P.Pandiammal v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.10.2022

CORAM

THE HON'BLE MRS JUSTICE J. NISHA BANU AND THE HON'BLE MR JUSTICE N. ANAND VENKATESH H.C.P.(MD)No.972 of 2022 P.Pandiammal ... Petitioner / Mother of the Detenu /Vs./ 1.State of Tamil Nadu, Rep. by the Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Chennai-9.

2.The District Collector / District Magistrate, Madurai District, Madurai.

3.The Superintendent, Central Prison, Madurai.

...Respondents

PRAYER:

Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records pertaining to the proceedings of the second respondent made in his proceedings in detention order No.B.C.D.F.G.I.S.S.S.V.No.21/2022, dated 07.04.2022 and quash the same and set the petitioner's son by name, Malarajan S/o.Pandian, aged about 31 years at liberty from the third respondent.

For Petitioner : Mr.C.Prithviraj For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor

ORDER

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

The petitioner is the mother of the detenu viz., Malarajan S/o. Pandian, aged about 31 years. The detenu has been detained by the second respondent by his order in B.C.D.F.G.I.S.S.S.V.No.21/2022, dated 07.04.2022 holding him to be a "Drug Offender", as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

2. We have heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority. 3.Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel for the petitioner focussed his argument on the

ground that the detaining authority has taken into consideration the fact that the accused, who are similarly placed, have been granted bail by the competent Court.

4.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.

5.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.

6. Apart from the other grounds, the main ground that was urged by the learned counsel appearing for the petitioner is that the detaining authority, after taking note of the fact that the bail petition filed by the detenu is pending, took into consideration the order made in Crl.M.P.No.54 of 2022 and came to the conclusion that it is a similar case and there is a

likelihood of the detenu being let out on bail. The learned counsel for the petitioner submitted that the order that was relied upon by the detaining authority is not the similar case and the detention order suffers from nonapplication of mind.

7. The learned Additional Public Prosecutor strongly opposed this Habeas Corpus Petition.

8. We have carefully gone through the order passed in Crl.M.PNo.54 of 2022. In the said case, the bail was granted mainly on the ground that the accused therein was suffering from cancer and he had already suffered incarceration for more than 39 days. The facts in the said order cannot be considered to be similar to the facts on hand. Hence, the detention order suffers from non application of mind and therefore, the same is liable to be quashed.

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 B.C.D.F.G.I.S.S.S.V.No.21/2022, dated 07.04.2022, passed by the second respondent is set aside. The detenu, viz., Malarajan, S/o.Pandian, aged about 31 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.) 28.10.2022 Index : Yes/No Internet : Yes ta

J. NISHA BANU,J.

and N. ANAND VENKATESH,J.

ta To:

1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Chennai-9.

2.The District Collector / District Magistrate, Madurai District, Madurai.

3.The Superintendent, Central Prison, Madurai.

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

H.C.P.(MD)No.972 of 2022 28.10.2022