Punitha v. The Secretary To The Government,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.02.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.2278 of 2023 Punitha ... Petitioner/Mother of the detenu Vs.

1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009.

2. The Commissioner of Police, Greater Chennai.

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

4. The Inspector of Police, N4 Fishing Harbour Police Station, Chennai City.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the records in connection with the order of detention passed by the second respondent dated 19.10.2023 in No.496/BCDFGISSSV/2023 against the petitioner son Santhosh, Male aged

30 years, S/o. Mahendran who is confined at Central Prison, Puzhal, and set aside the same and direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty.

For Petitioner : Mr.D. Balaji For Respondents : Mr.E.Raj Thilak, Additional Public Prosecutor assisted by Mr.C. Aravind

ORDER

M.S.RAMESH, J.

and SUNDER MOHAN, J.

The petitioner herein, who is the mother of the detenu Santhosh, aged 30 years, S/o. Mahendran, has come forward with this petition challenging the detention order passed by the second respondent dated 19.10.2023 slapped on her son, branding him as "Goonda" as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982.

2. Heard the learned counsel for the petitioner, as well as the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in this petition, the learned counsel for the petitioner focused 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 Cr.P.C., said to have been made by the petitioner before the Sponsoring Authority and the Special Report of the Sponsoring Authority are not dated. Hence, the learned counsel for the petitioner raised a bona fide doubt as to when this statement was obtained from the petitioner and as to the date on which the Special Report wast sent by the Sponsoring Authority to the Detaining Authority. The learned counsel pointed out that, unless the statement relied upon by the Sponsoring Authority and the Special Report of the Sponsoring Authority are immediately before the Detention Order, it may not have relevance and hence, the subjective satisfaction of the Detaining Authority based on these undated materials, 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.3, the Detaining Authority has stated 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 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 mother of the detenu stating that she is planning to file bail application to bring out the detenu on bail, is not dated and even the Special Report of the Sponsoring Authority is not dated, the veracity of the Report becomes doubtful. The compelling necessity to detain the detenu would also depend on when the Sponsoring Authority has sent his Report. In the absence of the report, the compelling necessity to detain, becomes suspect. Hence, this Court is of the view that the subjective satisfaction arrived at by the Detaining Authority based on such undated materials, 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 paragraph Nos.10 and 11 of the said judgment of the Hon'ble Supreme Court:- "10.

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 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 second respondent on 19.10.2023 in No.496/BCDFGISSSV/2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Santhosh, aged 30 years, S/o.Mahendran, is directed to be set at liberty forthwith, unless he is required in connection with any other case.

[M.S.R., J] [S.M., J] 23.02.2024 Index: Yes/No bga To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009.

2. The Commissioner of Police, Greater Chennai.

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

4. The Inspector of Police, N4 Fishing Harbour Police Station, Chennai City.

5.The Public Prosecutor, High Court, Madras.

6. The Joint Secretary, Law and Order Department, Secretariat, Chennai.

M.S.RAMESH, J.

and SUNDER MOHAN, J.

bga H.C.P.No.2278 of 2023 23.02.2024