Jayashree v. The Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 12.02.2024 CORAM :

THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN H.C.P.No.30 of 2024 Jayashree ... Petitioner Vs.

1.The Secretary, Home, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai - 9.

2.The Commissioner of Police, Chennai, Chennai District.

3.The Superintendent of Central Prison, Puzhal, Chennai - 600 066.

4.The Inspector of Police, CCB-I, Vepery, Chennai.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the records of the 2nd respondent in Memo No.179/BCDFGISSSV/2023 dated 17.05.2023 and quash the same and direct the 2nd respondent to produce the detenu

Mahadev Prasath, S/o.Uma Shankar, aged about 46 years, now confined in Central Prison, Puzhal, before this Court and set him at liberty. For Petitioner : Mr.D.P.Vishal 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 Mahadev Prasath, aged 46 years, S/o.Uma Shankar, has come forward with this petition challenging the detention order passed by the second respondent dated 17.05.2023, 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 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 nonapplication of mind, as the statement under 161 Cr.P.C., said to have been made by the petitioner's relative 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's relative. 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's relative, enclosed in the Booklet, stating that he is planning to file a 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 by filing bail application 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 he 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 nonapplication 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.

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.

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 17.05.2023 in No.179/BCDFGISSSV/2023, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Mahadev Prasath, aged 46 years, S/o.Uma Shankar, 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] 12.02.2024 Index: Yes/No Sni To 1.The Secretary, Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai - 9.

2.The Commissioner of Police, Chennai, Chennai District.

3.The Superintendent of Central Prison, Puzhal, Chennai - 600 066.

4.The Inspector of Police, CCB-I, Vepery, Chennai.

5.The Public Prosecutor, High Court, Madras.

M.S.RAMESH, J.

and SUNDER MOHAN, J.

Sni H.C.P.No.30 of 2024 12.02.2024