Prabavathi v. The State Of Tamil Nadu Rep.By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 15.12.2023 CORAM :

THE HON'BLE MR. JUSTICE S.S.SUNDAR AND THE HON'BLE MR.JUSTICE SUNDER MOHAN Prabavathi W/o Gandhi ..

Petitioner v.

1. The State of Tamil Nadu represented by Secretary to Government Home, Prohibition & Excise Department Fort St.George, Chennai 600 009

2. The Commissioner of Police Avadi City, Avadi

3. The Superintendent Central Prison, Puzhal Chennai

4. The Inspector of Police M-4, Red Hills 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

relating to the detention order dated 26.07.2023 passed by the second respondent in his proceedings No.194/BCDFGISSSV/2023 and quash the same and direct the respondents herein to produce petitioner's son namely Jayarakesh son of Gandhi aged about 23 years, who is presently undergoing detention in the Central Prison, Puzhal as GOONDA before this Hon'ble Court and set him at liberty forthwith.

For Petitioner ::

Mr.M.Vinoth 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, who is the mother of the detenu, namely, Jayarakesh, aged 23 years, S/o Gandhi, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 26.07.2023 slapped on her son, 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 submitted that the detaining authority, without any material, has inferred that the detenu is likely to come out on bail in the ground case. He also pointed out that the special report of the sponsoring authority is not dated. Therefore, the learned counsel submitted that the subjective satisfaction of the detaining authority suffers from nonapplication of mind and the same vitiates the detention order.

4. This Court, on perusal of the records, finds that the special report of the sponsoring authority did not contain the date. Similarly, except stating that the detenu has filed an application for bail and the same is pending, this Court is unable to find any material justifying the opinion of the detaining authority while passing the detention order against the detenu. In such circumstances, the subjective satisfaction of the detaining authority that the detenu is likely to come out on bail, suffers from total non-

application of mind and is a mere ipse dixit, as held by 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, wherein it has been held as follows:- "7. A perusal of the above statement in Para-4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. In our opinion, this itself is sufficient to vitiate the detention order."

27.In our opinion, there is a real possibility of

release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.'' In view of the law enunciated by the Hon'ble Supreme Court in Rekha's case, this Court is convinced that the impugned detention order is liable to be quashed.

5. Accordingly, the detention order passed by the 2nd respondent dated 26.07.2023 in No.194/BCDFGISSSV/2023 is hereby set aside and the

habeas corpus petition is allowed. The detenu viz., Jayarakesh, S/o Gandhi, aged 23 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.) 15.12.2023 ss To

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

2. The Commissioner of Police Avadi City, Avadi, Chennai

3. The Superintendent Central Prison, Puzhal Chennai

4. The Inspector of Police M-4, Red Hills Police Station Chennai

5. The Public Prosecutor High Court, Madras

S.S.SUNDAR,J.

AND SUNDER MOHAN,J.

ss 15.12.2023