Hemalatha v. The Principal Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE R.KALAIMATHI H.C.P.(MD)Nos.852, 854 & 862 of 2023 Hemalatha : Petitioner in H.C.P.(MD)No.852/2023 Sasikumar : Petitioner in H.C.P.(MD)No.854/2023 Raja @ Singhi Raja : Petitioner in H.C.P.(MD)No.862/2023 Vs.
1.The Government of Tamil Nadu, Rep. by the Principal Secretary to Government, Home Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police, Madurai City, Madurai.
3.The Superintendent, Central Prison, Madurai District.
: Respondents in all HCPs
PRAYER in H.C.P.(MD)No.852 of 2023: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, to call for the records made in 23/BCDFGISSSV/2023 dated 12.04.2023 on the file of the second respondent and quash the same and consequently direct the respondents to produce the petitioner's son namely, "Siva @ Sivapriyan, S/o. Anandan, aged about 28 years" who is now detained as a detenue at Central Prison, Madurai, his corpus or body before this Court.
PRAYER in H.C.P.(MD)No.854 of 2023: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, to call for the records made in 25/BCDFGISSSV/2023 dated 13.04.2023 on the file of the second respondent and quash the same and consequently direct the respondents to produce the petitioner's son namely, "Vigneshwaran, S/o.Sasikumar, aged about 21 years" who is now detained as a detenue at Central Prison, Madurai, his corpus or body before this Court.
PRAYER in H.C.P.(MD)No.862 of 2023: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, to
call for the records made in 26/BCDFGISSSV/2023 dated 13.04.2023 on the file of the second respondent and quash the same and consequently direct the respondents to produce the detenue namely, Raja @ Singhi Raja, S/o.Gopi, aged about 21 years before this Court. For Petitioner : Mr.J.Sankara Pandian [In all H.C.Ps.] For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor [In all H.C.Ps] COMMON ORDER ********************* [Common order of the Court was made by M.SUNDAR, J.] This common order will govern the captioned three 'Habeas Corpus Petitions' ['HCPs in plural and HCP in singular' for the sake of brevity, convenience and clarity]. H.C.P.(MD)No.852 of 2023 shall be referred to as I HCP, H.C.P.(MD)No.854 of 2023 shall be referred to as II HCP and H.C.P.(MD)No.862 of 2023 shall be referred to as III HCP. 2.The detenues in the aforementioned three HCPs are co-accused in one ground case which constitutes a substantial portion of substratum of the impugned preventive detention orders. Therefore, we are making a common order.
3.I HCP has been filed by the mother of the detenu; II HCP has been filed by the father of the detenue; III HCP has been filed by the detenue, assailing the 'preventive detention orders dated 12.04.2023, 13.04.2023 and 13.04.2023 respectively, bearing reference No.23/BCDFGISSSV/2023, No.25/BCDFGISSSV/2023 and No.26/BCDFGISSSV/2023 respectively' [hereinafter 'impugned preventive detention orders' for the sake of brevity and convenience] made by the second respondent Commissioner of Police, Madurai City, who shall hereinafter be referred to as 'detaining authority' for the sake of convenience and clarity. To be noted, sponsoring authority has not been arrayed as a respondent but we find that 'Station House Officer of V1 Thirupparankundram Police Station' is the sponsoring authority [hereinafter 'Sponsoring Authority' for the sake of convenience and clarity].
4.Impugned preventive detention orders have been made under 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slumgrabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)'
[hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] branding the detenus as 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
5.The impugned preventive detention orders have been passed based on a ground case in Crime No.74 of 2023 on the file of V1 Thirupparankundram Police Station against the detenues for the alleged offences under Sections 341, 294(b), 302 and 506(ii) of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] and subsequently altered into one under Sections 120-B, 147, 341, 294(b), 302 and 506(ii) of IPC. Considering the nature of the challenge to the impugned detention orders, it is not necessary to delve into the factual matrix of the case. 6.Today, Mr.J.Sankara Pandian, learned Counsel on record for petitioners and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all the respondents in all three HCPs are before us. 7.In the final hearing board, today, though very many points have been raised, learned Counsel for the petitioners drew our attention to a portion of the grounds of impugned preventive
detention orders, wherein the detaining authority has relied on a bail order dated 04.01.2020 made in Crl.M.P.No.7049 of 2019 on the file of the Principal Sessions Judge, Madurai [hereinafter 'Periyasamy's case' for the sake of convenience and clarity as Thiru.Periyasamy S/o. Chellapandi, is the petitioner in this bail order], for arriving at subjective satisfaction qua imminent possibility of detenues being enlarged on bail.
