Madras High Court
Kumari vs The Secretary To Government on 31 July, 2023
Author: M.Sundar
Bench: M.Sundar
H.C.P.No.478 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.07.2023
Coram
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
H.C.P.No.478 of 2023
Kumari .. Petitioner
vs
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Fort St.George, Chennai - 9
2. The District Collector and District Magistrate,
Chengalpattu District, Chengalpattu.
3. The Superintendent of Prison,
Central Prison, Puzhal, Chennai.
4.The Superintendent of Police,
Villupuram, Villupuram District.
5.State rep. By its
The Inspector of Police,
PEW Maduranthagam Police Station,
Chengalpattu District. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of habeas corpus to call for the entire
records relating to the petitioner's husband detention under Tamil
Nadu Act 14 of 1982 vide detention order dated 27.02.2023 on the
file of the second respondent herein made in proceedings Memo
CPT No.17/2023 quash the same as illegal and consequently direct
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H.C.P.No.478 of 2023
the respondents herein to produce the petitioner's husband namely
Murugan @ Milaga Murugan, S/o.Vinayagam, aged 45 years before
this Court and set the petitioner's husband at liberty from
detention, now the petitioner's husband detained at Central Prison,
Puzhal, Chennai.
For Petitioner : Mr.R.Sasikumar
For Respondents : Mr.E.Raj Thilak,
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.] When the captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity] was listed in the Admission Board on 29.03.2023, this Court made the following order:
'Captioned Habeas Corpus Petition has been filed in this Court on 23.03.2023 inter alia assailing a detention order dated 27.02.2023 bearing reference CPT No.17/2023 made by 'second respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. To be noted, fifth respondent is the Sponsoring Authority.
2. Wife of the detenu is the petitioner.
3. Learned counsel for petitioner submits that ground case qua the detenu is for alleged offences under Sections 4(1)(aaa), 4(1)(b), 4(1)(g), 4(1)(h), 4(1-A) of the Tamil Nadu Prohibition Act, 1937 read with Rules 7 and 11 of the Tamil Nadu Rectified Spirit Rules, 2000 (Transporting) and Sections 468, 471 and 420 of the 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] in https://www.mhc.tn.gov.in/judis 2/9 H.C.P.No.478 of 2023 Crime No.118 of 2023 on the file of Madhuranthagam Prohibition Enforcement Wing.
4. The aforementioned detention order has been made on the premise that the detenu is a 'Bootlegger' under Section 2(b) of 'The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug- offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act No.14 of 1982)' [hereinafter 'Act 14 of 1982' for the sake of convenience and clarity].
5. The detention order has been assailed inter alia on the ground that some of the pages in the booklet furnished to the detenu are illegible which prevented the detenu from making an effective representation.
6. Prima facie case made out for admission. Admit. Issue Rule nisi returnable by four weeks.
7. Mr.R.Muniyapparaj, learned Additional Public Prosecutor, State of Tamil Nadu accepts notice for all respondents. List the captioned Habeas Corpus Petition accordingly.'
2. The aforementioned order made in the 29.03.2023 Admission listing shall be read as an integral part and parcel of this order which means that the short forms, short references and abbreviations used in the order in the Admission listing shall be used in the instant order also.
3. There is no adverse case. The ground case which is the sole substratum of the impugned preventive detention order is Crime No.118 of 2023 on the file of Madhuranthagam Prohibition Enforcement Wing for alleged offences under Sections 4(1)(aaa), 4(1)(b), 4(1)(g), 4(1)(h), 4(1-A) of the Tamil Nadu Prohibition Act, https://www.mhc.tn.gov.in/judis 3/9 H.C.P.No.478 of 2023 1937 read with Rules 7 and 11 of the Tamil Nadu Rectified Spirit Rules, 2000 (Transporting) and Sections 468, 471 and 420 of IPC. Owing to the nature of the challenge to the impugned preventive detention order, it is not necessary to delve into the factual matrix or be detained further by facts.
4. Mr.R.Sasikumar, learned counsel on record for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for all respondents are before us.
