Tambaram City.
3.
The Superintendent of Prison Central Prison, Puzhal Chennai-66.
4.
The Inspector of Police T-4 Sankar Nagar Police Station Chennai.
5.
The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and N.ANAND VENKATESH, J., mk 23.03.2023 (2/2) Page Nos.8/8