Krishnamoorthi v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.11.2022

CORAM

THE HON'BLE MR.JUSTICE M.S.RAMESH AND THE HON'BLE MR.JUSTICE N.ANAND VENKATESH H.C.P.(MD)No.779 of 2022 Krishnamoorthi .. Petitioner / brother of the detenu Vs

1. State of Tamil Nadu, Rep. by the Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009.

2. The District Collector and District Magistrate, Thoothukudi District, Thoothukudi.

3. The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District.

.. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the entire records relating to the detention order passed by the second Respondent in H.S(M).Confdl.No.

67/2022 dated 12.04.2022 and to quash the same and direct the Respondents to produce the body or person of the detenu by name, Lakshmanan, son of Subramanian, aged about 26 years, now detained at the Central Prison, Palayamkottai, before this Court and set him at liberty. For Petitioner : Mr.S.Vishnuvardhan For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor

ORDER

N. ANAND VENKATESH, J.

The petitioner is the brother of the detenu viz., Lakshmanan, son of Subramanian, aged about 26 years. The detenu has been detained by the second respondent by his order in H.S(M).Confdl.No.67/2022 dated 12.04.2022 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. Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel for the petitioner focussed his argument on the ground, wherein, the detaining authority has taken into consideration the

fact that the accused, who are similarly placed, have been granted bail by the competent Court.

3. 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.

4. 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.

5. The learned Additional Public Prosecutor, on instructions, submitted that the detenu was arrested on 25.03.2022. Thereafter, the investigation was completed and final report was filed on 18.04.2022. The learned Magistrate committed the case to the Principal District Judge, Thoothukudi and the same was taken on file in S.C.No.126/2022.

6. The main ground that was urged by the learned counsel for the petitioner is that the detaining authority after noting that there was only an attempt on the part of the detenu to file bail petition, relied upon a bail order passed in Crl.O.P(MD)No.23893 of 2016 dated 23.12.2016 and came to a conclusion that there is a likelihood of the detenu coming out on bail. According to the learned counsel appearing for the petitioner, the similar case that was taken into consideration by the detaining authority to come to a conclusion that there is a likelihood of the detenu being released on bail, is not a similar case. Hence, the detention order suffers from non application of mind.

7. We have carefully considered the submissions made by the learned counsel for the petitioner as well as the learned Additional Public Prosecutor appearing on behalf of the respondents.

8. We have carefully gone through the detention order as well as the bail order passed in Crl.O.P(MD)No.23893 of 2016 dated 23.12.2016. In the said case, this Court took into consideration the fact that the investigation was completed and the final report was filed and it was

pending before the Magistrate. This Court also took into consideration the period of incarceration that was suffered by the accused therein. In view of the same, the order that was referred to by the detaining authority cannot be considered to be a similar case. Hence, we find that the subjective satisfaction arrived at by the detaining authority with regard to the likelihood of the detenu coming out on bail suffers from non-application of mind on the part of the detaining authority.

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.67/2022 dated 12.04.2022 passed by the second respondent is set aside. The detenu, viz., Lakshmanan, son of Subramanian, aged about 26 years, is directed to be released forthwith unless his detention is required in connection with any other case. [M.S.R.,J.] & [N.A.V.,J.] 18.11.2022 Index : Yes/No Internet : Yes PJL To

1. The Additional Chief Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009.

2. The District Collector and District Magistrate, Thoothukudi District, Thoothukudi.

3. The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District.

4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

M.S.RAMESH,J.

and N. ANAND VENKATESH,J.

PJL H.C.P.(MD)No.779 of 2022 18.11.2022