Allowed

Gowri v. the Additional Chief Secretary to Government

Madras HC9 Jul 2024HCP/721/2024

Case brief

AI extract

What is this about?

Wife challenged preventive detention of her husband as a Drug Offender under the Tamil Nadu Act 14 of 1982. The Court found the bail-likelihood satisfaction defective because the cited bail order was dissimilar, and set aside the detention order.

What did the court decide?

Detention order dated 14.03.2024 in No.192/BCDFGISSSV/2024 set aside; detenu Hemath Ramkumar directed to be set at liberty forthwith unless confined in any other case.

Gowri Vs the Additional Chief Secretary to Government — Bail and Remand | Madras HC (2024)

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HCP.No.721 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 09.07.2024

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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.721 of 2024

Gowri

... Petitioner

Vs.

1.The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai – 600 009.

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2.The Commissioner of Police, O/o. the Commissioner of Police, Greater Chennai, Chennai – 600 007.

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3.The Superintendent, Central Prison, Puzhal, Chennai – 600 066.

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4.State rep. by, The Inspector of Police, Prohibition Enforcement Wing, Anna Nagar, Chennai. ... Respondents

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PRAYER : Petition filed under Article 226 of the Constitution of India to

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detention

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issue a Writ of Habeas Corpus, to call for the records relating to the detention order passed by the 2^nd respondent in No.192/BCDFGISSSV/2024 dated 14.03.2024 against the petitioner's husband branding him as Drug Offender and quash the same and direct the respondents to produce the petitioner's husband namely Hemath Ramkumar, S/o.Nandagopal, aged about 31 years, now confined at Central Prison, Puzhal, Chennai, before this Court and set him at liberty.

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For Petitioner : Mr.A.Nirmal Kumar Sharma For Respondents : Mr.A.Gokulakrishnan, Additional Public Prosecutor

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ORDER

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

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The petitioner herein, who is the wife of the detenu namely Hemath Ramkumar, aged about 31 years, S/o.Nandagopal, has come forward with this petition challenging the detention order passed by the second respondent dated 14.03.2024 slapped on her husband, branding him as "Drug Offender" 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

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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 no previous case is pending 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.1414 of 2021, is not similar to the case on hand since the accused therein was granted bail after recording the fact that no previous case was reported against the accused therein. However, it is admitted that there is 1 adverse case as against the detenu herein. Considering the nature of the bail order in the similar case relied upon by the Detaining Authority and the case on hand, this Court finds that the subjective satisfaction of the Detaining Authority that the

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mind.

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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 paragraph Nos.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

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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. The learned Additional Public Prosecutor placed reliance on a recent decision of the Hon'ble Full Bench of this Court in the case of

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'N.Fathima @ Laila Vs. The State of Tamil Nadu' passed in H.C.P.(MD)

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No.1121 of 2022 and batch., and submitted that when the similar case relied upon in the grounds of detention by the authority for drawing inference that the detenu is likely to come out on bail, is not similar to the

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ground case for which he has been detained, the same will not be fatal to the detention order, as the said ground would be severable in terms of Section 5-A of the Tamil Nadu Act 14 of 1982.

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7. However, in the recent decision in 'Jayalakshmi Vs. The State of

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Tamil Nadu' [HCP No.330 of 2024 dated 16.04.2024] , we had observed that the observations made by the Hon'ble Full Bench in that regard, cannot be reconciled with the judgments of the Hon'ble Supreme Court. The relevant portions of the order read as follows:-

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“ 9. Firstly, that was not the question referred to the Hon'ble Full Bench for its consideration. The observations in this regard, relating to Section 5-A of the Tamil Nadu Act 14 of 1982, in our view, are therefore not binding and cannot be treated as ratio decidendi. In the case of ADM Jabalpur Vs. Shivkant Shukla reported in (1976) 2 SCC 521, the Hon'ble Supreme Court had held that a decision on a point, not necessary for the purpose of, or which does not fall to be determined in that decision, becomes an obiter dictum. Hence, such a point in the decision, would not be an authority for a proposition which did not fall for its consideration, as held in the case of Zee Telefilms Ltd. And Another Vs. Union of India reported in (2005) 4 SCC 649.

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12. Therefore, even though in Ankit Ashok Jalan's case [cited supra], the observations in Rekha's case [cited supra] were distinguished on facts, the requirement to record the satisfaction that the detenu is likely to come out on bail, was reiterated. This requirement is mandated when detention orders are clamped on persons who are in custody. When such a satisfaction is a pre-requisite, to pass a detention order against a person in custody any infirmity in the satisfaction would certainly vitiate the detention order. Such being the legal position enunciated by the Hon'ble Supreme Court, the observations made by the Hon'ble Full Bench that a defect in the said satisfaction would not vitiate the detention order, cannot be reconciled with the judgments of the Hon'ble Supreme Court.

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14. As stated earlier in order to pass a detention order against a person in custody, the detaining authority must be satisfied that a detenu is likely to be released on bail and on being released on bail, is likely to indulge in same prejudicial activities. When this satisfaction is sine qua non, any defect in such satisfaction would render the detention order illegal. Hence, the observations made by the Hon'ble Full Bench of this Court, regarding severability of the ground under

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Section 5-A of the Tamil Nadu Act 14 of 1982, cannot be reconciled with the aforesaid judgments of the Hon'ble Supreme Court, which are binding on us. However, the judgment of the Hon'ble Full Bench is certainly an authority for the proposition that non supply of materials relating to the similar case relied upon by the detaining authority, would not vitiate the detention order. 15. In the present case, there is a defect in the subjective satisfaction. ”

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8. The aforesaid extracts are self explanatory. As such, the objections of the learned Additional Public Prosecutor in this regard, would not be sustainable.

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9. Accordingly, the detention order passed by the second respondent on 14.03.2024 in No.192/BCDFGISSSV/2024, is hereby set aside and the Habeas Corpus Petition is allowed. The detenue namely Hemath Ramkumar, aged about 31 years, S/o.Nandagopal, is directed to be set at liberty forthwith, unless his confinement is required in connection with any

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other case.

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[M.S.R., J] [S.M., J] 09.07.2024

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Index: Yes/No Neutral Citation: Yes/No Sni

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