Vgneswaran, v. The Principal Secretary To
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.11.2019
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN AND THE HON'BLE MR.JUSTICE N.ANAND VENKATESH Vigneswaran @ Ajith
...Petitioner
Vs.
1.The Principal Secretary to Government, State of Tamil Nadu Home, Prohibition and Excise Department, Fort St. George, Chennai-9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Virudhunagar District.
3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
...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 entire records connected with the detention order of the respondent No.2 in Cr.M.P. No.02/Goonda/2019 dated 29.05.2019 and quash the same and direct the respondents to produce the body or person of the detenu by name Vigneswaran @ Ajith, son of Vetrivel @ Udaiyappan, aged about 22 years, now detained at Madurai Central Prison, 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
S.VAIDYANATHAN, J.
AND N.ANAND VENKATESH, J.
The present Habeas Corpus Petition is directed against the 1/5
Detention Order passed by second respondent in Detention Order in Cr.M.P.No.02/Goonda/2019 dated 29.05.2019.
2.As per the grounds of detention, dated 29.05.2019, the detenu came under adverse notice in four adverse cases and in the ground case, which was registered in Crime No.88/2019 on the file of the Aruppukottai Taluk Police Station, who is the sponsoring authority, for offence under Sections 341 and 397 IPC. 3.The learned counsel for the Petitioner submitted that the Detention Order was passed based on the ground case that has been registered against the detenu in Crime No.88 of 2019, for the offence under Sections 341 and 397 IPC. The learned counsel submitted that the Detaining Authority having stated that no bail Petition has been filed by the detenu, 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. 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 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, 2/5
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 state that no bail petition has been filed by the detenu in the ground case. 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 2017 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 Cr.M.P.No.02/Goonda/2019 dated 29.05.2019 passed by the second respondent is set aside. The 4/5
detenu, namely, Vigneswaran @ Ajith, son of Vetrivel @ Udaiyappan, aged about 22 years, is directed to be released forthwith, unless his detention is not required in connection with any other case.
Sd/- Assistant Registrar (W) // True Copy // Sub Assistant Registrar(CS) RR To 1.The Principal Secretary to Government, State of Tamil Nadu Home, Prohibition and Excise Department, Fort St. George, Chennai-9.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Virudhunagar District.
3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
ORDER MADE IN 21.11.2019 KM/(11.12.2019) 5P 5C 5/5