S.Santhi v. The State Of Tamil Nadu,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.10.2024 CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM AND THE HONOURABLE MR. JUSTICE V.SIVAGNANAM H.C.P. No.2366 of 2024 S.Santhi ... Petitioner Vs.
1.The State of Tamil Nadu, rep. by its Additional Chief Secretary to Government, Department of Prohibition and Excise (Home), Fort St. George, Chennai - 600 009.
2.The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600 007.
3.The Superintendent of Prison, Central Prison, Puzhal, Chennai.
4.The Inspector of Police, K-4, Anna Nagar Police Station, Chennai.
... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus calling for the records in No.862/BCDFGISSSV/2024 dated 21.08.2024 on the file of second respondent herein and set aside the same as illegal and produce the detenu Robert @ Chinna Robert, S/o.Edwin, aged about 28 years, who is 1/10
confined at Central Prison, Puzhal, Chennai, before this Court and set him at liberty.
For Petitioner : Mr.Ilayaraja Kandasamy For Respondents : Mr.E.Raj Thilak Additional Public Prosecutor
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM,J.) The petitioner herein is the Aunty of the detenu viz., Robert @ Chinna Robert, S/o.Edwin, aged 28 years, now confined at Central Prison, Puzhal, Chennai, has come forward with this petition challenging the detention order passed by the second respondent in No.862/BCDFGISSSV/2024 dated 21.08.2024.
2. Heard the learned counsel 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 for the petitioner pointed out that the Detaining Authority has not applied its mind while expressing its subjective satisfaction that the 2/10
detenu is also likely to be released on bail. The learned counsel for the petitioner would submit that the similar bail order is dissimilar on the ground that the Principal Sessions Court, Chennai considered the said case since there was no previous case reported against the petitioner in the similar bail order.
4. The impugned order of detention has been passed relying on the bail order passed in a similar case in Crl.M.P. No.13436 of 2021 dated 24.08.2021 by the Court of Principal Sessions at Chennai. However, in the case on hand, there are previous criminal cases and thus, the reliance made by the detaining authority would result in non-application 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 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. 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 3/10
liable to be quashed. It is relevant to extract paragraphs 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. 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 4/10
out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained."
6. The learned Additional Public Prosecutor placed reliance on a recent decision of the Hon'ble Full Bench of this Court in the case of 'N.Fathima @ Laila Vs. The State of Tamil Nadu' passed in H.C.P.(MD) No.1121 of 2022 and batch., and submitted that when the similar case relied upon in the grounds of detention by the authority for drawing inference that the detenu is likely to come out on bail, is not similar to the ground case for which he has been detained, the same will not be fatal to the detention order, as the said ground would be severable in terms of Section 5-A of the Tamil Nadu Act 14 of 1982.
7. However, in the recent decision in 'Jayalakshmi Vs. The State of Tamil Nadu' [HCP No.330 of 2024 dated 16.04.2024], we had observed that the observations made by the Hon'ble Full Bench in that regard, cannot be reconciled with the judgments of the Hon'ble Supreme Court. The relevant portions of the order read as follows:- "9. Firstly, that was not the question referred to the Hon'ble Full Bench for its consideration. The 5/10
observations in this regard, relating to Section 5-A of the Tamil Nadu Act 14 of 1982, in our view, are therefore not binding and cannot be treated as ratio decidendi. In the case of ADM Jabalpur Vs. Shivkant Shukla reported in (1976) 2 SCC 521, the Hon'ble Supreme Court had held that a decision on a point, not necessary for the purpose of, or which does not fall to be determined in that decision, becomes an obiter dictum. Hence, such a point in the decision, would not be an authority for a proposition which did not fall for its consideration, as held in the case of Zee Telefilms Ltd. And Another Vs. Union of India reported in (2005) 4 SCC 649.
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12. Therefore, even though in Ankit Ashok Jalan's case [cited supra], the observations in Rekha's case [cited supra] were distinguished on facts, the requirement to record the satisfaction that the detenu is likely to come out on bail, was reiterated. This requirement is mandated when detention orders are clamped on persons who are in custody. When such a satisfaction is a pre-requisite, to pass a detention order against a person in custody any infirmity in the satisfaction would certainly vitiate the detention order. Such being the legal position enunciated by the Hon'ble Supreme Court, the observations made by the Hon'ble Full Bench that a defect in the said satisfaction would not 6/10
vitiate the detention order, cannot be reconciled with the judgments of the Hon'ble Supreme Court.
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14. As stated earlier in order to pass a detention order against a person in custody, the detaining authority must be satisfied that a detenu is likely to be released on bail and on being released on bail, is likely to indulge in same prejudicial activities. When this satisfaction is sine qua non, any defect in such satisfaction would render the detention order illegal. Hence, the observations made by the Hon'ble Full Bench of this Court, regarding severability of the ground under Section 5-A of the Tamil Nadu Act 14 of 1982, cannot be reconciled with the aforesaid judgments of the Hon'ble Supreme Court, which are binding on us. However, the judgment of the Hon'ble Full Bench is certainly an authority for the proposition that non supply of materials relating to the similar case relied upon by the detaining authority, would not vitiate the detention order. 15. In the present case, there is a defect in the subjective satisfaction."
8. The aforesaid extracts are self explanatory. As such, the objections of the learned Additional Public Prosecutor in this regard, would not be sustainable.
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9. Accordingly, the detention order passed by the second respondent in No.862/BCDFGISSSV/2024 dated 21.08.2024, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Robert @ Chinna Robert, S/o.Edwin, aged 28 years, now confined at Central Prison, Puzhal, Chennai, is directed to be set at liberty forthwith unless he is required in connection with any other case. [S.M.S., J.] [V.S.G., J.] 14.10.2024 Index: Yes/No vga 8/10
To 1.The State of Tamil Nadu, rep. by its Additional Chief Secretary to Government, Department of Prohibition and Excise (Home), Fort St. George, Chennai - 600 009.
2.The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600 007.
3.The Superintendent of Prison, Central Prison, Puzhal, Chennai.
4.The Inspector of Police, K-4, Anna Nagar Police Station, Chennai.
5.The Public Prosecutor, Madras High Court.
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S.M.SUBRAMANIAM, J.
AND V.SIVAGNANAM, J.
vga H.C.P. No.2366 of 2024 14.10.2024 10/10