Madras High Court
Velayutham vs The Secretary To Government on 18 January, 2016
Bench: P.R.Shivakumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.01.2016
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
H.C.P.(MD)No.1754 of 2015
Velayutham : Petitioner
Vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Tirunelveli District,
Tirunelveli.
3.The Superintendent of Prison,
Palayamkottai Central Prison,
Tirunelveli District. : Respondents
PRAYER: Petition is filed under Article 226 of the Constitution of India
praying for the issue of a Writ of Habeas Corpus to call for the entire
records, connected with the detention order of the second respondent in
M.H.S.Confdl.No.143/2015, dated 09.12.2015 and quash the same and direct the
respondents to produce the detenu namely Velayutham, son of Lakshmanan, aged
about 24 years detained in Palayamkottai Central Prison, before this Court
and set him at liberty forthwith.
!For Petitioner : Mr.R.Alagumani
^For Respondents : Mr.A.Ramar,
Additional Public Prosecutor
:ORDER
[Order of the Court was made by P.R.SHIVAKUMAR, J] The petitioner is the detenu - Velayutham, S/o.Lakshmanan, aged about 24 years. He has been detained by the second respondent by his order in M.H.S.Confdl.No.143/2015, dated 09.12.2015, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No.414 of 2015 on the file of Manur Police Station registered for alleged offences punishable under Sections 341, 294(b), 387, 307 and 506(ii) of the Indian Penal Code read with 25(1-A) of Arms Act and the following two adverse cases:
(i) Crime No.144 of 2015 registered on the file of Seevalaperi Police Station for offences punishable under Sections 341, 294(b), 387 and 506(ii) of the Indian Penal Code; and
(ii) Crime No.155 of 2015 registered on the file of Sivanthipatti Police Station for offences punishable under Sections 294(b), 341, 387 and 506(ii) of the Indian Penal Code.
2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of the "Goonda" and that his presence at large would be prejudicial to the maintenance of public order and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case and the adverse cases, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition.
3. Though the detention order is sought to be assailed on several grounds, the learned counsel for the petitioner mainly relies on the contention that in the adverse cases, no bail applications were filed, but still the detaining authority expressed subjective satisfaction that there was a real possibility of the detenu coming out on bail in the adverse cases.
4. In elaboration of the said contention, the learned counsel for the petitioner submits that the subjective satisfaction regarding the real possibility of the detenu coming out on bail in a case, wherein no bail application is pending, cannot be based on any other case in respect of other persons and that the very fact that no bail application is pending will negative the imminent possibility of the detenu coming out on bail, subject to an exception that a co-accused in the very same case placed under similar circumstances has been released on bail.
5. In support of his contention, the learned counsel for the petitioner relies on the Judgment of a Larger Bench of the Hon'ble Supreme Court consisting of three Hon'ble Judges in Rekha Vs. State of Tamil Nadu, reported in (2011) 5 SCC 244, followed by and clarified in Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181, which has also been followed by this Court in an unreported decision in H.C.P(MD).No.1567 of 2015 [Sri Devi Vs. Secretary to Government of Tamil Nadu, Home Prohibition and Excise Department and others], vide order dated 14.12.2015.
6. The submissions made by the learned Additional Public Prosecutor in reply to the above said contentions raised by the learned counsel for the petitioner are also heard.
7. In paragraph No.6 of the grounds of detention, the Detaining Authority, expressing his subjective satisfaction regarding the possibility of the detenu coming out on bail, made the following observation:
"6. I am also aware that the sponsoring Police officer has stated that Thirumathi. Janaki wife of Thiru. Velayutham is taking action to take out her husband on bail by filing a bail application for Seevalaperi Police Station Crime number 144/2015 and Sivanthipatti Police Station Crime number 155/2015. I am aware that Thiru. Velayutham has not filed any bail application so far in Seevalaperi Police Station Crime number 144/2015 and Sivanthipatti Police Station Crime number 155/2015. I am also aware that there is real possibility of his coming out on bail in future by filing bail application for the above cases since in similar cases bails are granted by the appropriate courts. I am also aware that in a similar case bail has been granted to Ramar alias Karadi Ramar in CRMP No: 3795/2014 Dated:17.07.2014 by the Judicial Magistrate No-V, Tirunelveli. I therefore infer that there is real possibility of his (Thiru. Velayutham) coming out on bail in Seevalaperi Police Station Crime number 144/2015 and Sivanthipatti Police Station Crime number 155/2015; since bails are granted by the appropriate courts in such cases. I am aware that Thiru. Velayutham is in remand in Manur Police Station Crime Number 414/2015 and in this case he filed a bail petition before the Sessions court, Tirunelveli, in CRMP.No.7354/2015 on 07.12.2015 and the bail petition is yet to be disposed. I am also aware that he is very likely to come out on bail in that case. I am also aware that in a similar case bail has been granted to Ramanathan in CRMP No. 6917/2015 Dated: 24.11.2015 by the Principal Sessions Court, Tirunelveli. I therefore infer that there is very likely of his (Thiru. Velayutham) coming out on bail in Manur Police Station Crime Number 414/2015 since bails are granted by the appropriate courts in such cases."
8. The Detaining Authority referred to the fact that no bail applications were filed in the adverse cases, namely, Crime No.144 of 2015 registered on the file of Seevalaperi Police Station and Crime No.155 of 2015 registered on the file of Sivanthipatti Police Station. However, the Detaining Authority proceeded further to express a subjective satisfaction that there was real possibility of the detenu coming out on bail by filing a bail application, since in a similar case, not being a case of a co-accused in the very same case, another person was granted bail by the learned Judicial Magistrate No.V, Tirunelveli in CRMP.No.3795 of 2014 on 17.07.2014. Such a comparison of bail order passed in another case, when no bail application is pending, to express subjective satisfaction of the real possibility of the detenu coming out on bail is against the dictum laid down by a Larger Bench of the Supreme Court in Rekha Vs. State of Tamil Nadu, reported in (2011) 5 SCC 244, followed by a Division Bench of the Hon'ble Supreme Court in Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181 and by this Court in an unreported decision in H.C.P(MD).No.1567 of 2015 [Sri Devi Vs. Secretary to Government of Tamil Nadu, Home Prohibition and Excise Department and others], vide order dated 14.12.2015. Hence, as rightly contended by the learned counsel for the petitioner, the Order of Detention is vitiated on the said ground alone.
9. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 09.12.2015, made in M.H.S.Confdl.No.143/2015, by the second respondent, the District Collector and District Magistrate, Office of the District Collector and District Magistrate, Tirunelveli District, Tirunelveli and directs the release of the detenu by name Velayutham, S/o.Lakshmanan, aged about 24 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.
To
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Tirunelveli District, Tirunelveli.
3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..