Lakshmi v. State Of Tamilnadu Rep.By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.12.2023 CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN Lakshmi ... Petitioner Vs.
1.State of Tamil Nadu, Represented by the Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.
2.The District Magistrate and District Collector, Salem, Salem District.
3.The Superintendent of Police, Salem, Salem District.
4.The Superintendent of Prison, Central Prison, Salem.
5.The Inspector of Police, Prohibition Enforcement Wing, Mettur, Salem District.
... Respondents Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Habeas Corpus to call for the records pertaining to the order of detention passed by the 2nd respondent in C.M.P.No.07/Drug Offender/C2/2023, dated 31.08.2023, against the petitioner's husband Raja @ Anandharaj, male, aged 41 years, S/o.Selvakumar, now confined in Central Prison, Salem, and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.
For Petitioner :
Mr.T.Muruganantham For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.C.Aravind
O R D E R
(Order of the Court was made by S.S. SUNDAR, J.) The petitioner, wife of the detenu namely Raja @ Anandharaj, aged 41 years, S/o.Selvakumar, has come forward with this petition challenging the
detention order passed by the 2nd respondent, dated 31.08.2023 slapped on her husband, branding him as "Drug Offender" under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand 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.The learned counsel for the petitioner submits that the detention order is liable to be quashed on the ground that the subjective satisfaction of the Detaining Authority regarding the possibility of the detenu coming out on bail by relying upon the bail order granted to the accused in a similar case, suffers from non-application of mind, as the accused in the similar case was granted statutory bail u/s.167[2] Cr.P.C., and not on merits. 4.On a perusal of the Booklet, this Court finds that the bail order in the similar case, i.e., Crl.M.P.No.336 of 2020, dated 15.07.2020, relates to
release of the accused on bail u/s.167[2] of Cr.P.C., and not on merits. In other words, the accused therein was under judicial custody for more than 90 days and hence, he was granted statutory bail under Section 167(2) Cr.P.C. Therefore, this Court finds that the case relied upon by the Detaining Authority is not similar to the present case in which the detenu was arrested and the subjective satisfaction of the Detaining Authority regarding the possibility of the detenu coming out on bail on the basis of the similar case relied upon by him, suffers from non-application of mind, which vitiates the detention order.
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 dealt with a situation where the Detention Order is passed without an application of mind. 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. In the instant case, the Detaining Authority has arrived at the subjective satisfaction that the detenu is likely to be released on bail by referring to a bail order granted to the
accused in a similar case, wherein, the said bail was granted on the ground that accused therein is entitled to statutory bail and not on merits. Therefore, the subjective satisfaction of the Detaining Authority that the detenu is likely to be released on bail suffers from non-application of mind. 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 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.
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.The learned counsel for the petitioner further submitted that there is a delay of three months in passing the order of detention. In the present case, though the detenu was arrested on 30.05.2023, the Detention Order was passed only on 31.08.2023.
7.The Hon'ble Supreme Court in the case of Sushantha Kumar Banik Vs. State of Tripura and Others reported in AIR 2022 SC 4715, has dealt with similar situation and has held in paragraph No.21 as follows:-
"In the present case, the circumstances indicate that the detaining authority after the receipt of the proposal from the sponsoring authority was indifferent in passing the order of detention with greater promptitude. The "live and proximate link" between the grounds of detention and the purpose of detention stood snapped in arresting the detenu. More importantly the delay has not been explained in any manner & though this point of delay was specifically raised & argued before the High Court as evident from Para 14 of the impugned judgment yet the High Court has not recorded any finding on the same." 8.
The Hon'ble Supreme Court was persuaded to allow the Appeal filed before it mainly on the ground that delay in passing the Order of Detention from the date of the proposal would snap the ''live and proximate link'' between prejudicial activities and the purpose of detention. Therefore, failure on the part of the Detaining Authority in explaining such delay as in the present case also is a valid ground for quashing the Detention Order. 9.
order is liable to be quashed.
10.Accordingly, the detention order passed by the 2nd respondent, in C.M.P.No.07/Drug Offender/C2/2023, dated 31.08.2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu namely Raja @ Anandharaj, aged 41 years, S/o.Selvakumar, 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.) 22.12.2023 mkn Internet : Yes Index : Yes / No To 1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009.
2.The District Magistrate and District Collector, Salem, Salem District.
3.The Superintendent of Police, Salem, Salem District.
4.The Superintendent of Prison, Central Prison, Salem.
5.The Inspector of Police, Prohibition Enforcement Wing, Mettur, Salem District.
6.The Public Prosecutor, High Court, Madras.
S.S. SUNDAR , J.
and SUNDER MOHAN, J.
mkn 22.12.2023