G.Suryakalarani v. The Additional Chief 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.952 & 1101 of 2023 G.Suryakalarani : Petitioner in H.C.P.(MD)No.952/2023 Sarasu : Petitioner in H.C.P.(MD)No.1101/2023 Vs.
1.The State of Tamil Nadu, Rep. by the Additional Chief Secretary to Government, Home Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Magistrate and District Collector, O/o. The District Magistrate and District Collector, Karur District, Karur.
3.The Superintendent, Central Prison, Tiruchirappalli District.
: Respondents in all HCPs
PRAYER in H.C.P.(MD)No.952 of 2023: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the entire records in detention order passed in Cr.M.P.No. 10/2023 dated 12.04.2023 on the file of the second respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's son namely Sanjai @ Sanjaikumar S/o.Gopinath, male aged 21 years, who is detained in Central Prison, Tiruchirappalli.
PRAYER in H.C.P.(MD)No.1101 of 2023: 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 of the second respondent in Cr.M.P.No.09/2023 dated 12.04.2023 and quash the same and to direct the respondents to produce the body or person of the detenue by name Pencil @ Tamilalagan Son of Manoharan, aged about 28 years now confining as "Goonda" at Trichy Central Prison before this Court and set him at liberty forthwith.
For Petitioner : Mr.K.A.S.Prabhu [In H.C.P.(MD)No.952/23] For Petitioner : Mr.B.Micheal Sebastin [In H.C.P.(MD)No.1101/23] 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 two 'Habeas Corpus Petitions' ['HCPs in plural and HCP in singular' for the sake of brevity, convenience and clarity]. H.C.P.(MD)No.952 of 2023 shall be referred to as I HCP and H.C.P.(MD)No.1101 of 2023 shall be referred to as II HCP.
2.The detenues in the aforementioned two 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.Both I and II HCPs have been filed by the mothers of the respective detenus assailing the 'preventive detention orders dated 12.04.2023 bearing reference Cr.M.P.No.10/2023 and Cr.M.P.No. 09/2023 respectively' [hereinafter 'impugned preventive detention orders' for the sake of brevity and convenience] made by the second respondent District Collector, Karur District, 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 Karur Town 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.There are two adverse cases. The impugned preventive detention orders have been passed based on a ground case in Crime No.114 of 2023 on the file of Karur Town Police Station against the detenues for the alleged offences under Sections 294(b), 449, 506(ii) and 302 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity]. 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.K.A.S.Prabhu, learned Counsel on record for petitioner in I HCP, Mr.B.Micheal Sebastin, learned Counsel on record for petitioner in II HCP and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all the respondents in both 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 04.02.2019 made in Crl.M.P.No.61 of 2019 on the file of
the Principal and Sessions Judge, Dindigul [hereinafter 'Mallees's case' for the sake of convenience and clarity as Thiru.Mallees Murugan S/o.Krishnan, 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 Mallees's case bail order, which has been furnished to the detenues as part of the grounds booklet submitted that in Mallees'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 Mallees's case bail order, which bring to light that the bail Court ie., learned Principal and Sessions Judge has inter-alia applied four determinants in granting the relief and they are as follows:
a) The petitioner was in judicial custody for 82 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 [Mallees Murugan] in that case.
10.Learned Counsel submitted that none of the aforementioned parameters will apply to the case on hand as both the detenues have been incarcerated for two months, the investigation was completed and charge sheet was filed in the trial Court only on 28.04.2023, after the impugned preventive detention orders were made and in both 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 coaccused were enlarged on bail. Both the detenues 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 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 Mallees'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 Mallees's case bail order and the ground case and that striking difference is there is no adverse case or no antecedents in Mallees's case, whereas in the case on hand both the 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:
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 petitioners 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., both 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 Cr.M.P.No.10/2023 detenu Thiru.Sanjai @ Sanjaikumar, son of Thiru.Gopinath, aged 21 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 12.04.2023 bearing reference Cr.M.P.No.09/2023 made by the second respondent is set aside and the detenu Thiru.Pencil @
Tamilalagan, son of Thiru.Manoharan, aged 28 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, Tiruchirappalli.
To 1.The Additional Chief Secretary to Government, Home Prohibition and Excise Department, Secretariat, Chennai - 600 009.
2.The District Magistrate and District Collector, O/o. The District Magistrate and District Collector, Karur District, Karur.
3.The Superintendent, Central Prison, Tiruchirappalli 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.952 & 1101 of 2023 05.10.2023