Sandhya v. Government Of Tamilnadu, Rep.By Its

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.12.2023 CORAM :

THE HONOURABLE MR. JUSTICE S.S. SUNDAR AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN Sandhya ... Petitioner Vs.

1.Government of Tamil Nadu Rep. by its the Secretary, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The Commissioner of Police, Greater Chennai.

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

4.The Inspector of Police, S-8, Adambakkam Police Station, Chennai 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 in Detention Order Passed in Memo BCDFGISSSV No.244/2023, dated 21.06.2023, on the file of the 2nd Respondent herein and quash the same and direct the respondents herein to produce the body of Petitioner's husband Thiru.Sakthivel, M/A 45 Years, S/o.Santhakumar, now confined in Central Prison, Puzhal, Chennai before this Court and set him at liberty. For Petitioner :

Mr.D.Padmanabhan 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 Sakthivel, aged 45 years, S/o.Santhakumar, has come forward with this petition challenging the detention order passed by the 2nd respondent dated 21.06.2023 slapped on her husband, branding him as "Goonda" 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.Though several grounds are raised in this petition, the learned counsel for the petitioner focussed mainly on the ground that the subjective satisfaction of the Detaining Authority that the relatives of the detenu are taking steps to take out the detenu on bail, suffers from non-application of mind, as the statement under 161(iii) Cr.P.C. said to have been made by the petitioner before the Sponsoring Authority is not dated. Hence, the learned counsel for the petitioner raised a bona fide doubt as to when this statement was obtained from the petitioner.

The learned counsel further pointed out that, unless the statement relied upon by the Sponsoring Authority is immediately before the Detention Order, it may not have relevance and hence, the subjective satisfaction of the Detaining Authority based on this undated statement, would vitiate the Detention Order.

4.It is seen from records that the statement obtained by the Sponsoring Authority from the petitioner, enclosed in the Booklet, stating that she is planning to file bail application to bring out the detenu on bail, is not dated. On a perusal of the Grounds of Detention, it is seen that, in Para No.4, the Detaining Authority has observed that the Sponsoring Authority has stated that he came to understand that the relatives of the detenu are taking steps to take him out on bail in the ground case by filing bail applications before the appropriate Court, and has arrived at the subjective satisfaction that the detenu is likely to be released on bail.

When the statement obtained by the Sponsoring Authority from the relative of the detenu stating that she is planning to file bail application to bring out the detenu on bail is not dated, the veracity of such statement becomes doubtful. The compelling necessity to detain the detenu would also depend on when the statement was obtained. In the absence of the date, the compelling necessity to detain, becomes suspect. Hence, this Court is of the view that the subjective satisfaction of the Detaining Authority based on such undated material, suffers from 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 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.

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 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.Accordingly, the detention order passed by the 2nd respondent in

BCDFGISSSV No.244/2023, dated 21.06.2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Sakthivel, aged 45 years, S/o.Santhakumar, 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.) 18.12.2023 mkn Internet : Yes Index : Yes / No To 1.The Secretary, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The Commissioner of Police, Greater Chennai.

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

4.The Inspector of Police, S-8, Adambakkam Police Station, Chennai District.

5.The Public Prosecutor,

High Court, Madras.

S.S. SUNDAR , J.

and SUNDER MOHAN, J.

mkn 18.12.2023