Thayappan v. The Principal Secretary
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.12.2016
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MRS. JUSTICE J.NISHA BANU H.C.P.(MD)No.829 of 2016 Thayappan
...Petitioner
Vs.
1.The Principal Secretary to Government, Home Prohibition and Excise Department State of Tamil Nadu, Fort St. George, Chennai - 600 009.
2.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.
3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
.. Respondents Prayer: Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Habeas Corpus, to call for the records relating to the detention order passed by the 2nd respondent in his proceedings in M.H.S.Confdl.No.75 of 2016 dated 24.06.2016 and to quash the same and direct the respondents to produce the detenu, by name Pitchiam alias Ulli, S/o.Thayappan, aged 23 years, now detained in Palayamkottai Central Prison, before this Court and set him at liberty forthwith. For Petitioner : Mr.R.Vinoth Bharathi For Respondents : Mr.C.Mayilvahana Rajendran, Additional Public Prosecutor
ORDER
(Order of the Court was made by R.SUBBIAH, J.) The petitioner is the father of the detenu by name Mr.Pitchiah @ Ulli, aged about 23 years. The detenu has been detained, as per the order of the second respondent, dated 24.06.2016, under Section 2(f) of the Tamilnadu Act 14 of 1982, branding him as
"Goonda". Challenging the same, the petitioner has come up with this Habeas Corpus Petition.
2.We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents. We have also perused the records carefully.
3.Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel for the petitioner would mainly focus his argument on two grounds:
(i) The first ground is that the subjective satisfaction arrived at by the Detaining Authority that there was a real possibility of the detenu coming out on bail, is totally baseless. He would submit that when there was no bail application at all filed by the detenu in both the 4th and 6th adverse cases and also in the ground case, the question of the detenu coming out on bail does not arise. Thus, there was no real possibility at all for the detenu to come out on bail in two adverse cases and also in the ground case.
Further, the detaining authority has stated that though the detenu has not filed any bail applications in respect of two adverse cases and ground case, there is every possibility of the detenu coming out on bail in future by filing bail applications, because in similar cases, similarly placed persons were granted bail either by the Sessions Court or by the High Court. But, the similar cases relied on by the detaining authority are not similar, or on same set of facts or offences, which would show that there was non application of mind on the part of the detaining authority in arriving at the subjective satisfaction for clamping the order of detention, the learned counsel contended.
(ii) The second ground is that there is violation of procedural safeguards, which are guaranteed under Articles 21 and 22 of the Constitution of India. The learned counsel would submit that the representation made by the petitioner was not considered on time and there was an inordinate and unexplained delay. The learned counsel has relied on few Judgments of the Hon'ble Supreme Court. Based on the same, the learned counsel prayed for setting aside the detention order.
4. The learned Additional Public Prosecutor would, however, oppose this Habeas Corpus Petition. He would submit that the detenu was involved in various offences. He would further submit that there was every possibility for the detenu to move an application for bail in the adverse cases and ground case either before the Court of Sessions or before the High Court and come out on bail, because in similar cases, similarly placed persons were granted bail either by the Sessions Court or by the High Court. Hence, the subjective satisfaction arrived by the detaining authority is reasonable and on that ground, the impugned order need not be interfered with.
5. The learned Additional Public Prosecutor would further submit that though there was delay in considering the representation, on that score also, the impugned detention order need not be interfered with, as on account of the said delay, no prejudice has been caused to the detenu and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.
6. Keeping the submissions made on either side, we have carefully gone through the entire materials available on record. Before going into the first contention, this Court is inclined to extract the decision of the Hon'ble Supreme Court in Rekha Vs. State of Tamil Nadu reported in (2011) 2 SCC (Cri) 596, wherein the three Judges Bench of the Hon'ble Supreme Court in paragraph Nos.10 and 27 has held as follows:
"10.In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the coaccused in the same case and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
11.............
27.In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being
released on bail even though no bail application of his is pending, since most Courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."
From the dictum laid down in the above judgment, it is clear that though no bail application is pending, if the co-accused whose case stands on the same footing had been granted bail and particulars relating to the said bail order have been furnished by the sponsoring authority, the detaining authority can be stated to be justified in clamping the detention order.
7. Though the Hon'ble Supreme Court has held that the bail order relating to the co-accused whose case stands on the same footing can be relied upon, when there is no bail application filed by the detenu in respect of a case for arriving at a subjective satisfaction that the detenu would come out on bail by filing a bail application, here, in this case, the bail orders granted to the co-accused have not been relied upon. This Court is of the view that there are also cases implicating single accused or the stand of the co-accused may be on different footing. In such circumstances, the bail order granted to some other accused in similar cases can be relied upon. At this juncture, a question arises as to what is "similar cases".
