Allowed

Kamalavalli v. Principal Secretary to the Government

Madras HC11 Jun 2024HCP/449/2024

Case brief

AI extract

What is this about?

Mother's habeas corpus petition against preventive detention of her son under the Tamil Nadu Goondas Act. The bail order relied on by the detaining authority was dissimilar; following Rekha v. State of Tamil Nadu, the detention order was quashed for non-application of mind and the detenu set at liberty.

What did the court decide?

Detention order dated 07.01.2024 quashed; detenu Vinothkumar @ Baba directed to be set at liberty forthwith unless required in any other case.

Kamalavalli Vs Principal Secretary to the Government — Quashing and FIR | Madras HC (2024)

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HCP.No.449 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 11.06.2024

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CORAM :

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THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE SUNDER MOHAN

H.C.P.No.449 of 2024

Kamalavalli

... Petitioner

Vs.

1.Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat,

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Chennai – 600 009.

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2.The District Collector cum District Magistrate , Collectorate, Kanchipuram Taluk & District.

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3.The Superintendent of Police, Kanchipuram, Kanchipuaram Taluk & District.

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4.The Superintendent, Central Prison – Puzhal-II, Chennai – 600 066.

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5.The Inspector of Police, C-2, Sunguvar Chathiram Police Station, Kanchipuram, Kanchipuram Taluk & District.

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... Respondents

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HCP.No.449 of 2024

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PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, directing the respondents herein to produce the detenu Vinothkumar @ Baba, Male, aged 23 years, S/o. Sivakumar , confined at Central Prison Puzhal-II, under impugned detention order in Rc.No.262/2023/M6-D.O.No.02/2024 dated 07.01.2024 issued by the 2^nd respondent before this Court and set him at liberty.

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For Petitioner : Mr.T.R.Shanmugam 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

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SUNDER MOHAN, J.

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The petitioner herein, who is the mother of the detenu Vinothkumar @ Baba, aged about 23 years, S/o. Sivakumar, has come forward with this petition challenging the detention order passed by the second respondent dated 07.01.2024 slapped on her son, branding him as "Goonda" 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 14 of 1982].

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2. Heard the learned counsel for the petitioner, as well as the learned Additional Public Prosecutor appearing for the respondents.

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3. Though several grounds are raised in the petition, the learned

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counsel for the petitioner pointed out that the Detaining Authority has not applied its mind while expressing its subjective satisfaction that the detenu is 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 accused was detained under Goondas Act and it was revoked by the Advisory Board.

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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 C.M.P.No.1942 of 2021 dated 19.11.2021, is not similar to the case on hand, since the accused therein was granted bail after recording the fact that the accused was detained under Goondas Act and it was revoked by the Advisory Board. Considering the nature of the bail order in the similar case relied upon by the Detaining

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Authority and the case on hand, this Court finds that the subjective satisfaction of the 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

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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. 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 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 respondent

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on 07.01.2024 in Rc.No.262/2023/M6-D.O.No.02/2024 , is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Vinothkumar @ Baba, Male, aged about 23 years, S/o.Sivakumar, is directed to be set at liberty forthwith, unless his confinement is required in connection with any other case.

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

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11.06.2024

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

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Sni

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HCP.No.449 of 2024