8.Learned Counsel adverting to Periyasamy's case bail order, which has been furnished to the detenues as part of the grounds booklet submitted that in Periyasamy's case, the parameters and determinants which weighed in the minds of the bail Court for granting bail are very different from the ground case. 9.Learned Counsel drew our attention to paragraph No.6 of Periyasamy's case bail order, wherein the bail Court ie., learned Principal Sessions Judge has made it clear that four determinants have weighed in the minds of the trial Court in granting the relief and they are as follows:
a) The petitioner was in judicial custody for 80 days. b) Substantial part of investigation is over.
c) Already one co-accused has been granted bail. d) There are no antecedents for the petitioner [Periyasamy] in that case.
10.Learned Counsel submitted that none of these parameters will apply to the case on hand as all three detenues have been incarcerated for two months, the investigation was completed and charge sheet was filed in the trial Court only on 26.04.2023, after the impugned preventive detention orders were made and in all these cases there are multiple adverse cases against the detenues. In other words, on the date of making of the impugned preventive detention orders, the investigation was not over. To be noted, none of the co-accused were enlarged on bail. All the three accused have adverse cases and the details of the adverse cases have been set out in the impugned preventive detention orders.
11.Setting out this aspect of the matter, learned Counsel submitted that the subjective satisfaction arrived at by the detaining authority as regards the imminent possibility of the detenues being enlarged on bail is clearly impaired.
12.In response to the aforementioned arguments, learned Additional Public Prosecutor submitted that the alleged offence in Periyasamy's case and the ground case are broadly comparable. 13.We carefully considered the rival submissions. 14.This Court has repeatedly held that when it comes to subjective satisfaction of the detaining authority as regards imminent possibility of detenues being enlarged on bail it is not just comparison of the alleged offence but it is also comparison of determinants/parameters for grant of bail which is a discretionary relief in law.
15.In the case on hand, we find one striking difference between Periyasamy's case bail order and the ground case and that striking difference is there is no adverse case or no antecedents in Periyasamy's case, whereas in the case on hand all three detenues have adverse cases ie., antecedents even according to the impugned preventive detention orders. The details of the adverse cases have been captured in the impugned preventive detention orders and the same are as follows:
I HCP:
II HCP:
III HCP:
16.In the light of the narrative, discussion and dispositive reasoning, we have no hesitation in accepting the argument of the learned Counsel for the petitioner that subjective satisfaction arrived at by the detaining authority qua imminent possibility of the detenues being enlarged on bail is clearly impaired. This means that the impugned preventive detention orders ie., all three impugned preventive detention orders deserve to be dislodged in these habeas legal drills on hand.
17.Ergo, the sequitur is:
i) Captioned I HCP is allowed. Impugned preventive detention order dated 12.04.2023 bearing reference 23/BCDFGISSSV/2023 made by the second respondent is set aside and the detenu Thiru.Siva @ Sivapriyan, son of Thiru.Anandan, aged 28 years, is directed to be set at liberty forthwith, if not required in connection with any other case / cases.
ii) Captioned II HCP is allowed. Impugned preventive detention order dated 13.04.2023 bearing reference 25/BCDFGISSSV/2023 made by the second
respondent is set aside and the detenu Thiru.Vigneshwaran, son of Thiru.Sasikumar, aged 21 years, is directed to be set at liberty forthwith, if not required in connection with any other case / cases. iii) Captioned III HCP is allowed. Impugned preventive detention order dated 13.04.2023 bearing reference 26/BCDFGISSSV/2023 made by the second respondent is set aside and the detenu Thiru.Raja @ Singhi Raja, son of Thiru.Gopi, aged 21 years, is directed to be set at liberty forthwith, if not required in connection with any other case / cases.
There shall be no order as to costs.
[M.S.,J.] & [R.K.M.,J.] 05.10.2023 Index : Yes/No Internet : Yes/No MR P.S: Registry to forthwith communicate this common order to Jail authorities in Central Prison, Madurai.
To 1.The Principal Secretary to Government, Home Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police, Madurai City, Madurai.
3.The Superintendent, Central Prison, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
M.SUNDAR, J.
and R.KALAIMATHI, J.
MR COMMON ORDER MADE IN H.C.P.(MD)Nos.852, 854 & 862 of 2023 05.10.2023