Madras High Court
Selvakumar vs The Additional Chief Secretary To ... on 4 October, 2023
Author: M.Sundar
Bench: M.Sundar
2023/MHC/4619
HCP(MD)No.584 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
H.C.P.(MD)No.584 of 2023
Selvakumar : Petitioner
Vs.
1.The Additional Chief Secretary to Government,
State of Tamil Nadu,
Home Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The District Collector and District Magistrate,
Office of the District Collector and District Magistrate,
Tenkasi District,
Tenkasi.
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https://www.mhc.tn.gov.in/judis
HCP(MD)No.584 of 2023
3.The Superintendent of Prison,
Palayamkottai Central Prison,
Palayamkottai,
Tirunelveli District. : Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India
to issue a writ of Habeas Corpus, calling for the entire records
connected with the detention order of the second respondent in
Detention Order M.H.S.Confdl No.23/2023 dated 11.04.2023 and
quash the same and to direct the respondents to produce the body or
person of the detenu by name Selvakumar son of Murugan alias
Pavadaimurugan, aged about 19 years, now confining as “Goonda” at
Palayamkottai Central Prison before this Court and set him at liberty
forthwith.
For Petitioner : Mr.R.Prakash
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
*********** [Order of the Court was made by M.SUNDAR, J.] This 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed by the detenu assailing a 'preventive detention order dated Page 2 of 11 https://www.mhc.tn.gov.in/judis HCP(MD)No.584 of 2023 11.04.2023 bearing reference M.H.S.Confdl No.23/2023' [hereinafter 'impugned preventive detention order' for the sake of brevity and convenience] made by the second respondent District Collector, who shall hereinafter be referred to as 'detaining authority' for the sake of convenience and clarity. To be noted, sponsoring authority has not been arrayed as a respondent but we find that Station House Officer of Sivagiri Police Station is the sponsoring authority [hereinafter 'Sponsoring Authority' for the sake of convenience and clarity].
2.Impugned detention order has been made under '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] branding the detenu as a 'Goonda' within the meaning of Section 2(f) of Act 14 of 1982.
3.There is no adverse case. The impugned preventive detention order has been passed based on a solitary case in Crime No.74 of 2023 on the file of Sivagiri Police Station for the alleged offences Page 3 of 11 https://www.mhc.tn.gov.in/judis HCP(MD)No.584 of 2023 under Sections 147, 341 and 302 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] which was subsequently altered into one under Sections 147, 148, 341, 302 and 506(ii) of IPC. Considering the nature of the challenge to the impugned detention order, it is not necessary to delve into the factual matrix of the case.
4.When the captioned HCP was listed in the admission board, a Cordinate Hon'ble Division Bench issued Rule Nisi on 10.05.2023.
5.Today, Mr.R.Prakash, learned Counsel on record for petitioner and Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor for all the respondents are before us.
6.In the support affidavit qua captioned HCP several grounds have been raised, but learned Counsel for petitioner predicated his campaign against the impugned Preventive Detention Order on one point and that point turns on assessment of subjective satisfaction arrived at by the detaining authority qua imminent possibility of the detenu being enlarged on bail is impaired. Elaborating his submission Page 4 of 11 https://www.mhc.tn.gov.in/judis HCP(MD)No.584 of 2023 in this direction, learned Counsel drew our attention to a portion of paragraph No.5 of grounds of impugned preventive detention order which reads as follows:
'5. ....I am also aware that in a similar case bail has been granted to Mariappan in CRMP No. 1985/2020 on 13.03.2020 by the Sessions Court, Tirunelveli. I therefore infer that there is real possibility of Thiru.Selvakumar coming out on bail in Sivagiri Police Station Crime Number 74/2023: since bails are granted by the appropriate courts in such cases. ....'
7.Adverting to the aforementioned portion of paragraph No.5 of grounds of impugned preventive detention order, learned counsel for petitioner submitted that the detaining authority has relied on 'bail order dated 13.03.2020 made in Cr.M.P.No.1985 of 2020, on the file of Sessions Court, Tirunelveli' [hereinafter Mariappan's bail order for the sake of brevity].
