Gayathri v. State Of Tamil Nadu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31.10.2019
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN AND THE HON'BLE MR.JUSTICE N.ANAND VENKATESH Gayathri
...Petitioner
Vs.
1.State of Tamil Nadu rep. by its Secretary to Government Govt. of Tamilnadu, Home, Prohibition and Excise Department, Chennai-9.
2.The District Magistrate and District Collector, Dindigul District, Dindigul.
3.The Superintendent, Central Prison,Madurai.
...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, to call for the records pertaining to the proceedings of the 2nd respondent made in his proceedings in Detention Order No.22/2019 dated 07.05.2019 and quash the same and set the petitioner husband by name Sakthivel, S/o.Koppan, aged about 25 years at liberty from 3rd respondent.
For Petitioner :Mr.M.Jegadheesapandian For Respondents : Mr.K.Dinesh Babu Addl. Public Prosecutor
O R D E R
S.VAIDYANATHAN, J.
AND N.ANAND VENKATESH, J.
The present Habeas Corpus Petition is directed against the Detention Order passed by second respondent in Detention Order No.22/2019 dated 07.05.2019.
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2.The Sponsoring Authority had recommended for the detention of the Petitioner under Act 14 of 1982 on a solitary case registered against the Petitioner and the Petitioner was thereafter arrested in the said case. The Detaining Authority has branded the detenu as a ''Goonda'' and has passed the Detention order, dated 07.05.2019. 3.The learned counsel for the Petitioner submitted that the Detention Order was passed based on a solitary case that has been registered against the detenu in Crime No.104 of 2019, for the offence under Section 302 IPC and 3 and 4(a) of Indian Explosives Substances Act, 1908 altered into 147, 148, 114, 302 IPC and 3 and 4 (a) of Indian Explosives Substances Act.
The learned counsel submitted that the Detaining Authority having stated that the bail petition filed by the detenu has been dismissed by the Sessions Court and that there is likelihood of the detenue to file a bail application, proceeded to arrive at the subjective satisfaction only on the ground that similarly placed accused person has been granted bail by the Sessions Court. The learned counsel further submitted that the subjective satisfaction has been arrived at without any materials and therefore, the Detention Order is vitiated. 4.In support of his contention, the learned counsel for the Petitioner relied upon the case of Rekha .vs.
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 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 6case, 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 2/5
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 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 3/5
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.We have carefully gone through the Detention Order. It is seen that the Detaining Authority has discussed about the case that has been registered against the detenu. The Detaining Authority has specifically stated that the earlier bail application filed by the detenue came to be dismissed by the Sessions Court and that no bail petition has been filed by the detenu on the date of passing the order of detention. However, he has arrived at the subjective satisfaction only on the ground that similarly placed accused person was granted the relief of bail by the Sessions Court. The bail order that has been relied upon by the Detaining Authority pertains to the year 2010 and it is seen that the bail order confines itself to the facts of that particular case.
Therefore, the subjective satisfaction arrived at by the Detaining Authority is not supported by any materials and it clearly reflects the non-application of mind. Consequently, the Detention Order stands vitiated. 7.In the result, the Habeas Corpus Petition is allowed and the order of detention in Detention Order No.
second respondent is set aside. The detenu, namely, Sakthivel, son of Koppan, aged about 25 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) RR To 1.The Secretary to Government State of Tamil Nadu Home, Prohibition and Excise Department, Fort St.George, Chennai-9.
2.The District Magistrate and District Collector, Dindigul District, Dindigul.
3.The Superintendent, Central Prison,Madurai.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
5. The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai-9.
ORDER MADE IN 31.10.2019 VB(19.11.2019) 5P 6C 5/5