5. As would be evident from the Admission Board order dated 29.03.2023, at the time of admission, learned counsel for HCP petitioner projected the point that some of the pages in the grounds booklet furnished to the detenu are illegible, however, in the Final Hearing Board today, learned counsel for petitioner predicated his campaign against the impugned preventive detention order on one point which turns on subjective satisfaction arrived at by the Detaining Authority qua imminent possibility of the detenu being enlarged on bail. Elaborating on this submission, learned counsel drew our attention to a portion of paragraph 5 of the grounds of impugned preventive detention order which reads as follows:
https://www.mhc.tn.gov.in/judis 4/9 H.C.P.No.478 of 2023 '5......In Prohibition Enforcement Wing, Mamallapuram Cr.No.1688/2020 u/s 4(1)(aaa), 4(1- A) Tamil Nadu Prohibition Act r/w 6 & 11 of Tamil Nadu Rectified Spirit Rules 2000 (Transporting) against the similar accused Raji, S/o.Murugan was released on bail through Principal District and Sessions Court, Chengalpattu in Crl.M.P. No.2698/2020 on 25.08.2020;
Hence I infer that there is a real possibility of his coming out on bail if he applied bail petition in the above ground case since in similar cases, bails are granted by the court after lapse of time.....'
6. Learned counsel submitted that aforementioned subjective satisfaction has been arrived at by the Detaining Authority by relying on Raji's case bail order being bail order dated 25.08.2020 in Crl.M.P. No.2698 of 2020 on the file of Principal Sessions Judge, Kancheepuram at Chengalpattu. Learned counsel adverting to the bail order in Raji's case submitted that the bail order was made in view of directions of Hon'ble Supreme Court in Suo Motu W.P. (Civil) No.1 of 2020 owing to the 'Corona virus Pandemic and consequent lock down' which shall hereinafter be referred to as 'Covid-19 situation' which cannot be made applicable to the ground case qua bail as on the date of impugned preventive detention https://www.mhc.tn.gov.in/judis 5/9 H.C.P.No.478 of 2023 order Covid 19 situation had paled into past.
7. In response to the above argument, learned Prosecutor submitted to the contrary and said that the two orders are broadly comparable.
8. We had the benefit of perusing the bail order in Raji's case and we find that submission made by learned counsel for petitioner is acceptable. The reason is, a portion of the bail order of learned Sessions Judge in Raji's case reads as follows:
'.....In furtherance to the directions of the Hon'ble Chief Justice at High Court, Madras vide letter dated 21.03.2020 and pursuant to directions of the Hon'ble Supreme Court in Suo Motu W.P (Civil) No.1 of 2020 In Re: Contagion of Covid 19 virus in prisons and also in view of the directions given by the High Power Committee appointed by the Hon'ble Supreme Court of India, New Delhi and also considering the urgent need and necessity to ensure social distancing and thereby reducing the scope of infection, it is essential that the prisons are decongested as much as possible. Keeping this in view and also taking note of the duration of custody, facts and circumstances of the case the petitioner/accused is ordered to be released on bail forthwith...' https://www.mhc.tn.gov.in/judis 6/9 H.C.P.No.478 of 2023
9. It is clear that Raji's case bail order is one where bail has been granted primarily owing to the then obtaining Covid-19 situation and orders of Hon'ble Supreme Court in this regard. Therefore, taking Raji's case bail order as a benchmark for arriving at subjective satisfaction qua imminent possibility of detenu being enlarged on bail is clearly a flawed exercise. Owing to this, we have no hesitation in saying that the impugned preventive detention order deserves to be dislodged.
10. Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 27.02.2023 bearing reference C.P.T.No.17 of 2023 made by the second respondent is set aside and the detenu Thiru.Murugan @ Milaga Murugan, aged 45 years, son of Thiru.Vinayagam, is directed to be set at liberty forthwith, if not required in connection with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.) 31.07.2023 Index : Yes/No Neutral Citation : Yes/No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai. https://www.mhc.tn.gov.in/judis 7/9 H.C.P.No.478 of 2023 To
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai - 9
2. The District Collector and District Magistrate, Chengalpattu District, Chengalpattu.
3. The Superintendent of Prison, Central Prison, Puzhal, Chennai.
4.The Superintendent of Police, Villupuram, Villupuram District.
5.The Inspector of Police, PEW Maduranthagam Police Station, Chengalpattu District.
6.The Public Prosecutor, High Court, Madras.
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