J.Indra v. The Principal Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12.10.2023 CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL J.Indra ... Petitioner vs.
1. Government of Tamil Nadu, Rep. by the Principal Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Secretariat, Chennai-600 009.
2. The State Represented by, The District Collector and District Magistrate, Tenkasi, Tenkasi District.
3. The Superintendent, Central Prison, Palaymakottai, Tirunelveli District.
... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus, calling for the entire records connected with the detention order of the 2nd respondent in Detention Order No.M.H.S.Confdl.No.28/2023 dated 20.04.2023 and quash the same as illegal and direct the respondents to produce the person or body of the detenu namely J.Vignesh S/o. Jeyaseelan aged 24 years (now detained at Central Prison, Palayamkottai) before this Court and set him at liberty.
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For Petitioner : Mr.K.Dinesh For Respondents : Mr.A.Thiruvadi Kumar Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.] Captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] has been filed by mother of the detenu assailing the 'preventive detention order dated 20.04.2023 bearing reference No.M.H.S.Confdl No.28/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience]. To be noted, sponsoring authority has not been arrayed as a respondent and we find that Station House Officer of Pavoorchatram Police Station is the sponsoring authority [hereinafter 'sponsoring authority' for convenience and brevity] and the second respondent is the detaining authority as the impugned preventive detention order has been made by second respondent.
2.
Captioned HCP was listed for admission on 02.08.2023 and Hon'ble predecessor Bench made the following order: 'H.C.P.No.953 of 2023 M.S.RAMESH, J.
and M.NIRMAL KUMAR, J.
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Admit.
Mr.A.Thiruvadi Kumar learned Additional Public Prosecutor takes notice for the respondents. He seeks time to file counter affidavit.
Post the matter after six weeks.'
3.
Impugned detention order has 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, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity] on the premise that the detenu is a 'Sexual Offender' within the meaning of Section 2(ggg) of Act 14 of 1982.
4.
There is no adverse case. This solitary case which is the sole substratum of impugned preventive detention order is ground case qua the detenu for alleged offence under Section 366(A) of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity] and Sections 3 and 4 of Protection of Children from Sexual Offences Act, 2012 [hereinafter 'POCSO Act' for brevity] in Crime No.292 of 2022 on the file of Pavoorchatram Police Station.
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5.
Mr.K.Dinesh, learned counsel on record for petitioner and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor, for all the respondents are before us.
6.
In the final hearing today, learned counsel predicated his campaign against the impugned preventive detention order on the point that subjective satisfaction arrived at by the detaining authority as regards imminent possibility of detenu being enlarged on bail is impaired. Elaborating on this submission, learned counsel drew our attention to a portion of paragraph 6 of the grounds of detention and the relevant portion reads as follows:
'6.... I am also aware that in a similar case bail has been granted to Ganesan in CRL MP No.762/2021 on 27.05.2021 by the Sessions Judge, Special Court for POCSO Act Cases, Tirunelveli. I therefore infer that there is real possibility of Thiru.Vignesh coming out on bail in Pavoorchatram Station Crime No.292/20222 since bails are granted by the appropriate courts in such cases. ....' 7.
Learned counsel submitted that aforementioned bail order in 'Ganesan vs State' [hereinafter 'Ganesan's case bail order' for the sake of convenience] has been furnished to the detenu as part of the grounds Page No.4 of 8
booklet. Adverting to the aforementioned Ganesan's case bail petition as well as bail order thereat i.e., Ganesan's case bail order in the grounds booklet, learned counsel submitted that the aforementioned bail order dated 27.05.2021 made by learned Sessions Judge, Special Court for POCSO Act Cases, Tirunelveli, is a default bail under Section 167(2) of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'CrPC' for the sake of brevity and clarity] and therefore the subjective satisfaction [qua imminent possibility of detenu being enlarged on bail] arrived at by the Detaining Authority is impaired. 8.
Responding to the aforementioned argument, learned Prosecutor submitted that the alleged offence/alleged charge in both cases i.e., ground case and Ganesan's case bail order are broadly comparable.
9.
We carefully considered the rival submissions and we find that the argument of learned counsel for petitioner deserves to be sustained as a default bail order under Section 167(2) Cr.P.C. is more of an arithmetic exercise i.e., numeric statutory expression and there is no discretion for the Trial Court in granting bail unlike a regular bail under Page No.5 of 8
Section 437 Cr.P.C. or 439 Cr.P.C. Therefore, comparison of a default bail order under Section 167(2) Cr.P.C. with the ground case to arrive at aforementioned subjective satisfaction qua imminent possibility of detenu being enlarged on bail is clearly a flawed exercise. The sequitur is, impugned preventive detention order gets vitiated and the same is liable to be dislodged.
10.
Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 20.04.2023 bearing reference No.M.H.S.Confdl.No.28/2023 made by the detaining authority is set aside and the detenu Thiru.J.Vignesh aged 24 years, son of Thiru.Jeyaseelan, 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.S.V., J.) Index : Yes 12.10.2023 : Yes bala P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Palayamkottai.
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To
1. The Principal Secretary to Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Secretariat, Chennai-600 009.
2. The District Collector and District Magistrate, Tenkasi, Tenkasi District.
3. The Superintendent, Central Prison, Palaymakottai, Tirunelveli District.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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M.SUNDAR, J.
and R.SAKTHIVEL, J.
bala ORDER MADE IN DATED : 12.10.2023 Page No.8 of 8