K. Lakshmi v. The Additional Chief Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.10.2022
CORAM
THE HON'BLE MRS JUSTICE J. NISHA BANU AND THE HON'BLE MR JUSTICE N. ANAND VENKATESH H.C.P.(MD)No.735 of 2022 K.Lakshmi ... Petitioner / Mother of the Detenu /Vs./ 1.State of Tamil Nadu, Rep. by the Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate, Thoothukudi District, Thoothukudi.
3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.
...Respondents
PRAYER:
Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the entire records connected with the detention order passed in H.S.(M)Confdl.No.80 of 2022, dated
25.04.2022 on the file of the second respondent herein and quash the same and direct the respondents to produce the detenu or body of the detenu namely, the petitioner's son i.e., Kodangi @ Koda @ Muthu, aged about 20 years, S/o.Katturaja, now detained at the Central Prison, Palayamkottai, before this Court and set him at liberty forthwith. For Petitioner : Mr.N.Pragalathan For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor
ORDER
J. NISHA BANU,J.
and N. ANAND VENKATESH,J.
The petitioner is the mother of the detenu viz., Kodangi @ Koda @ Muthu S/o. Katturaja, aged about 20 years. The detenu has been detained by the second respondent by his order in H.S.(M) Confdl.No.80 of 2022, dated 25.04.2022 holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.
2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority. 3.Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel for the petitioner focussed his argument on the ground that the detaining authority has taken into consideration the fact that the accused, who are similarly placed, have been granted bail by the competent Court.
4.The learned counsel for the petitioner submitted that the detaining authority, without the availability of materials, cannot ipso facto satisfy himself regarding the imminent possibility of the detenu coming out on bail, merely on the ground that the accused, who are similarly placed have been granted bail.
5.The learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in Rekha v. State of Tamil Nadu ((2011) 5 SCC
244) to substantiate his submission.
6. Apart from the other grounds, the main ground that was urged by the learned counsel appearing for the petitioner is that the detaining authority, after noting the fact that there was no bail petition pending as on the date of passing the detention order, placed reliance upon the order passed in Crl.O.P.(MD)No.23893 of 2016 by this Court and came to the conclusion that it is a similar case and there is a likelihood of the detenu being let out on bail. The learned counsel for the petitioner submitted that the order that was relied upon by the detaining authority does not pertain to a similar case and the detention order suffers from non-application of mind.
7. The learned Additional Public Prosecutor strongly opposed this Habeas Corpus Petition by filing his counter.
8. We have carefully gone through the order passed in Crl.O.P(MD)No.23893 of 2016. In that case, the final report was already filed and the accused therein had undergone a considerable period of incarceration. The said order cannot be treated as a similar case, since in the present case no final report was filed and the detention order was passed
within a period of 28 days from the time, when the detenu was arrested in the ground case and the investigation was pending. Hence, the detention order suffers from non-application of mind and therefore, the same is liable to be quashed.
9.The issue that has been raised by the learned counsel for the petitioner is no longer res integra and it is covered by the judgment that has been cited by the learned counsel for the petitioner, which has been referred supra.
10.The Hon'ble Supreme Court has categorically held in the above judgment that the accused persons, who are similarly placed being granted bail by the same Court or by a higher Court, cannot be a ground for the detaining authority to come to such a subjective satisfaction without there being any materials to substantiate the same. This by itself reflects non application of mind on the part of the detaining authority. Therefore, the order of detention is liable to be interfered with.
11. In the result, the Habeas Corpus Petition is allowed and the order of detention in H.S.(M) Confdl.No.80 of 2022, dated 25.04.2022, passed by the second respondent is set aside. The detenu, viz., Kodangi @ Koda @ Muthu, S/o.Katturaja, aged about 20 years, is directed to be released forthwith unless his detention is required in connection with any other case. (J.N.B.,J.) (N.A.V.,J.) 28.10.2022 Index : Yes/No Internet : Yes ta To:
1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate, Thoothukudi District, Thoothukudi.
3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
J. NISHA BANU,J.
and N. ANAND VENKATESH,J.
ta H.C.P.(MD)No.735 of 2022 28.10.2022