Shanthi, W/O Dhanabalan, v. The Secretary To Govt.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.12.2016

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MRS.JUSTICE J.NISHA BANU H.C.P.(MD)No.1056 of 2016 Shanthi :Petitioner Vs.

1.State of Tamil Nadu, rep. by, The Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-9.

2.The District Collector and District Magistrate, O/o. The District Collector and District Magistrate, Nagapattinam District, Nagapattinam.

3.The Superintendent, Central Prison, Tiruchirappalli.

:Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus, to call for the entire records in detention order passed in C.O.C.No.54/2016, dated 06.08.2016 on the file of the second respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's husband, namely Dhanabalan @ Ayyar, S/o.Ponnusamy, male, aged 49 years, who is detained in Central Prison, Tiruchirappalli before this Court and set him at liberty.

For Petitioner : Mr.K.A.S.Prabhu For Respondents : Mr.C.Mayilvahana Rajendran, Additional Public Prosecutor *********

ORDER

****** [Order of the Court was made by R.SUBBIAH, J] The petitioner challenges the order of detention dated 06.08.2016, passed by the second respondent in his proceedings in C.O.C.No.54/2016, detaining the detenu as 'Boot-Legger', as contemplated under Section 2(b) of Tamil Nadu Act 14 of 1982.

2. When the matter was taken up for consideration, the learned counsel for the petitioner submitted that in the ground case in Crime No.631 of 2016, bail application was filed before the learned Sessions Judge, Nagapattinam, in Cr.M.P.No.1848 of 2016, on 26.07.2016 and the same is pending. However, the Detaining Authority, while arriving at subjective satisfaction that the detenu conformed to the definition of "Boot-Legger", in paragraph No.5 of the grounds of detention, has stated that "there is a real possibility of (Thiru.Dhanabalan @ Ayyar, Male, aged 49/2016, S/o.Ponnusamy) coming out of bail by filing a bail application for the above case before the Higher Court". The above said observation that there was real possibility of coming out on bail by filing a bail application in the Higher Court, while bail petition filed before the learned Sessions Judge in the very same case in Crime No.631 of 2016 was pending, shows total nonapplication of mind. Thus, on the ground of non-application, the Order of Detention is liable to be set aside.

3. In this regard, the learned counsel relied upon a judgment of this Court in Lakshminarayanan v. Secretary to the Government [2014(2) MLJ (Crl) 173]. The relevant portion from the said judgment reads as follows:

"7. From the reading of the above, it is clear that the detaining authority has mentioned that the detenu has moved a bail application in Crime No.1461 of 2013 before the Principal District and Sessions Court, Chengalpattu, in Crl.M.P.No.3237 of 2013 and the same is pending. While so, the detaining authority has arrived at subjective satisfaction that there is likelihood of the detenu coming out on bail by filing bail application for the very same Crime No.1461 of 2013.

When the bail application moved by the detenu is pending before the concerned Sessions Court, it is not incumbent on the detaining authority to arrive the satisfaction that there is likelihood of the detenu coming out on bail by filing bail application, which would clearly shows the non-application of mind on the part of the detaining authority in clamping the order of detention against the detenu. In support of his contention, the learned counsel for the petitioner relied on a unreported decision of this Court in H.C.P.No.487 of 2008, dated 22.07.2008. On consideration of every material and the order in question, we have no hesitation to hold that the order was passed by the detaining authority with total non-application of mind and therefore the impugned detention order cannot be allowed to stand."

4. The said judgment is squarely applicable to the facts of the present case. Therefore, as rightly contended by the learned counsel for the petitioner, the Detaining Authority exhibited non-

application of mind regarding the pendency of the bail application by making an observation that there was real possibility of the detenu coming out on bail by filing a bail application before the Higher Court. Hence, on the ground of non-application of mind, the subjective satisfaction expressed by the Detaining Authority is vitiated. On that ground alone, the order of detention is liable to be set aside.

5. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 06.08.2016, made in C.O.C.No.54/2016, by the second respondent and directs the release of the detenu, by name Dhanabalan @ Ayyar, S/o.Ponnusamy, aged about 49 years, forthwith, if his continued custody is not authorised in specific cases or by any other detention order.

Sd/- Deputy Registrar(Accounts) /True Copy/ Sub Assistant Registrar(CS) Madurai Bench of Madras High Court, Madurai-23.

To 1.The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai-9.

2.The District Collector and District Magistrate, O/o. The District Collector and District Magistrate, Nagapattinam District, Nagapattinam.

3.The Superintendent, Central Prison, Tiruchirappalli.

4 The Joint Secretary to Government, Public (Law & Order) Department, Fort St.George, Chennai.

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

+1cc to M/s.K.A.S.Prabhu, Advocate in SR.803188 H.C.P.(MD)No.1056 of 2016 Dated: 08.12.2016 sml PBK/KM 22/12/2016 ::3P-7C: