Madras High Court
Sivakami vs Government Of Tamilnadu on 17 October, 2019
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, N.Anand Venkatesh
H.C.P(MD)No.590 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.10.2019
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
H.C.P(MD)No.590 of 2019
Sivakami ...Petitioner
Vs.
1.Government of Tamilnadu
rep. by the Secretary to Government,
Home, Prohibition and Excise Department,
Fort st.George, Chennai-9.
2.The District Collector and District Magistrate
Thanjavur District, Thanjavur.
3.The Superintendent of Prison,
Central Prison,
Trichy. ...Respondents
PRAYER: This Habeas Corpus Petition is filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Habeas Corpus, to
call for the entire records connected with the detention order of the 2 nd
respondent in P.D.No.8/2019 dated 26.05.2019 and quash the same and
direct the respondents to produce the body and person of the petitioner son
namely, Jeevakaruna @ Mohamed Sameer, son of Chandrasekaran aged
about 23 years now confined at Central Prison, Tiruchirappalli and set him
at liberty forthwith.
For Petitioner :Mr.B.Jameelarasu
http://www.judis.nic.in
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H.C.P(MD)No.590 of 2019
For Respondents : Mr.K.Dinesh Babu
Addl. Public Prosecutor
ORDER
S.VAIDYANATHAN, J.
AND N.ANAND VENKATESH, J.
The present Habeas Corpus Petition is directed against the Detention Order passed by second respondent in Detention Order in P.D.No. 08/2019 dated 26.05.2019.
2.The Sponsoring Authority had recommended for the detention of the detenu under Act 14 of 1982 on a solitary case registered against the detenu and the detenu was thereafter arrested in the said case. The Detaining Authority has branded the detenu as a ''Goonda'' and has passed the Detention order, dated 26.05.2019.
3.The learned counsel for the Petitioner submitted that the Detention Order was passed based on a solitary case that has been registered against the detenu in Crime No.122 of 2019, for the offence under Sections 302 IPC altered to 147, 148, 452, 302 and 120(b) IPC. The learned counsel submitted that the Detaining Authority having stated that no bail Petition has been filed by the detenu, proceeded to arrive at the http://www.judis.nic.in 2/8 H.C.P(MD)No.590 of 2019 subjective satisfaction only on the ground that similarly placed accused person has been granted bail by the Sessions Court. The learned counsel further submitted that the subjective satisfaction has been arrived at without any materials and therefore, the Detention Order is vitiated.
4.In support of his contention, the learned counsel for the Petitioner relied upon the case of Rekha .vs. State of Tamil Nadu, through Secretary to Government and another reported in (2011) 5 SCC 244, wherein, it has been held as follows:
12. In Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr., (2011) 5 SCC 244, this Court while dealing with the issue held :
“7.A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused…… http://www.judis.nic.in 3/8 H.C.P(MD)No.590 of 2019
10.In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail……. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
27.In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-
accused whose case stands on the same footing http://www.judis.nic.in 4/8 H.C.P(MD)No.590 of 2019 had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.” (Emphasis added) Thus, it is evident from the aforesaid judgment that it is not the similar case, i.e. involving similar offence. It should be that the co-accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail.
13. So far as the appellant’s son is concerned, he had been arrested for the offence related to FIR No.53 (6) 2011 under Section 302 IPC read with Section 25(1-A) Arms Act dated 14.6.2011. The FIR had been lodged against unknown persons, however, appellant’s son was arrested on 19.6.2011 in respect of the said offence. Subsequently, the detention order dated 30.6.2011 was passed by the District Magistrate under N.S. Act on various grounds, inter-alia, that the appellant’s son was involved in extorting of money and giving shelter to underground members of unlawful association, namely, Kangleipak Communist Party vide notification published in the Gazette of India on 13.11.2009 as his activities were pre- judicial to the security of the State and maintenance of public order.
14.In support of the detention order, a large number of documents had been relied upon and supplied http://www.judis.nic.in 5/8 H.C.P(MD)No.590 of 2019 to the appellant’s son including the copy of FIR No.254 (12) 2010 under Section 17/20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter called UA (P) Act) and copy of FIR No. 210 (5) 2011 under Section 20 of the UA (P) Act and released orders in those cases dated 13.12.2010 and 1.6.2011 respectively had been passed.
15. In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co- accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law.
5.Heard the learned Additional Public Prosecutor appearing on behalf of the respondents.
6.We have carefully gone through the Detention Order. It is seen that the Detaining Authority has discussed about the case that has been registered against the detenu. The Detaining Authority has specifically state http://www.judis.nic.in 6/8 H.C.P(MD)No.590 of 2019 that no bail petition has been filed by the detenu. However, he has arrived at the subjective satisfaction only on the ground that similarly placed accused person was granted the relief of bail by the Sessions Court. The bail order that has been relied upon by the Detaining Authority pertains to the year 2014 and it is seen that the bail order confines itself to the facts of that particular case. The similar case that has been referred in the order of detention is not similar to the facts of the present case. Therefore, the subjective satisfaction arrived at by the Detaining Authority is not supported by any materials and it clearly reflects the non-application of mind. Consequently, the Detention Order stands vitiated.
7.In the result, the Habeas Corpus Petition is allowed and the order of detention in P.D.No.06/2019 dated 26.05.2019 passed by the second respondent is set aside. The detenu, namely, Jeevakaruna @ Mohamed Sameer, son of Chandrasekaran, aged about 23 years, is directed to be released forthwith, unless his detention is not required in connection with any other case.
[S.V.N.,J.] & [N.A.V.,J.]
17.10.2019
Index :Yes/No
Internet :Yes
RR
http://www.judis.nic.in
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H.C.P(MD)No.590 of 2019
S.VAIDYANATHAN, J.
AND
N.ANAND VENKATESH, J.
RR
To
1.The Secretary to Government,
Home, Prohibition and Excise Department, Fort st.George, Chennai-9.
2.The District Collector and District Magistrate Thanjavur District, Thanjavur.
3.The Superintendent of Prison, Central Prison, Trichy.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
ORDER MADE IN H.C.P(MD)No.590 of 2019 17.10.2019 http://www.judis.nic.in 8/8