Madras High Court
U.Sara Banu vs The Secretary To Government on 2 July, 2018
Author: C.T.Selvam
Bench: C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.07.2018
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM
AND
THE HONOURABLE MR.JUSTICE A.M.BASHEER AHAMED
H.C.P(MD)No.637 of 2018
U.Sara Banu : Petitioner
Vs.
1.The Secretary to Government,
Public (Law and Order-F) Department,
Fort St. George, Chennai-9.
2.The District Collector and District Magistrate,
Ramanathapuram District, Ramnad.
3.The Secretary Government of India,
Ministry of Home Affairs,
Department of Internal Security,
North Block, New Delhi 110 001.
4.The Superintendent of Prison,
Central Prison, Madurai. : Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Habeas Corpus, to call for the entire records connected
with the detention order passed in Cr.M.P.No.03/NSA/2018, dated 12.04.2018,
on the file of the 2nd respondent herein and quash the same and direct the
respondents to produce the detenu, by name, Mubaris Ahamed, aged about 21
years, S/o.Usen Mubarak, now detained in Madurai Central Prison before this
Court and set him at liberty forthwith.
!For Petitioner : Mr.R.Babu Jaganath
^For RR1, 2 and 4 : Mr.K.Chellapandian
Additional Advocate General
Assisted by Mr.V.Neelakandan
Additional Public Prosecutor
For RR3 : Mr.K.Prabhu
Central Government Standing Counsel
:ORDER
[Order of the Court was made by C.T.SELVAM, J.] The petitioner is the mother of the detenu - Mubaris Ahamed, Usen Mubarak, aged about 21 years. The detenu has been detained by the second respondent by his order in Cr.M.P.No.03/NSA/2018, dated 12.04.2018, invoking the provisions of the National Security Act, 1980. The said order is under challenge in this Habeas Corpus Petition.
2. We have heard Mr.R.Babu Jaganath, learned counsel appearing for the petitioner, Mr.K.Chellapandian, learned Additional Advocate General, Assisted by Mr.V.Neelakandan, learned Additional Public Prosecutor for the respondents 1, 2 and 4 and Mr.K.Prabhu, learned Central Government Standing Counsel for the third respondent. We have also perused the records carefully.
3. Though several grounds have been raised assailing the impugned order of detention, the learned counsel appearing for the petitioner would mainly focus his argument that the Detaining Authority has recorded his subjective satisfaction that the ground case had been registered against the detenu by Keelakarai Police Station in Crime No.46 of 2018, for the offences under Sections 153(A), 120-B of the Indian Penal Code, r/w Sections 15(c), 17, 18, 19, 20 of the Unlawful Activities (Prevention) Act 1967, r/w Section 25(1)(a) of the Indian Arms Act 1959. In the said case, the detenu filed a bail application, which was dismissed by the Sessions Court, Ramanathapuram, on 06.04.2018. However, the Detaining Authority has stated that in a similar case registered by Kanyakumari District, Ethamozhi Police Station in Crime No.215 of 2014, for the offences under Sections 153(A), 295(A) of the Indian Penal Code, the accused - Elankaviyarasan was granted bail. The comparison of those cases, according to the learned counsel for the petitioner, as similar cases for the expression of the subjective satisfaction is improper and the subjective satisfaction expressed by the Detaining Authority can be said to be the result of non-application of mind to the difference between the two cases.
4. We find force in the submission of the learned counsel for the petitioner that the subjective satisfaction of the detaining authority has been wrongly arrived at, as the ground case registered against the detenu is triable by Court of Sessions, whereas, the case informed to be similar is triable by a Magistrate. Further, in the ground case, Section 167(ii) of Cr.P.C., providing for mandatory release on bail, comes into play only on expiry of 180 days of arrest, whereas in the case informed to be similar, the same comes into play after 90 days of arrest. Hence, as righlty contended by the learned counsel for the petitioner, the comparison was not proper and it reveals non-application of mind on the part of the Detaining Authority. The subjective satisfaction expressed by the Detaining Authority regarding the imminent possibility of the detenu coming out on bail in the ground case is based on inappropriate and insufficient materials. Hence, the order of detention is vitiated and liable to be set aside.
5. In the result, the Detention Order, passed by the second respondent, in his proceedings in Cr.M.P.No.03/NSA/2018, dated 12.04.2018, is quashed. The detenu, namely, Mubaris Ahamed, Usen Mubarak, is ordered to be set at liberty forthwith, if his detention is not required in connection with any other case.
6. In the upshot, we allow the Habeas Corpus Petition.
To
1.The Secretary to Government, Public (Law and Order-F) Department, Fort St. George, Chennai-9.
2.The District Collector and District Magistrate, Ramanathapuram District, Ramnad.
3.The Secretary Government of India, Ministry of Home Affairs, Department of Internal Security, North Block, New Delhi 110 001.
4.The Superintendent of Prison, Central Prison, Madurai.
5.The Joint Secretary to Government, Public (Law & Order), Fort Saint George, Chennai-9.
6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.