Madras High Court
V.Raja vs State Of Tamilnadu on 15 February, 2021
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram, G.Ilangovan
H.C.P.(MD) No.1020 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
H.C.P.(MD) No.1020 of 2020
V.Raja ... Petitioner
-vs-
1.State of Tamilnadu,
Rep. by the Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai-600 009.
2.The District Collector and District Magistrate,
Thiruvarur District,
Thiruvarur.
3.The Superintendent of Prison,
Central Prison,
Trichy,
Trichy District. ... 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
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H.C.P.(MD) No.1020 of 2020
with the detention order passed in C.O.C.No.05/2020, dated 11.10.2020
on the file of the 2nd respondent herein and quash the same and direct
the respondents to produce the detenu or body of the detenu I.e., the
petitioner's son namely Thotho Mani @ Manikandan, aged about 30
years, S/o.Raja, now detained at the Central Prison, Trichy before this
Court and set him at liberty forthwith.
For Petitioner : Mr.N.Pragalathan
For Respondents :Mr.K.Dinesh Babu
Additional Public Prosecutor
ORDER
(Order of the Court was made by K.KALYANASUNDARAM, J.) This habeas corpus petition has been filed by the father of the detenu, namely, Thotho Mani @ Manikandan, son of Raja, aged about 30 years, against the detention order in C.O.C.No.05/2020, dated 11.10.2020, passed by the second respondent, branding him as “Goonda” as contemplated under Section 2(f) of Tamil Nadu Act, 14 of 1982.
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2. Mr.N.Pragalathan, learned counsel appearing for the petitioner would argue that the detention order is liable to be set aside on the sole ground of non application of mind on the part of the detaining authority. It is his submission that in the ground case, the occurrence itself has taken place on 07.07.2020, the case came to be registered on 08.07.2020, but the detaining authority while arriving at the subjective satisfaction, stated the detenu was remanded to the judicial custody on 14.06.2020. It is also submitted that totally there are 11 accused in this case and the detention order came to be clamped on the accused Nos.4 & 8 and the other similarly placed accused have been arrested and released on bail, which shows arbitrary exercise of power.
3. Per contra, Mr.K.Dinesh Babu, learned Additional Public Prosecutor, while reiterating the counter affidavit filed by the second respondent, submitted that the detaining authority taking note of the antecedents of the detenu has passed the detention order after arriving at the subjective satisfaction based on the cogent and relevant materials placed by the Sponsoring Authority and to prevent the detenu from indulging in similar activities in future. It is also submitted that there is no illegality or irregularity in the order of detention. 3/10 http://www.judis.nic.in H.C.P.(MD) No.1020 of 2020
4. We have heard the rival submissions and perused the materials placed on record.
5. In the instant case, it is not in dispute that the case in Cr.No.1515 of 2020 was registered by the Tiruvarur Town Police Station for the offences punishable under Sections 147, 148, 149, 120(b), 364 and 302 of IPC for the occurrence which had taken place on 07.07.2020. But, while reaching subjective satisfaction, the detaining authority in Paragraph-4 of the detention order has stated that the detenu in this case was remanded to judicial custody on 14.06.2020. So, we find force in the submission of the learned counsel for the petitioner in this regard.
6. A perusal of the FIR in Cr.No.1515 of 2020 shows that the case was registered agianst 11 accused and the detention orders have been passed only against A4 & A8 while the other accused also similarly placed, that of the detenu. In Chandra v. The Secretary to Government [2010 (1) MWN (Cr.) 129], it has been held that the Authorities cannot exercise their power arbitrarily for picking and choosing only some of the accused to clamp the order of detention. The 4/10 http://www.judis.nic.in H.C.P.(MD) No.1020 of 2020 relevant paragraph would run thus:
“10. It is the further contention raised on behalf of the petitioners that the equal protection clause shall be attracted against the orders of preventive detention as well. But, this court is of the considered view that the equal protection clause cannot be stretched further to be made applicable for quashing the orders of detention for not assigning reasons in the grounds of detention for the exclusion of others and selection of the detenus alone when the detaining authority choses the persons among the accused in the ground case to be clamped with the order of detention under the preventive detention law. However, we are of the view that there is some force in the contention that the exercise of power by the detaining authority to pass orders of detention against the detenus concerned in these HCPs alone can be challenged as being arbitrary. The arbitrariness pointed out on behalf of the petitioners is that though the detaining authority chose to consider the detenus concerned in these HCPs alone as a class out of the nine accused persons, who were arraigned as such in the first and third adverse cases and the ground case, there was no reasonable basis for such a classification to treat them differently from the rest of the persons. The 5/10 http://www.judis.nic.in H.C.P.(MD) No.1020 of 2020 said argument has been advanced on the ground that no reason has been assigned in the grounds of detention for selecting the above said three persons alone for being termed as goondas. We are of the considered view that it shall not be necessary on the part of the detaining authority to assign any reason in the grounds of detention as to why the other persons are not chosen for being detained under the preventive detention law. Suffice to state the satisfaction that the detenus are to be termed goondas and their presence at large will be detrimental to the maintenance of public order. But the same does not mean that the court while dealing with HCP challenging the order of detention, cannot go into the question of arbitrariness in such classification. When the order of detention is challenged on the ground of arbitrariness based on the classification of the detenus alone from the rest of the accused, it shall be the duty of the detaining authority and the State to establish reasonable basis of such classification to rule out arbitrariness. In this case, though the detaining authority cannot be found fault with for not assigning reason in the grounds of detention for selecting the detenus concerned in these HCPs alone for clamping the orders of detention leaving out the other accused in the ground case and the adverse cases, there is failure on the part of the 6/10 http://www.judis.nic.in H.C.P.(MD) No.1020 of 2020 respondents herein to state the basis of such classification atleast before the court in these HCPs. The failure on the part of the respondents to assign reasons in their counter affidavit in these petitions as to why the detenus alone were selected for detention as goondas leaving out the other six persons will show that the exercise of the statutory power by the detaining authority was arbitrary especially when the left out persons were placed on equal footing with Murugan and Murali, the detenus concerned in H.C.P.Nos.2393 and 2404 of 2009 and found implicated in more number of cases than Rajendran, the detenu concerned in H.C.P.No.2405 of 2009. Hence we are convinced that orders of detention challenged in these HCPs are vitiated on the ground of arbitrariness.” In this case also, no explanation has been given by the respondents for passing the detention order only against some of the accused.
7. In fine, the Habeas Corpus Petition is allowed. The order of detention in C.O.C.No.05/2020, dated 11.10.2020, passed by the second respondent, is set aside. Consequently, the detenu, namely, Thotho Mani @ Manikandan, son of Raja, aged about 30 years, who is now 7/10 http://www.judis.nic.in H.C.P.(MD) No.1020 of 2020 detained at Central Prison, Tiruchirappalli, is directed to be released forthwith unless his presence or custody or detention is required in connection with any other case.
[M.K.K.S.,J.] [G.I.,J.]
15.02.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down
owing to COVID-19 pandemic, a web
copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
am To:
1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate, Thiruvarur District, Thiruvarur.
3.The Superintendent of Prison, Central Prison, Trichy, Trichy District.8/10
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4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
K.KALYANASUNDARAM, J.
and G.ILANGOVAN, J.
am H.C.P.(MD) No.1020 of 2020 9/10 http://www.judis.nic.in H.C.P.(MD) No.1020 of 2020 15.02.2021 10/10 http://www.judis.nic.in