Allowed

Nathiya v. the Secretary to Government

Madras HC19 Mar 2024HCP/319/2024

Case brief

AI extract

What is this about?

Wife challenged a Goonda preventive detention order on the ground that the Detaining Authority wrongly assumed likelihood of bail by relying on a dissimilar bail order involving an accused with one prior case, unlike the detenu who had four adverse cases. The Court found non-application of mind, followed the Supreme Court's decision in Rekha, quashed the detention order and set the detenu at liber

What did the court decide?

Detention order dated 22.09.2023 in Memo No.416/BCDFGISSSV/2023 quashed; detenu directed to be set at liberty forthwith unless required in any other case.

Nathiya Vs the Secretary to Government — Bail and Remand | Madras HC (2024)

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H.C.P.No.319 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 19.03.2024

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CORAM :

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THE HONOURABLE MR. JUSTICE M.S. RAMESH

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AND

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THE HONOURABLE MR. JUSTICE SUNDER MOHAN

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H.C.P.No.319 of 2024

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Nathiya

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... Petitioner / wife of the detenue

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Vs.

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1.The Secretary to Government, Home, Prohibition Excise Department, Fort St.George, Chennai-600 009.

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2.The Commissioner of Police, Greater Chennai.

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3.The Superintendent of Police, Central Prison, Puzhal, Chennai.

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4.The Inspector of Police, H-1, Washermenpet Police Station, Chennai.

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... Respondents

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Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by

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https://www.mhc.tn.gov.in/judis Page 1 of 8

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H.C.P.No.319 of 2024

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the second respondent dated 22.09.2023 in No.416/BCDFGISSSV/2023 against the petitioner's husband, Elango, Male, aged about 25 years, son of Appanraj, who is confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenue before the Court and set him at liberty.

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For Petitioner : Mr.M.Illiyas For Respondents : Mr.E. Raj Thilak, Additional Public Prosecutor assisted by Mr.C. Aravind

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ORDER

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M.S.RAMESH, J. and SUNDER MOHAN, J.

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The petitioner, who is the wife of the detenu viz., Elango, aged about 25 years, son of Appanraj, confined at Central Prison, Puzhal, Chennai , has come forward with this petition challenging the detention order passed by the second respondent dated 22.09.2023 slapped on her husband, branding him as "Goonda" under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil Nadu Act 14 of 1982].

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https://www.mhc.tn.gov.in/judis

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H.C.P.No.319 of 2024

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2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.

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3. Though several grounds are raised in the petition, the learned counsel for the petitioner pointed out that the Detaining Authority has not applied its mind while expressing its subjective satisfaction that the detenu is also likely to be released on bail. It is his submission that the case relied upon by the Detaining Authority is not similar to the present case, as the bail was granted in favour of the accused therein by recording the fact that the there was only one previous case as against the accused therein.

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4. On a perusal of the Booklet, this Court finds that the bail order relied upon by the Detaining Authority in Crl.M.P.No.19198 of 2021, is not similar to the case on hand, since the accused therein was granted bail after recording the fact that only one previous case was reported against the accused therein. However, it is admitted that there are four adverse cases as against the detenu herein. Considering the nature of the bail order in the similar case relied upon by the Detaining Authority and

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the case on hand, this Court finds that the subjective satisfaction of the https://www.mhc.tn.gov.in/judis Page 3 of 8

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H.C.P.No.319 of 2024

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Detaining Authority that the detenu is also likely to be released on bail, suffers from non-application of mind.

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5. The Hon'ble Supreme Court, in the case of 'Rekha Vs. State of Tamil Nadu through Secretary to Government and Another' reported in '2011 [5] SCC 244', has dealt with a situation where the Detention Order is passed without an application of mind. In case, any of the reasons stated in the order of detention is non-existent or a material information is wrongly assumed, that will vitiate the Detention Order. When the subjective satisfaction was irrational or there was non-application of mind, the Hon'ble Supreme Court held that the order of detention is liable to be quashed. It is relevant to extract paragraphs 10 and 11 of the said judgment of the Hon'ble Supreme Court:-

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“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,

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https://www.mhc.tn.gov.in/judis

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H.C.P.No.319 of 2024

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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. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.

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11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained. ”

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6. In view of the ratio laid down by the Hon'ble Supreme Court

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and in view of the aforesaid facts, this Court is of the view that the detention order is liable to be quashed.

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7. Accordingly, the detention order passed by the second

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respondent in Memo No.416/BCDFGISSSV/2023, dated 22.09.2023, is https://www.mhc.tn.gov.in/judis Page 5 of 8

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H.C.P.No.319 of 2024

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viz.,

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hereby set aside and the Habeas Corpus Petition is allowed. The detenu

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viz., Elango, Male, aged about 25 years, son of Appanraj, confined at Central Prison, Puzhal, Chennai, is directed to be set at liberty forthwith unless he is required in connection with any other case.

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[M.S.R., J] [S.M., J]

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19.03.2024

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Index: Yes/No Speaking/Non-speaking order Internet: Yes/No Neutral Citation: Yes/No

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Anu

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1.The Secretary to Government, Home, Prohibition Excise Department, Fort St.George, Chennai-600 009.

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