R.Adivetti v. The District Collector And

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.05.2016 CORAM :

THE HONOURABLE MR.JUSTICE R.MAHADEVAN and THE HONOURABLE MR.JUSTICE S.S.SUNDAR Habeas Corpus Petition (MD) No.227 of 2016 R.Adivetti ... Petitioner Vs.

1.State represented by The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.

2.The Principal Secretary to Government, Home Prohibition and Excise (xiv) Department, Secretariat, Chennai 9.

... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus, calling for the records from the first respondent in M.H.S.Confdl No.133/2015 dated 2.12.2015 by setting aside the said order of detention passed by the 1st respondent and setting the detenuue Kottursamy aged 24 years S/o.Ramaiah at liberty now detained in the Central Prison palayamkottai.

For Petitioner : Mr.V.Kathirvelu, Senior Counsel for Mr.K.Prabhu For Respondents : Mr.C.Ramesh, Additional Public Prosecutor.

ORDER

(Order of the Court was made by R.MAHADEVAN,J) The petitioner is the mother of the detenu, namely, Kottursamy, aged 24 years, son of Ramaiah, who has been detained under the Tamil Nadu Act 14 of 1982 by the order of the first respondent, in his proceedings in M.H.S.Confdl.No.133/2015, dated 02.12.2015, branding him as a 'Goonda', taking note of the ground

case in Crime No.123 of 2015 on the file of Puliyarai Police Station, registered for the alleged offence punishable under Sections 279, 338, 304(A) I.P.C. altered into Sections 120(B), 302 I.P.C. and also the adverse case in Cr.No.106 of 2015 on the file of Puliyarai Police Station, for the offence under Sections 294 (b), 323, 324 and 506(ii) I.P.C. Challenging the same, the petitioner is before this Court with this Habeas Corpus Petition.

2. We have heard the learned Senior Counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds have been raised in this petition, the learned Senior Counsel appearing for the petitioner would mainly focus his argument on the ground that the subjective satisfaction arrived at by the Detaining Authority that there was every real possibility for the detenu to come out on bail is not based on any material. Moreover, the detaining authority referred to a bail order in a different case when no bail application was pending as on the date of the order of detention in the ground case. The said comparison to express subjective satisfaction is against the dictum of the Hon'ble Supreme Court consisting of three Hon'ble Judges in Rekha Vs. State of Tamil Nadu, reported in 2011 (5) SCC 244 and also the judgment of a Division Bench of the Madras High Court in H.C.P[MD].No.1154 of 2015, dated 11.08.2015 [Chandrakala Vs.

The Secretary to Government] and thus, the detention order is liable to be set aside. This, according to the learned Senior Counsel appearing for the petitioner is totally baseless and reflecting the total non-application of mind of the Detaining Authority.

4. Despite several opportunities given, no counter affidavit is forthcoming on the side of the respondents. Also, the learned Additional Public Prosecutor is not in a position to dispute the above fact. However, he submitted that though there is no bail application pending, the subjective satisfaction of the Detaining Authority has also to be looked into.

5. We have considered the above said submissions and perused the materials available on record.

6.Regarding the subjective satisfaction of the detaining authority as to the real possibility of the detenu coming out on bail in the ground case, the detaining authority made the following observation:

"6. I am aware that the anticipatory bail was granted to Thiru.Kottursamy before the Principal Sessions Court, Tirunelveli in CRMP.No.5297/2015 on 27.08.2015 in Puliyarai Police Station Crime Number 106/2015. I am also aware that the sponsoring Police officer has stated that Thirumathi.Adivetti, mother of Thiru.Kottursamy is taking action to take out her son on bail by filing a bail application for Puliyarai Police Station Crime Number 123/2015. Thiru.Kottursamy is in remand in Puliyarai Police

Station Crime Number 123/2015 and in this case he has not filed any bail application so far. I am also aware that there is real possibility of his coming out on bail in future by filing bail application for the above cases since in similar cases bails are granted by the appropriate courts. I am also aware that in a similar case bail has been granted to Kumar in CRMP.No.373/2012 dated 07.02.2012 by the Principal Sessions Court, Tirunelveli. I therefore infer that there is real possibility of his (Thiru.Kottursamy) coming out on bail in Puliyarai Police Station Crime Number 123/2015, since bails are granted by the appropriate courts in such cases. ..."

7.It is an admitted fact that no bail application was filed by the detenu in the ground case and the same was also taken note of by the detaining authority. When no bail application is pending, the detaining authority could refer to a bail granted to a coaccused in the same case to express the subjective satisfaction of the real possibility of the detenu coming out on bail. Only in case a bail application is pending, the detaining authority can refer to a similar case in which bail was granted to the accused therein, in support of his subjective satisfaction regarding the real possibility of the detenu coming out on bail. It has been held so by a Division Bench of the Madras High Court in H.C.P.No.1154 of 2015, dated 11.08.2015 [Chandrakala Vs.

The Secretary to Government], following the judgment of the Hon'ble Supreme Court consisting of three Hon'ble Judges in Rekha Vs. State of Tamil Nadu, reported in 2011 (5) SCC 244, which position was clarified by a Division Bench of the Hon'ble Supreme Court consisting of two Hon'ble Judges in Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181.

8. Hence, we come to the conclusion that the subjective satisfaction expressed by the detaining authority regarding the real possibility of the detenu coming out on bail in the ground case to justify the clamping of the order of detention, while the detenu was in custody as a remand prisoner, can be termed "ipse dixit" not supported by cogent materials. On that ground alone, the order of detention is liable to be set aside.

9. In the result, the impugned detention order passed by the first respondent, detaining the detenu, namely, Kottursamy, son of Ramaiah, aged 24 years, made in M.H.S.Confdl.No.133/2015, dated 02.12.2015, is quashed and the Habeas Corpus Petition is allowed. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. Sd/- Assistant Registrar(Records) /True copy/ Sub Assistant Registrar

To 1.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.

2.The Principal Secretary to Government, Home Prohibition and Excise (xiv) Department, Secretariat, Chennai 9.

3. The Joint Secretary to Government, Public (Law & Order) Department, Fort St. George, Chennai - 600 009. 4.The Director General of Police, Chennai-4.

5.The Superintendent,Central Prison palayamkottai. 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+one cc to M/s.K.Prabhu, Advocate in SR.No.26826 sms/rsb CSL/NGM/SAR-II/01.06.2016 :4P/8C Habeas Corpus Petition (MD) No.227 of 2016 23.05.2016