A.Abitha v. State Of Tamil Nadu Rep.By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 12.03.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.2461 of 2023 A.Abitha ... Petitioner Vs.

1.State of Tamil Nadu, Rep. by its Secretary, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.

2.The Commissioner of Police, Greater Chennai, Office of the Commissioner of Police (Goondas Section), Vepery, Chennai - 600 007.

3.The Superintendent of Prison, Central Prison, Puzhal, Chennai - 600 006.

4.The Inspector of Police, S-7, Madipakkam Police Station, Chennai District.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the records relating to the detention order vide BCDFGISSSV No.545/2023 dated 06.11.2023 passed

by the second respondent and quash the same direct the respondents herein to produce the petitioner's husband namely Arun @ Otharupai Arun, aged about 23 years, S/o.Pichandi, who is presently undergoing detention in the Central Prison, Puzhal, before this Court and set him at liberty. For Petitioner : Mr.N.Arun Kumar 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 wife of the detenu namely Arun @ Otharupai Arun, aged about 23 years, S/o. Pichandi, has come forward with this petition challenging the detention order passed by the second respondent dated 06.11.2023 slapped on her husband, 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, as well as the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in the petition, the learned counsel for the petitioner pointed out that the Detaining Authority has not applied its mind while expressing its subjective satisfaction that the detenu is also likely to be released on bail. It is his submission that the case relied upon by the Detaining Authority is not similar to the present case, as the bail was granted in favour of the accused therein by recording the fact that there is only one previous case as against the accused therein.

4. On a perusal of the Booklet, this Court finds that the bail order relied upon by the Detaining Authority in Crl.M.P.No.2054 of 2023, is not similar to the case on hand, since the accused therein was granted bail after recording the fact that one previous case was reported against the accused therein. However, it is admitted that there are 3 adverse cases as against the detenu herein. Considering the nature of the bail order in the similar case relied upon by the Detaining Authority and the case on hand, this Court

finds that the subjective satisfaction of the Detaining Authority that the detenu is also likely to be released on bail, 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', had 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.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 co-accused 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 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. Hence, for the aforesaid reasons, the detention order passed by the second respondent on 06.11.2023 in BCDFGISSSV No.545/2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Arun @ Otharupai Arun, aged about 23 years, S/o. Pichandi, 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] 12.03.2024 Index: Yes/No Speaking/Non-speaking order Internet:Yes/No Sni

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

2.The Commissioner of Police, Greater Chennai, Office of the Commissioner of Police (Goondas Section), Vepery, Chennai - 600 007.

3.The Superintendent of Prison, Central Prison, Puzhal, Chennai - 600 006.

4.The Inspector of Police, S-7, Madipakkam Police Station, Chennai District.

5.The Public Prosecutor, High Court, Madras.

M.S.RAMESH, J.

and SUNDER MOHAN , J.

Sni H.C.P.No.2461 of 2023 12.03.2024