Priyavisha v. The Secretary To The Government,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.12.2023 CORAM :

THE HONOURABLE MR. JUSTICE S.S. SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.1942/2023 Smt.Priyavisha ... Petitioner Vs.

1.The Secretary to the Government Government of Tamil Nadu [Home] Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009.

2.The Commissioner of Police Greater Chennai, Vepery, Chennai 600 007.

3.The Inspector of Police EDF-I, Central Crime Branch-I Chennai.

4.The Superintendent of Prison Special Prison for Women Puzhal, Chennai 600066.

... Respondents

Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus calling for the entire records connected with the order of the 2nd respondent herein in Memo No.362/BCDFGISSSV/2023 dated 17.08.2023 passed against the petitioner / detenue namely Priyavisha wife of Shahul Hameed aged 44 years, who is confined at Special Prison for Women, Puzhal, Chennai and set aside the same, consequently, directing the respondents herein in produce the body and person of the detenue before this Court and set her at liberty forthwith. For Petitioner : Mr.C.C.Chellappan For Respondents : Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.Aravind.C

ORDER

[Order of the Court was made by S.S.SUNDAR, J] (1)The petitioner, detenue herein, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 26.06.2023 slapped on her, branding her as "Goonda" under the 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)Though several points have been raised by the learned counsel for the petitioner, the detention order is liable to be quashed on the sole 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.

(4) In paragraph No.4 of the Grounds of Detention, the Detaining Authority has stated that there is a possibility of the detenu coming out on bail in the ground case since in a similar case, bail was granted to the detenu therein and relied upon an order passed by the Special Metropolitan Magistrate Court for CCB and CBCID Cases in Crl.MP.No.6800/2022. On a perusal of the said order in page No.299 of the Booklet, this Court finds that the said order relates to release of the accused on bail u/s.167[2] of Cr.P.C., since the accused therein had been in prison for more than 60 days and not on merits. Therefore, it is not a similar case and the subjective satisfaction of the Detaining Authority, regarding the

possibility of the detenu coming out on bail 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 an accused in a similar case in CrL.MP.No.6800/2022.

However, the said bail was granted on the ground that accused is entitled to statutory bail and not on merits and therefore, the subjective satisfaction of the Detaining Authority that the detenu is likely to be released on bail suffers from non-application of mind. Hence, on the above grounds, the Detention Order is liable to be quashed. (6)In view of the aforesaid reason, the detention order passed by the 2nd respondent dated 17.08.2023 in No.

set aside and the Habeas Corpus Petition is allowed. The detenue is directed to be set at liberty forthwith unless she is required in connection with any other case.

[SSSRJ] [SMJ] 21.12.2023 AP Internet : Yes To 1.The Secretary to the Government Government of Tamil Nadu [Home] Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 600 009.

2.The Commissioner of Police Greater Chennai, Vepery, Chennai 600 007.

3.The Inspector of Police EDF-I, Central Crime Branch-I Chennai.

4.The Superintendent of Prison Special Prison for Women Puzhal, Chennai 600066.

5.The Public Prosecutor, High Court, Madras.

S.S. SUNDAR, J., and SUNDER MOHAN, J., AP HCP. No.1942/2023 21.12.2023