This court quashed an order of preventive detention because the detaining authority passed it in non-application of mind, relying speculatively on a relative's statement regarding pending bail applications rather than cogent evidence.
The detention order dated 26.08.2015 is set aside and the detenu is directed to be released forthwith.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.04.2016
CORAM:
THE HONOURABLE MR. JUSTICE M.JAICHANDREN AND
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
H.C.P.No.2948 of 2015
H.Jaheer Hussain ... Petitioner
-Vs-
1.State of Tamil Nadu
Rep. by its Secretary to Govt.,
Prohibition and Excise Department
Fort St.George
Chennai 600 009.
2.The Commissioner of Police
Greater Chennai
Vepery,
Chennai 600 007.
3.The Inspector of Police
Law and Order
C1 Flower Bazaar Police Station
Chennai 600 001. ... Respondents
Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, to call for the records relating to the impugned order of detention passed by the 2nd respondent vide in Memo No.794/BCDFGISSSV/2015 dated 26.08.2015 and set aside the same and consequently direct the respondent to produce the petitioner namely H.Jaheer Hussain, S/o Hajibai, Muslim, aged about 32 years, now confined at Central Prison, Puzhal, Chennai before this Court and set him at liberty forthwith.
For Petitioner : Mr.C.Samivel
For Respondents : Mr.A.N.Thambidurai Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.JAICHANDREN, J.]
This Habeas Corpus Petition has been filed by the detenu, namely, Jaheer Hussain, S/o Hajibai, aged about 32 years to issue a Writ of Habeas Corpus, calling for the records relating to the impugned order passed by the 2nd respondent in Memo No.794/BCDFGISSSV/2015 dated 26.08.2015, detaining him under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982), branding him as a “Goonda” as contemplated u/s 2 (f) of the Tamil Nadu Act 14 of 1982, and to quash the same, produce him before this Court and to set him at liberty.
2.Though many grounds have been raised in the petition, Mr.C.Samivel, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.
materials are available before the Detaining Authority to conclude / to apprehend that the detenu is likely to get bail in the ground case. The particulars of the similar case referred to and relied upon by the detaining authority where bail is granted, is not of the same offences so as to compare that case with that of the detenu. With regard to the 3rd and 4th adverse cases it is stated that relatives are taking steps to file bail application. Therefore, there is no imminent possibility of the detenu coming out on bail on the basis of the bail granted in the similar case. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind and the subjective satisfaction arrived at by the Detaining Authority that there is real possibility of the detenu coming out on bail is a mere ipse dixit without any cogent materials.
5.We have heard the learned counsel for both sides with regard to the facts and citation.
7.It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal.
8.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds.
Fort Saint George, Chennai - 9.
H.C.P.No.2948 of 2015
LRS(CO)
CA(30/05/2016)
2 issues framed by the court
Whether the detention order impugned can be held to have been passed in total non-application of mind by the detaining authority.
Whether the subjective satisfaction arrived at by the detaining authority regarding the likelihood of the detenu coming out on bail was based on cogent materials.
Colour shows how this judgement treated each authority
Article 21 of the Constitution of IndiaReferred¶24
1 provisions across 1 enactments
H.Jaheer Hussain
State of Tamil Nadu
Commissioner of Police
M.Jaichandren
S.Nagamuthu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
