P.Sabari @ Sabarinathan v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.12.2023

CORAM

THE HONOURABLE MR. JUSTICE S.S. SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN P.Sabari @ Sabarinathan ...

Petitioner Vs.

1.State of Tamil Nadu rep. By The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.

2.The Commissioner of Police, Tambaram City, Office of the Commissioner of Police, Sholinganallur, Chennai - 119.

3.The Superintendent of Prison, Central Prison, Puzhal, Chennai - 66.

4.The Inspector of Police, T-9 Maraimalai Nagar Police Station, Chengalpattu District.

... Respondents 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 in Memo No.30/BCDFGISSSV/2023 dated 14.07.2023 passed by the second respondent under the Tamil Nadu Act 14 of 1982 and set aside the same and direct the respondents to produce the detenu P.Sabari @ Sabarinathan, S/o.Pushparajan, aged about 23 years, the detenu,

now confined in Central Prison, Puzhal, Chennai, before this Court and set him at liberty.

For Petitioner :

Mr.P.Vishnu Prasad For Respondents :

Mr.E.Raj Thilak Additional Public Prosecutor assisted by Mr.C.Aravind

ORDER

(Order of the Court was made by S.S.SUNDAR, J.) The petitioner/detenu P.Sabari @ Sabarinathan, has come forward with this petition challenging the detention order passed by the second respondent dated 14.07.2023 slapped on him, 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 for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds have been raised in the petition,

the learned counsel for the petitioner submitted that similar case relied upon by the detaining authority is not similar. It is pointed out by the learned counsel for the petitioner that bail was granted to the accused in the similar case recording the following facts: (i) co-accused was granted bail vide order dated 28.04.2023 in Crl.M.P.No.2109 of 2023;

(ii) the detention of the petitioner therein under Act 14 of 1982 was revoked by the Advisory Board; and (iii) the petitioner therein is in judicial custody for more than 86 days.

4. In paragraph 4 of the grounds of detention, the detaining authority has stated that there is a real possibility of the detenu coming out on bail in the ground case, since, in a similar case, bail was granted to the accused therein, by relying upon an order passed by the Vacation Sessions Judge, Kancheepuram District at Chengalpattu, in Crl.M.P.No.2497 of 2023, dated 10.03.2023. On a perusal of page Nos.443 to 447 of the Booklet, this Court finds that bail was granted in the said case after recording that the coaccused was granted bail vide order dated 28.04.2023 in Crl.M.P.No.2109 of 2023, the detention of the petitioner therein

under Act 14 of 1982 was revoked by the Advisory Board and the petitioner therein is in judicial custody for more than 86 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 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.M.P.No.2497 of 2023, dated 10.03.2023. However, bail was granted in the said case on the grounds that co-accused was granted bail vide order dated 28.04.2023 in Crl.M.P.No.2109 of 2023, the detention of the petitioner therein under Act 14 of 1982 was revoked by the Advisory Board and the petitioner therein is in judicial custody for

more than 86 days 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. 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 coaccused 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 coaccused 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 out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.''

6.In view of the ratio laid down by the Hon'ble Supreme Court and in view of the aforesaid facts, this Court is of the view that the detention order is liable to be quashed.

7. In view of the aforesaid reason, the detention order passed by the second respondent dated 14.07.2023 in BCDFGISSSV No.30/2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., P.Sabari @ Sabarinathan, S/o.Pushparaj, aged about 23 years, 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.) 13.12.2023 Index : Yes / No mmi

To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai - 9.

2.The Commissioner of Police, Tambaram City, Office of the Commissioner of Police, Sholinganallur, Chennai - 119.

3.The Superintendent of Prison, Central Prison, Puzhal, Chennai - 66.

4.The Inspector of Police, T-9 Maraimalai Nagar Police Station, Chengalpattu District.

5.The Public Prosecutor, High Court, Madras.

S.S. SUNDAR , J.

and SUNDER MOHAN, J.

mmi 13.12.2023