Muthuraj v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.10.2022

CORAM

THE HON'BLE MRS JUSTICE J. NISHA BANU AND THE HON'BLE MR JUSTICE N. ANAND VENKATESH H.C.P.(MD)No.842 of 2022 Muthuraj ... Petitioner / 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, calling for the entire records connected with the detention order passed in H.S.(M)Confdl.No.62/2022 dated 06.04.2022

on the file of the 2nd Respondent and quash the same and direct the respondents to produce the detenu or body of the detenu, namely, Muthuraj S/o.Selvakumar, aged about 22 years, now detained at Central Prison, Palayamkottai before this Court and set him at liberty. 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 detenu viz., Muthuraj S/o.Selvakumar, aged about 22 years. The detenu has been detained by the second respondent by his order in H.S.(M)Confdl.No.62/2022 dated 06.04.2022 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 main ground that was urged by the learned counsel for the petitioner is that the detaining authority was aware of the fact tha the bail application that were filed by the detenue were dismissed and no bail

application was pending as on the date, when detention order was passed. However, the detaining authority took into consideration the bail that was granted in Cr.M.P.No.7630/2019 dated 11.11.2019 and came to a conclusion that bail has been granted in the similar. 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.

6. 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.

7. We have carefully gone through the bail order relied upon by the detaining authority passed in Crl.M.P.No.7630 of 2019 dated 11.11.2019. The accused therein was granted bailon the ground that there was no serious objection from the prosecution and the injured had already been discharged from the hospital. The facts of that case cannot be treated to be a similar case since in the present case, the prosecution has vehemently opposed the

bail petition filed by the detenu and there was no bail petition pending as on the date of passing of the detention order. In view of the same, 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 nonapplication of mind on the part of the detaining authority. 8.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.

9.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.

10.In the result, the Habeas Corpus Petition is allowed and the order of detention in H.S(M).Confdl.No.62/2022 dated 06.04.2022 passed by the second respondent is set aside. The detenu, viz., Muthuraj, S/o.Selvakumar, aged 22 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.) 19.10.2022 Index : Yes/No Internet : Yes PJL To:

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.

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

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

PJL H.C.P.(MD)No.842 of 2022 19.10.2022