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Madras High CourtHCP(MD)/1439/2015allowed

Subbulakshmi v. The Secretary Of State ,

2016-01-07Honourable Mr Justice P.R.Shivakumar,Honourable Mr Justice V. S. Ravi4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.01.2016

CORAM:

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR AND THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P.(MD)No.1439 of 2015 Subbulakshmi ..Petitioner Vs.

State Rep. by:

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

2.The District Collector and District Magistrate, The District Collector's Office, Vallam Road, Thanjavur.

..Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus to call upon the production of the records relating to the detention order dated 14.08.2015 made in detention order P.D.No.45/2015 passed by the second respondent herein, quash the same and direct the respondents to produce the body or person of the petitioner's husband - Raja S/o.Ramaiyan, aged about 30 years branded as Goonda and now confined in Central Prison, Thiruchirapalli, before this Court and set him at liberty forthwith. For Petitioner : Mr.M.Karunakaran For Respondents : Mr.A.Ramar, Additional Public Prosecutor *********

ORDER

[Order of the Court was made by P.R.SHIVAKUMAR, J] The petitioner is the wife of the detenu viz., Raja S/o.Ramaiyan, aged about 30 years. The detenu has been detained by the second respondent by his order in P.D.No.45/2015, dated 14.08.2015, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No.188 of 2015 on the file of Thirukkattuppalli Police Station registered for alleged offences punishable under Sections 147, 148, 324 and 302 of the Indian Penal Code and the adverse case in Crime No.109 of 2007 on the file of Samayapuram Police Station registered for alleged offences punishable under Sections 147, 148 and 302 of the Indian Penal Code.

2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of the "Goonda" and that his presence at large would be prejudicial to the maintenance of public order and also expressing subjective satisfaction that it was very likely that

the detenu would come out on bail in the ground case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition.

3. Though the order of detention is assailed on several grounds, the learned counsel for the petitioner mainly relies on the contention that the bail applications filed in the ground case were dismissed and no further bail application was filed, but still the detaining authority expressed subjective satisfaction that there was a real possibility of the detenu coming out on bail in the ground case relying on the bail order passed in another case and that the same will be termed ipse dixit not supported by cogent materials.

4. In elaboration of the said contention, the learned counsel for the petitioner submits that the subjective satisfaction regarding the real possibility of the detenu coming out on bail in a case, wherein the bail applications filed by the detenu were dismissed and no bail application is pending, cannot be based on any other case in respect of other persons and that the very fact that no bail application is pending will negative the imminent possibility of the detenu coming out on bail, subject to an exception that a co-accused in the very same case placed under similar circumstances has been released on bail.

5. In support of his contention, the learned counsel for the petitioner relies on the Judgment of a Larger Bench of the Hon'ble Supreme Court consisting of three Hon'ble Judges in Rekha Vs. State of Tamil Nadu, reported in (2011) 5 SCC 244, followed by and clarified in Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181, which has also been followed by this Court in an unreported decision in H.C.P(MD).No.1567 of 2015 [Sri Devi Vs. Secretary to Government of Tamil Nadu, Home Prohibition and Excise Department and others], vide order dated 14.12.2015.

6. The submissions made by the learned Additional Public Prosecutor in reply to the above said contention raised by the learned counsel for the petitioner are also heard.

7. In Paragraph No.5 of the grounds of detention, the Detaining Authority, expressing his subjective satisfaction regarding the possibility of the detenu coming out on bail, made the following observation:

"5) Thirumathi.Subbulakshmi, Wife of the accused Thiru.Raja is taking action to take out her husband Thiru.Raja on bail by filing another bail application for Ground case registered in Thirukkattuppalli Police Station Crime Number.188/2015, Under sections 147, 148, 324 and 302 of Indian Penal Code before the appropriate Court. Moreover, in a Similar case registered in Thanjavur Medical College Police Station Crime Number.651/2013, Under sections 147, 148, 341, 506(ii) and 302 of Indian Penal Code read with 149 of Indian Penal Code, bail was granted to the accused Kurunthaiyan and Lakshmanan by the Honourable High Court of Madras, Madurai Bench in Crl.O.P.(MD)No.20102/2013 Dated 12.11.2013. Hence, there is a real possibility of his (Thiru.Raja) coming out on bail by filing bail petition for

the above said Ground case before the appropriate Court. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of Public Order."

8. The Detaining Authority referred to the fact that the bail applications filed in the ground case were dismissed by the learned Judicial Magistrate, Thiruvaiyaru, vide CR.M.P.No.5143 of 2015, on 31.07.2015 and by the Principal District and Sessions Court, Thanjavur, vide CR.M.P.Nos.2876, 2901 and 2918 of 2015, on 10.08.2015, 11.08.2015 and 12.08.2015 respectively and that thereafter, no bail application was filed in the ground case, namely, Crime No.188/2015 registered on the file of Thirukkattuppalli Police Station. However, the Detaining Authority proceeded further to express a subjective satisfaction that there was real possibility of the detenu coming out on bail by filing a bail application, since in a similar case, not being a case of a co-accused in the very same case, another person was granted bail by this Court in Crl.O.P.

(MD) No.20102 of 2013, on 12.11.2013. Such a comparison of bail order passed in another case, when no bail application is pending, to express subjective satisfaction of the real possibility of the detenu coming out on bail, is against the dictum laid down by a Larger Bench of the Supreme Court in Rekha Vs. State of Tamil Nadu, reported in (2011) 5 SCC 244, followed by a Division Bench of the Hon'ble Supreme Court in Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181 and by this Court in an unreported decision in H.C.P(MD).No.1567 of 2015 [Sri Devi Vs. Secretary to Government of Tamil Nadu, Home Prohibition and Excise Department and others], vide order dated 14.12.2015. Hence, as rightly contended by the learned counsel for the petitioner, the Order of Detention is vitiated on the said ground alone.

9. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 14.08.2015, made in P.D.No.45/2015, by the second respondent, the District Collector and District Magistrate, the District Collector's Office, Vallam Road, Thanjavur and directs the release of the detenu by name Raja S/o.Ramaiyan, aged about 30 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar(CS) Madurai Bench of Madras High Court, Madurai-23.

To 1.The Secretary, State of Tamil Nadu, Prohibition & Excise Department, St. George Fort, Chennai-600 009.

2.The District Collector and District Magistrate, The District Collector and District Magistrate Office, Vallam Road, Thanjavur.

3. The Superintendent, Central Prison, Trichirappalli.

(in duplicate for communicate to detenu)

4. The Joint Secretary to Government, Public (Law & Order) Department, Fort St.George, Chennai.

5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1cc to M/s.K.M.Karunakaran, Advocate in SR.1561 H.C.P.(MD)No.1439 of 2015 Dated: 07.01.2016 gcg PBK/PM-MP/SAR-II 11/01/2016 ::4P-8C::(IT)