With regard to the expression "similar cases", a Division Bench of this Court, after analysing various decisions, has held in an unreported decision in H.C.P.(MD).No.244 of 2014, dated 18.08.2014, in paragraph Nos.72 and 73 as follows; "72.Though the detaining authority has used the expression, "similar cases", the Court is conscious of the fact that there cannot be similarity or same set of facts. Similar cases, therefore in the humble opinion of this Court, should be meant, "similar offences", and it cannot be expected to have the same set of facts, with same overtacts against the accused. 73.Similar, in the meaning given in Oxford English Dictionary, Vol.9 reads as "Having a marked resemblance of likeness, of a nature or kind. In words and phrases, Vol.
39, this word has been defined as "Similar", means nearly corresponding, resembling in many respects; somewhat like; having a general likeliness. [Royer v. Brown, NE 93 A 2d 667, pg.
(1) SCC 605 at page 608 = AIR 1988 SC 631]. "
8. We are also in full agreement with the said view taken by the earlier Division Bench of this Court that "similar cases" should be meant "similar offences". Keeping the said view, if we
look into the detention order, it is apparent that the detenu has not filed any bail application in respect of both the 4th and 6th adverse cases and also in the ground case. However, the detaining authority has, by relying on the similar case particulars relating to the some other accused in some other crime number, arrived at a subjective satisfaction that there is real possibility of the detenu coming out on bail in future by filing the bail application for the above cases, since in similar cases bails are granted by the appropriate Courts. In order to find out whether the similar cases relied on by the detaining authority are on similar offences, this Court is of the view that it would be appropriate to make comparison of the offences relating to the cases where no bail application is filed with the offences relating to the similar cases relied on by the detaining authority as follows; Cases Crime Nos. & Offences Relied on similar case bail petition No., crime No. and offences.
4th adverse case Crime No.35 of Offence : 394 IPC Cr.M.P.No.3330 of 2014 Crime No.254 of 2014 Offences : 392 IPC 6th adverse case Crime No.222 of Offences : 294(b), 392 and 506(ii) IPC Cr.M.P.No.3330 of 2014 Crime No.254 of 2014 Offences : 392 IPC ground case Crime No.223 of Offences - 294(b), 323, 307 and 506 (ii) IPC Cr.M.P.No.7222 of 2015 Crime No.307 of 2015 Offences : 341, 294(b), 324, 307 and 506(ii) IPC
9. A bare perusal of the above comparison makes it clear that the similar cases relied on by the detaining authority are not similar offences or as that of the offences alleged to have been committed by the detenu in the cases where no bail applications are filed. Hence, the subjective satisfaction arrived at the detaining authority that there is real possibility of the detenu coming out on bail in future by filing bail applications in the said cases, is to be termed as ipse dixit, not supported by cogent materials. On that ground alone, the order of detention is liable to be set aside.
10. Insofar as the second ground is concerned, in this case, the Detention Order was passed on 24.06.2016. As against the same, the petitioner made a representation and the same received by the respondents on 04.07.2016. The remarks were called for by the Government from the Detaining Authority on 04.07.2016. The remarks were received on 14.07.2016. Thereafter, the Government considered the issue and passed the order rejecting the representation on 21.07.2016. It is the contention of the petitioner that there was
delay of 7 working days in submitting the remarks by the Detaining Authority and there was delay of 4 working days on the part of the Government in considering the same.
11. Now, the question is as to whether on that score, the impugned order can be quashed.
12. In Rekha Vs. State of Tamil Nadu, [2011 (5) SCC 244], the Hon'ble Supreme Court has held that the right to life and liberty of a person is protected, under Article 21 of the Constitution of India. The Hon'ble Supreme Court has further held that the procedural safeguards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu.
13. In Sumaiya Vs. The Secretary to Government, [2007 (2) MWN (Cr.) 145], a Division Bench of this Court has held that the unexplained delay of three days in disposal of the representation made on behalf of the detenu would be sufficient to set aside the detention order.
14. In Tara Chand Vs. State of Rajasthan and others, [1980 (2) SCC 321], the Hon'ble Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal. This dictum has been followed in several Judgments consistently by the Hon'ble Supreme Court as well as this Court.
15. Applying the said dictum laid down by the Hon'ble Supreme Court, if we look into the facts of the present case, undoubtedly, there is an inordinate and unexplained delay of 11 working days and thus, the impugned detention order is liable to be quashed on this ground also.
16. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the second respondent, in his proceedings in M.H.S.Confdl.No.75/2016, dated 24.06.2016, is quashed. The detenu, namely, Mr.Pitchiah @ Ulli, S/o.Thayappan, aged about 23 years, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar
gcg To 1.The Principal Secretary to Government, Home Prohibition and Excise Department State of Tamil Nadu, Fort St. George, Chennai - 600 009.
2.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.
3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
4 The Joint Secretary to Government, Public (Law and Order) Fort Saint George, Chennai - 9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
JAM/16.02.17/SKN/ 7p-6c Order made in H.C.P.(MD) No.829 of 2016 Dated:
14.12.2016