Natrayan, (Detenue) v. The Principal Secretary To

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.12.2019

CORAM:

THE HONOURABLE MR.JUSTICE T.RAJA AND THE HONOURABLE MR.JUSTICE B.PUGALENDHI Natrayan : Petitioner Vs 1.The Principal Secretary to Government State of Tamil Nadu, Home, Prohibition and Excise Department Fort St. George, Chennai-09.

2.The District Magistrate & District Collector, Office of the District Magistrate & District Collector Dindigul District.

3.The Superintendent of Prison, Madurai Central Prison Madurai District.

: Respondents Prayer : Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the entire records connected with the detention order of the 2nd respondent in Detention Order No.29/2019, dated 03.06.2019 and quash the same and direct the respondents to produce the body or person of the detenu by name Natrayan, son of Arumugam, aged about 35 years, (now detained at Central Prison, Madurai) before this Court and set him at liberty forthwith.

For Petitioner : Mr.R.Alagumani For Respondents : Mr.K.Dinesh Babu Addl.Public Prosecutor

O R D E R

[Order of the Court was made by T.RAJA, J.] Natrayan, son of Arumugam, aged about 35 years, (now detained at Central Prison, Madurai) has come to this Court, assailing the correctness of the impugned order of detention, dated 03.06.2019 passed by the second respondent/District Magistrate & District Collector, Dindigul District, detaining him at the Central 1/7

Prison, Madurai and to produce him before this Court and set him free forthwith.

2.The Sponsoring Authority had recommended for the detention of the detenu under Act 14 of 1982 on a solitary case that has been registered against the detenu in Crime No.227 of 2019, for the offence under Sections 147, 148, 302 and 506(II) IPC and the detenu was thereafter arrested in the said case. The Detaining Authority has branded the detenu as a ''Goonda'' and has passed the Detention order, dated 03.06.2019.

3.Learned counsel appearing for the Petitioner, assailing the correctness of the impugned order, stated that the second respondent herein, without proper application of mind, has erroneously passed the impugned order of detention citing a reason that when the accused was arrested on 24.04.2019, immediately thereafter, he moved bail applications twice, one on 07.05.2019 before the learned Judicial Magistrate No.2, Dindigul in Crl.M.P.No.4858 of 2019, it was rejected on the same day. Again, on yet another day, 2nd application was moved before the learned Principal District and Sessions Judge, Dindigul in Crl.M.P.No.73/2019 and the same was also dismissed on 28.05.2019 and thereafter, the petitioner has not moved any bail application either before the Judicial Magistrate or before the Sessions Court or before this Court.

However, the detaining authority has erroneously proceeded that in Crime No.151/2010 registered on the file of the Dindigul Town West Police Station, this Court has granted bail to one of the accused, viz., Murugesan in Crl.O.P.(MD) No.5699/2010 dated 13.05.2010 and inferring that there is a real possibility of the detenu coming out on bail passed the order of detention, which reflects the total non application of mind. 4.Arguing further, the learned counsel appearing for the petitioner submitted that after the dismissal of the bail applications, the detenu has not moved any bail applications and moreover, the co-accused has not even enlarged on bail by any Court. Taking support from the order passed by this Court in Crl.O.P.(MD) No.

5699/2010, the learned counsel submitted that granting bail in favour of the said accused is no way connected to the case of the present detenu and therefore, the reference that has been made by the second respondent in the impugned order cannot be a ground for passing the impugned order of detention. He would further submit that on the date of passing of the detention order, the detenu has not moved any bail application. Therefore, the need and necessity for the second respondent to pass the impugned order is totally far from acceptance and the mere ipse dixit statements made in the ground of detention cannot be sustained in the eye of law and on the sole ground, the Detention Order is vitiated. 5.

Petitioner 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 by this Court 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 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 coaccused 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 coaccused 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 3/7

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 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 4/7

statement in the grounds of detention and cannot be sustained in the eyes of law.

6.Heard the learned Additional Public Prosecutor appearing on behalf of the respondents.

7.The learned Additional Public Prosecutor, replying to the several contentions raised before this Court to strike down the impugned order of detention, submitted that after the proper investigation, the case was altered to under Sections 147, 148, 302 and 506(II) IPC. Moreover, when there is no violation of the settled provisions of law formulated by the Hon'ble Supreme Court in the case of D.K.Basu v. State of West Bengal, the version of the detenu cannot be accepted to interfere with the impugned order. 8.

In the counter affidavit filed, the detaining authority, after perusing all the records furnished by the sponsoring authority, has come to the subjective satisfaction that there was a compelling necessity to detain the detenu in order to prevent him from indulging in such further activities in future and moreover the detaining authority, referring to the order granting bail to one Mr.Murugesan in Crl.O.P.(MD) No.5699/2010 dated 13.05.2010, asserted that since in a similar case, this Court has granted bail, there is every possibility for the detenu to come out on bail. However, the said case is nothing to do with the facts of the present case. 9.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.

However, this Court finds it difficult to accept the reasonings given by the second respondent to pass the impugned order of detention against the detenu, inasmuch as the said bail order does not relate to the co-accused in the same case. Besides, the Detaining Authority has specifically stated that no bail petition has been filed by the detenu on the date of passing of the detention order, even though his earlier bail applications were dismissed by the Court below on 07.05.2019 and 28.05.2019 respectively. Further, the case, which was referred to by the detaining authority with regard to Mr.Murugesan had no connection with the facts of the present case.

10.Therefore, in the light of the above, as rightly held by the Hon'ble Apex Court in Huidrom Konungjao Singh v. State of Manipur and others, reported in (2012) 7 SCC 181, merely because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case, the detenu having applied for bail, would be obtaining bail.

11.More over, when a similar H.C.P was moved by a coaccused in H.C.P.(MD).No.485/2019, dated 02.12.2019, this Court having observed that the subjective satisfaction arrived at by the 5/7

Detaining Authority, have not been supported by any material evidence, quashed the detention order passed by the same Detaining authority. Hence, we do not find any impediment to follow the previous order. Therefore, the impugned order is liable to be set aside.

12.In view of the above, we find it difficult to accept the reasonings given by the second respondent to pass the impugned order of detention. Therefore, the subjective satisfaction arrived at by the Detaining Authority, having not been supported by any material evidence, clearly reflects non application of mind and hence, the Detention Order stands vitiated.

13.In view of the above reasons mentioned, this petition is allowed and impugned detention order passed by the 2nd respondent in No.29/2019, dated 03.06.2019 is set aside and the detenu Natrayan, son of Arumugam, aged about 35 years, now detained at Central Prison, Madurai is set at liberty. The Superintendent of Central Prison, Madurai Central Prison/third respondent is directed to release him forthwith, unless his presence is required in connection with any other case.

Sd/- Assistant Registrar (CO) // True Copy // / /2020 Sub Assistant Registrar(CS) vs To 1.The Secretary to Government State of Tamil Nadu, Home, Prohibition & Excise Department, Fort St. George, Chennai-09.

2.The District Magistrate & District Collector, Pudukkottai District, Pudukkottai.

3.The Superintendent of Prison, Central Prison Trichy.

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4.The Joint Secretary to Government, Public (Law and Order), Fort St. George, Chennai - 9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

05.12.2019 JMN(28.01.2020) 7P : 6C 7/7