8.Mariappan's bail order has been furnished to the detenu as part of the grounds booklet and adverting to Mariappan's bail order, learned Counsel for petitioner submitted that in Mariappan's bail Page 5 of 11 https://www.mhc.tn.gov.in/judis HCP(MD)No.584 of 2023 order, three determinants have weighed in the mind of the bail Court and they are:
a) Mariappan remained incarcerated for 75 days.
b) Investigation is almost complete.
c) Co-accused in the case has already been granted bail by the same Court.
9.Learned Counsel drew our attention to the relevant portion of Mariappan's bail order which reads as follows:
'5. .... Petitioner is undergoing incarceration for the past 75 days. Investigation is almost completed. Co-accused in this case has already been granted bail by this Court. ....'
10.Learned Counsel for petitioner submitted that in the case on hand ie., the ground case which is a solitary case is the sole substratum of the impugned preventive detention order and all three determinants as in Mariappan's case are absent as the impugned preventive detention order has been made on the 28th day of arrest, investigation was not complete on the date of the impugned preventive detention order and on the date of the impugned Page 6 of 11 https://www.mhc.tn.gov.in/judis HCP(MD)No.584 of 2023 preventive detention order, all the co-accused were in prison and none of them had been enlarged on bail.
11.In response to the aforementioned arguments, learned State Additional Public Prosecutor submitted to the contrary by saying that the alleged offences in Mariappan's case are those offences punishable under Sections 147, 148, 294(b), 302, 120(B) & 506(ii) of IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998 and therefore, the ground case and Mariappan's case are broadly comparable.
12.We carefully considered the rival submissions.
13.This Court has repeatedly held that when it comes to subjective satisfaction of the detaining authority as regards imminent possibility of detenu being enlarged on bail, it is not just comparison of the alleged offence but it is also comparison of determinants/parameters for grant of bail which is a discretionary relief in law.
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14.From the narrative thus far, it will be clear that three distinct and clear determinants / parameters have weighed in the mind of the trial Court and all three distinct / clear determinants are completely different qua the ground case. Therefore, we have no hesitation in accepting the argument of the learned Counsel for the petitioner that subjective satisfaction arrived at by the detaining authority qua imminent possibility of the detenu being enlarged on bail is impaired.
15.The sum sequitur of narrative and dispositive reasoning thus far is, the subjective satisfaction arrived at by the detaining authority qua imminent possibility of the detenu being enlarged on bail is impaired and the impugned preventive detention order is vitiated and becomes liable for being dislodged in this habeas legal drill. Therefore, the case on hand is one more in this long line of authorities where the impugned preventive detention orders have been interfered with and dislodged in a habeas legal drill when the subjective satisfaction arrived at by the detaining authority qua imminent possibility of the detenu being enlarged on bail is impaired. Page 8 of 11 https://www.mhc.tn.gov.in/judis HCP(MD)No.584 of 2023
16.Ergo, the sequitur is, captioned HCP is allowed. Impugned preventive detention order dated 11.04.2023 bearing reference M.H.S.Confdl No.23/2023 made by the second respondent is set aside and the detenu Thiru.Selvakumar, son of Thiru.Murugan alias Pavadaimurugan, aged 19 years, 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.]
04.10.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation : Yes/No
MR
P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Palayamkottai. Page 9 of 11 https://www.mhc.tn.gov.in/judis HCP(MD)No.584 of 2023 To
1.The Additional Chief Secretary to Government, State of Tamil Nadu, Home Prohibition and Excise Department, Secretariat, Chennai – 600 009.
2.The District Collector and District Magistrate, Office of the District Collector and District Magistrate, Tenkasi District, Tenkasi.
3.The Superintendent of Prison, Palayamkottai Central Prison, Palayamkottai, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Page 10 of 11 https://www.mhc.tn.gov.in/judis HCP(MD)No.584 of 2023 M.SUNDAR, J.
and R.SAKTHIVEL, J.
MR ORDER MADE IN H.C.P.(MD)No.584 of 2023 04.10.2023 Page 11 of 11 https://www.mhc.tn.gov.in/judis