Indira v. The Additional Chief Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.07.2023

CORAM

THE HON'BLE MR JUSTICE M.S.RAMESH AND THE HON'BLE MR JUSTICE M.NIRMAL KUMAR H.C.P.(MD)No.1900 of 2022 Indira ... Petitioner / Mother of the Detenu Vs.

1.The Additional Chief Secretary to the Government, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.

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

3.The Superintendent of Prison, Central Prison, Tiruchirappalli.

.. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the records relating to the

detention order passed by the 2nd respondent in P.D.No.151/2022, dated 27.10.2022 and quash the same and direct the respondents to produce the body or detenu, namely, Anniyan Dhivakar @ Dhivakar, S/o.Anbazhagan, aged about 22 years now detained at Central Prison, Trichy before this Court and set him at liberty. For Petitioner : Ms.P.Krishnaveni For Respondents : Mr.A.Thiruvadikumar Additional Public Prosecutor

ORDER

(Order of the Court was made by M.S.RAMESH,J.) The petitioner is the mother of the detenu viz., Anniyan Dhivakar @ Dhivakar, S/o.Anbazhagan, aged about 22 years. The detenu has been detained by the second respondent by his order in P.D.No.151/2022, dated 27.10.2022, 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.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 appearing for the petitioner mainly contended that the detaining authority was swayed by the fact that the mother of the detenu is attempting to file a bail petition and hence, it is submitted by the learned counsel for the petitioner that the subjective satisfaction that has been arrived at by the detaining authority at Paragraph No.5 of the order is not supported by any materials. Therefore, the same also suffers from non application of mind.

4.The learned counsel for the petitioner, in order to substantiate the submissions, relied upon the judgment of the Full Bench reported in 2005 (2) LW 946 [K.Thirupathi v. District Magistrate and District Collector, Tiruchirappalli District & another].

5.The learned Additional Public Prosecutor strongly opposed the Habeas Corpus Petition by filing his counter. 6.The detaining authority has considered the fact that the mother of the detenu is attempting to file a bail petition before the competent Court. Therefore, the detaining authority came to the conclusion that there is an imminent possibility of the detenu coming out on bail. 7.The satisfaction that has been arrived at by the detaining authority is merely on surmises and it is not based on any materials that has been placed before the detaining authority. At this point of time, it will be relevant to take note of the Full Bench judgment, which has been referred supra.

8.The relevant portions are extracted hereunder: "24. The detaining authority is required to follow strictly

and scrupulously the forms and rules of law prescribed in that behalf or by the statutory provision under which the order of detention is being made after arriving at a subjective satisfaction. In the event of any deviation or violation of the statutory provisions or infraction of constitutional guarantees, the Courts will not hesitate to quash the orders of detention. Whatever be the jurisdiction to detain and the slightest infraction of the constitutional guarantee would lead to the detenu being set at liberty.

25. It is by now well settled that in all detention laws, the orders of detention and its continuance of detention should be in conformity with Article 22 of the Constitution of India and slightest infraction of the Constitutional protection enshrined therein would be a valid ground to set the detenu at liberty.

26. There must be cogent material before the Authority passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from material on record and must not be the ipse dixit of the Authority passing the detention order.

27. In the case of a person in custody a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of reliable material placed before him--

(a) that there is a real possibility of his being released on bail, and (b) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording its satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court.

28. It is neither possible nor advisable catalogue the types of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of a case. That is why there is no provision in the Act in that regard and the matter is left to the discretion of the detaining authority. However, the facts stated in the materials relied upon should be true and should have a reasonable nexus with the purpose for which the order is passed."

9.It is clear from the above that the detenu is in custody and he has not filed any bail petition and there are no materials to show that he is taking steps to file a bail petition by himself or through his relatives or it was based merely on the presumption made by the detaining authority, the same reflects non application of mind on the part of the detaining authority.

10.In view of the above, the detention order suffers from non application of mind and the same is liable to be interfered with by this Court. The impugned detention order is, therefore, liable to be quashed. 11.In the result, the Habeas Corpus Petition is allowed and the order of detention in P.D.No.151/2022, dated 27.10.2022 passed by the second respondent is set aside. The detenu, viz., Anniyan Dhivakar @ Dhivakar, S/o.Anbazhagan, 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.) & (M.N.K.,J.) 18.07.2023 NCC : Yes / No Index : Yes / No Yuva

M.S.RAMESH, J.

AND M.NIRMAL KUMAR, J.

Yuva To 1.The Additional Chief Secretary to the Government, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.

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

3.The Superintendent of Prison, Central Prison, Tiruchirappalli.

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

H.C.P.(MD)No.1900 of 2022 18.07.2023