Manikandan @ Mani, v. The Principal Secretary To
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.09.2019
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN AND THE HON'BLE MR.JUSTICE N.ANAND VENKATESH Manikandan @ Mani Son of Nambi Thevar now, confined at The Central Prison, Palayamkkottai, Tirunelveli District.
...Petitioner
Vs.
1.The State of Tamil Nadu, represented by the Principal Secretary to Government, Home, Prohibition and Excise Department, Chennai - 600 009.
2.The District Collector and District Magistrate, Thoothukudi District, Thoothukudi.
3.The Superintendent of Prison, Central Prison, Palayamkkottai, Tirunelveli.
...Respondents
PRAYER: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Habeas Corpus, calling for the entire records connected with the detention order passed in H.S(M) Confdl No.08/19, dated 4.2.2019 on the file of the second respondent herein and to quash the same and to direct the respondents to produce the detenu or body of the detenu namely Manikandan @ Mani,aged about 38 years, Son of Nambi Thevar, now detained at Central Prison, Palayamkkottai, before this Court and set him at liberty forthwith. For Petitioner :Mr.N.Pragalathan For Respondents : Mr.K.Dinesh Babu Addl. Public Prosecutor 1/6
O R D E R
The present Habeas Corpus Petition is directed against the Detention Order passed by second respondent in H.S(M) Confdl No.08/19, dated 4.2.2019.
2.The Sponsoring Authority had recommended for the detention of the Petitioner under Act 14 of 1982 on the ground that there are three adverse cases against the Petitioner and the Petitioner was thereafter arrested in the ground case and that he is a habitual offender. The Detaining Authority has branded the detenu as a ''Goonda'' and has passed the Detention order, dated 4.2.2019. Even though various grounds has been raised in the Petition challenging the Detention Order, the learned counsel for the Petitioner focussed his arguments only on the ground that the Detaining Authority was aware of the fact that the Petitioner/Detenu was arrested in two adverse cases and in the ground case.
However, while coming to the subjective satisfaction, the Detaining Authority has spoken about the arrest in only one of the adverse case in which the detenu was granted bail and there was no reference to the other adverse case where the Petitioner continued to be in judicial custody. That apart, the Petitioner had already filed the bail petition before the concerned Court in the ground case and the same was dismissed on 23.1.2019. The Detaining Authority after taking note of this dismissal order, has come to a subjective satisfaction on the ground that there is a possibility of the Petitioner filing a fresh bail petition in future and that in similar cases, the accused persons are being granted bail by the Sessions Court.
3.The learned counsel submitted that the subjective satisfaction was arrived at by the Detaining Authority without any supporting materials and therefore, the Detention Order suffers from non-application of mind.
4.The learned counsel for the Petitioner in order to substantiate his submissions relied upon the case of Rekha .vs. State of Tamil Nadu, through Secretary to Government and another reported in (2011) 5 SCC 244, wherein, it has been held as follows:
12. In Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr., (2011) 5 SCC 244, this Court while dealing with the issue held :
"7.A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the 2/6
date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused...... 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....... A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
27.In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground." (Emphasis added) Thus, it is evident from the aforesaid judgment that it is not the similar case, i.e. involving similar offence. It should be that the co-accused in the same 3/6
offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail.
13. So far as the appellant's son is concerned, he had been arrested for the offence related to FIR No.53 (6) 2011 under Section 302 IPC read with Section 25(1-A) Arms Act dated 14.6.2011. The FIR had been lodged against unknown persons, however, appellant's son was arrested on 19.6.2011 in respect of the said offence. Subsequently, the detention order dated 30.6.2011 was passed by the District Magistrate under N.S. Act on various grounds, inter-alia, that the appellant's son was involved in extorting of money and giving shelter to underground members of unlawful association, namely, Kangleipak Communist Party vide notification published in the Gazette of India on 13.11.2009 as his activities were pre-judicial to the security of the State and maintenance of public order. 14.In support of the detention order, a large number of documents had been relied upon and supplied to the appellant's son including the copy of FIR No.254
(12) 2010 under Section 17/20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter called UA (P) Act) and copy of FIR No. 210 (5) 2011 under Section 20 of the UA (P) Act and released orders in those cases dated 13.12.2010 and 1.6.2011 respectively had been passed.
15. In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co- accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law.
5.Heard the learned Additional Public Prosecutor appearing on behalf of the respondents.
6.The main ground that has been raised by the learned counsel for the Petitioner touches upon paragraph 7 of the 4/6
Detention Order. The Detaining Authority was aware of the fact that the detenu was arrested in two adverse cases and remanded to judicial custody. However, a reference is made to only one case where the detenu was granted bail and the Detaining Authority has not made any reference to the other adverse case in which the Petitioner was suffering incarceration.
7.That apart, the bail petition that was filed by the detenu in the ground case, was dismissed on 28.1.2019. There was no bail petition pending on the date on which the Detention Order was passed. The Detaining Authority has come to the subjective satisfaction regarding the imminent possibility of the Petitioner coming out on bail only on the ground that there is a chance of the Petitioner filing a bail Petition in future and that in similar cases, the accused persons are being granted bail by Sessions Court.This finding has been arrived at without any materials and therefore, the Detention Order suffers from nonapplication of mind. The judgment relied upon by the learned counsel for the Petitioner directly applies to the facts of the present case.
8.In the result, the Habeas Corpus Petition is allowed and the order of detention in H.S(M)Confdl No.08/19, dated 4.2.2019, passed by the second respondent is set aside. The detenu, namely, Manikandan @ Mani, son of Nambi Thevar, aged about 38 years, is directed to be released forthwith unless his detention is not required in connection with any other case.
Sd/- Assistant Registrar (CO) // True Copy // Sub Assistant Registrar(CS) vsn To 1.The Principal Secretary to Government, Home, Prohibition and Excise Department, Chennai - 600 009.
2.The District Collector and District Magistrate, Thoothukudi District, Thoothukudi.
5/6
3.The Superintendent of Prison, Central Prison, Palayamkkottai, Tirunelveli.
4.The joint Secretary to Government Public(Law and order) Chennai 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
ORDER MADE IN 04.09.2019 KM/(25.09.2019) 6P 6C 6/6