Madras High Court
V.Marri vs Government Of Tamil Nadu on 18 November, 2022
Author: N. Anand Venkatesh
Bench: M.S.Ramesh, N.Anand Venkatesh
H.C.P(MD)No.1791 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.11.2022
CORAM
THE HON'BLE MR.JUSTICE M.S.RAMESH
AND
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
H.C.P.(MD)No.1791 of 2022
V.Marri .. Petitioner / wife of the detenu
Vs
1. Government of Tamil Nadu,
Rep. by the Principal Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai-600 009.
2. The District Collector and District Magistrate,
Tenkasi District,
Tenkasi.
3. The Superintendent,
Central Prison,
Palayamkottai,
Tirunelveli. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, calling for the entire records relating to the
detention order passed by the second Respondent in M.H.S.Confdl.No.
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https://www.mhc.tn.gov.in/judis
H.C.P(MD)No.1791 of 2022
45/2022 dated 07.04.2022 and to quash the same and direct the Respondents
to produce the body or person of the detenu by name, Veerasamy, son of
Appavu, aged about 49 years, now detained at the Central Prison,
Palayamkottai, before this Court and set him at liberty.
For Petitioner : Mr.K.Dinesh
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
N. ANAND VENKATESH, J.
The petitioner is the wife of the detenu viz., Veerasamy, son of Appavu, aged about 49 years. The detenu has been detained by the second respondent by his order in M.H.S.Confdl.No.45/2022 dated 07.04.2022 holding him to be a "Sexual Offender", as contemplated under Section 2(ggg) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.
2. Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel for the petitioner focussed his argument on the ground, wherein, the detaining authority has taken into consideration the Page 2 of 8 https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022 fact that the accused, who are similarly placed, have been granted bail by the competent Court.
3. The learned counsel for the petitioner submitted that the detaining authority, without the availability of materials, cannot ipso facto satisfy himself regarding the imminent possibility of the detenu coming out on bail, merely on the ground that the accused, who are similarly placed have been granted bail.
4. The learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in Rekha v. State of Tamil Nadu [(2011) 5 SCC 244] to substantiate his submission.
5. The learned Additional Public Prosecutor, on instructions, submitted that the detenu was arrested on 24.03.2022. Thereafter, the investigation was completed and final report was filed on 22.04.2022 and the case is now pending in Spl.C.C.No.43/2022 on the file of the Special Court for POCSO Act cases, Tirunelveli. It was further submitted that already LW1 to LW15 were examined. The case is now posted on Page 3 of 8 https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022 23.11.2022 for the examination of LW16 to LW22.
6. The main ground that was urged by the learned counsel for the petitioner is that the detaining authority after taking note of the fact that the bail petition that was filed by the detenu was dismissed, came to a conclusion that there is a likelihood of the detenu coming out on bail by relying upon the bail order passed in Cr.M.P.No.762/2021 dated 27.05.2021. According to the learned counsel appearing for the petitioner, the similar case that was taken into consideration by the detaining authority to come to a conclusion that there is a likelihood of the detenu being released on bail, is not a similar case since bail was granted in that case under Section 167(2) Cr.P.C. Hence, the detention order suffers from non application of mind.
7. We have carefully considered the submissions made by the learned counsel for the petitioner as well as the learned Additional Public Prosecutor appearing on behalf of the respondents.
8. We have carefully gone through the detention order as well as the Page 4 of 8 https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022 bail order passed in Cr.M.P.No.762/2021 dated 27.05.2021. It is seen that in that case the accused therein was granted statutory bail on the ground that final report was not filed within the time stipulated and hence, the Court exercised its power under Section 167(2) Cr.P.C. By no stretch, the said order cannot be considered to be a similar case. Hence, we find that the subjective satisfaction arrived at by the detaining authority with regard to the likelihood of the detenu coming out on bail suffers from non-application of mind on the part of the detaining authority.
9. The issue that has been raised by the learned counsel for the petitioner is no longer res integra and it is covered by the judgment that has been cited by the learned counsel for the petitioner, which has been referred supra.
10. The Hon'ble Supreme Court has categorically held in the above judgment that the accused persons, who are similarly placed being granted bail by the same Court or by a higher Court, cannot be a ground for the detaining authority to come to such a subjective satisfaction without there being any materials to substantiate the same. This by itself reflects non Page 5 of 8 https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022 application of mind on the part of the detaining authority. Therefore, the order of detention is liable to be interfered with.
11. In the result, the Habeas Corpus Petition is allowed and the order of detention in M.H.S.Confdl.No.45/2022 dated 07.04.2022 passed by the second respondent is set aside. The detenu, viz., Veerasamy, son of Appavu, aged about 49 years, is directed to be released forthwith unless his detention is required in connection with any other case.
[M.S.R.,J.] & [N.A.V.,J.]
18.11.2022
Index : Yes/No
Internet : Yes
PJL
To
1. Government of Tamil Nadu,
Rep. by the Principal Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009.
2. The District Collector and District Magistrate, Tenkasi District, Tenkasi.
Page 6 of 8 https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022
3. The Superintendent, Central Prison, Palayamkottai, Tirunelveli.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Page 7 of 8 https://www.mhc.tn.gov.in/judis H.C.P(MD)No.1791 of 2022 M.S.RAMESH,J.
and N. ANAND VENKATESH,J.
PJL H.C.P.(MD)No.1791 of 2022 18.11.2022 Page 8 of 8 https://www.mhc.tn.gov.in/judis