B.Esakkiammal v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.12.2022

CORAM

THE HON'BLE MR JUSTICE M.S. RAMESH AND THE HON'BLE MR JUSTICE N. ANAND VENKATESH H.C.P.(MD)No.1255 of 2022 B.Esakkiammal ... Petitioner / Mother of the 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, Tirunelveli District, Tirunelveli.

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 M.H.S.Confdl.No.67/2022 dated 14.05.2022 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 Ajithkumar, son of Balasubramanian, aged about 22 years, now detained at the 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

N. ANAND VENKATESH,J.

The petitioner is the mother of the detenu viz., Ajithkumar, son of Balasubramanian, aged about 22 years. The detenu has been detained by the second respondent by his order in M.H.S.Confdl.No.67/2022 dated 14.05.2022 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 learned Additional Public Prosecutor, on instructions, submitted that the detenu was arrested on 16.04.2022. Thereafter, the investigation was completed and final report was filed on 30.04.2022 on

time and it has been taken on file in S.C.No.282/2022 before IV-Additional District Court, Tirunelveli.

6. The main ground that was urged by the learned counsel for the petitioner is that the detaining authority after taking note of the fact that the the detenu is not filed any bail application, came to a conclusion that there is a likelihood of the detenu coming out on bail by relying upon the bail order passed in Cr.M.P.No.5531/2021 dated 13.09.2021. 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.

7. 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.

8. We have carefully gone through the detention order as well as the bail order passed in Cr.M.P.No.5531/2021 dated 13.09.2021. It is seen that

in that case the accused therein was granted bail on the ground that no serious objection was raised by the prosecution and that apart the accused therein had suffered incarceration nearly 81 days. By no stretch, the said order cannot be considered to be a similar case. Hence, 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 non-application of mind on the part of the detaining authority.

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 M.H.S.Confdl.No.67/2022 dated 14.05.2022 passed by the second respondent is set aside. The detenu, viz., Ajithkumar, son of Balasubramanian, aged about 22 years, is directed to be released forthwith unless his detention is required in connection with any other case. (M.S.R.,J.) & (N.A.V.,J.) 01.12.2022 Index : Yes/No Internet : Yes PJL To 1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The District Magistrate and District Collector, Tirunelveli District, Tirunelveli.

3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.

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

M. S. RAMESH,J.

and N. ANAND VENKATESH,J.

PJL H.C.P.(MD)No.1255 of 2022 01.12.2022