The Hon'ble Supreme Court, in the case of 'Rekha v. State of Tamil Nadu through Secretary to Government and Another' reported in '

H.C.P.No.988 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.08.2024CORAM :THE HONOURABLE MR. JUSTICE M.S. RAMESHANDTHE HONOURABLE MR. JUSTICE SUNDER MOHANH.C.P.No.988 of 2024B.Vaishnavi... Petitioner/wife of the detenueVs.1.The Secretary to Government,Home, Prohibition & Excise Department,Secretariat,Fort St. George,Chennai-600 009.2.The Commissioner of Police,Greater Chennai,Office of the Commissioner of Police,Vepery, Chennai. 3.The Superintendent of Police,Central Prison,Puzhal, Chennai. 4.The Inspector of Police,K-11, CMBT (crime),Prohibition Enforcement Wing,,Anna Nagar P.S, Chennai. ... RespondentsPage 1 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Habeas Corpus, calling for the records pertaining to the order of detention passed by the second respondent in his proceedings No.379/BCDFGISSSV/2024, dated 17.04.2024 and quash the same as illegal and produce the detenue, namely Boobalan, S/o.Murugan, aged 23 years, Drug Offender, now he is confined at Central prison, Puzhal-II, Chennai, before this Court and set him at liberty. For Petitioner: Mr.C.RajaFor Respondents: Mr.A.Gokulakrishnan Additional Public Prosecutor ORDERM.S.RAMESH, J.andSUNDER MOHAN, J.The petitioner herein who is the wife of the detenue viz., Boobalan, S/o.Murugan, aged 23 years, confined at Central prison, Puzhal-II, Chennai, has come forward with this petition challenging the detention order passed by the second respondent dated 17.04.2024 slapped on her husband, branding him as "Drug Offender" under the Tamil Nadu Page 2 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024Prevention 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].2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.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 there were no previous cases as against the accused therein.4. Upon a perusal of the Booklet in Volume-II, this Court finds that the detaining authority has relied on an order passed in Crl.M.P.No.1414 of 2021 dated 04.06.2021, to arrive at the satisfaction that the detenue is likely to be released on bail. In that case, the accused had no previous Page 3 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024cases; however, as per the remand report furnished to the detenue in the booklet, the detenue has two previous cases. Therefore, the order relied upon by the detaining authority cannot be said to be similar. The subjective satisfaction is vitiated and suffers from non-application of mind.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:-“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 Page 4 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024bail 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, 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. 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.”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 Page 5 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024'N.Fathima @ Laila Vs. The State of Tamil Nadu' passed in H.C.P.(MD) 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 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 1982.7. However, in the recent decision in 'Jayalakshmi Vs. The State of 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:-“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 Page 6 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024held 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......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......Page 7 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 202414. 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 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.”8. The aforesaid extracts are self explanatory. As such, the objections of the learned Additional Public Prosecutor in this regard, would not be sustainable.Page 8 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 20249. Accordingly, the detention order passed by the second respondent in No.379/BCDFGISSSV/2024, dated 17.04.2024, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Boobalan, S/o.Murugan, aged 23 years, confined at Central prison, Puzhal-II, Chennai, is directed to be set at liberty forthwith unless he is required in connection with any other case. [M.S.R., J] [S.M., J] 01.08.2024Index: Yes/NoSpeaking/Non-speaking orderNeutral Citation: Yes/NoAnuNote :- Registry shall forthwith return the booklet containing the materials, on which, the Detaining Authority has placed reliance, to the petitioner/counsel for the petitioner with due acknowledgment.Page 9 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024M.S.RAMESH , J. andSUNDER MOHAN, J.AnuTo1.The Secretary to Government,Home, Prohibition & Excise Department,Secretariat,Fort St. George,Chennai-600 009.2.The Commissioner of Police,Greater Chennai,Office of the Commissioner of Police,Vepery, Chennai. 3.The Superintendent of Police,Central Prison,Puzhal, Chennai. 4.The Inspector of Police,K-11, CMBT (crime),Prohibition Enforcement Wing,,Anna Nagar P.S, Chennai. 5.The Joint Secretary,Law and Order Department,Secretariat, Chennai. 6.The Public Prosecutor,High Court, Madras.H.C.P.No.988 of 202401.08.2024Page 10 of 10

H.C.P.No.988 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.08.2024CORAM :THE HONOURABLE MR. JUSTICE M.S. RAMESHANDTHE HONOURABLE MR. JUSTICE SUNDER MOHANH.C.P.No.988 of 2024B.Vaishnavi... Petitioner/wife of the detenueVs.1.The Secretary to Government,Home, Prohibition & Excise Department,Secretariat,Fort St. George,Chennai-600 009.2.The Commissioner of Police,Greater Chennai,Office of the Commissioner of Police,Vepery, Chennai. 3.The Superintendent of Police,Central Prison,Puzhal, Chennai. 4.The Inspector of Police,K-11, CMBT (crime),Prohibition Enforcement Wing,,Anna Nagar P.S, Chennai. ... RespondentsPage 1 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024Prayer : Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Habeas Corpus, calling for the records pertaining to the order of detention passed by the second respondent in his proceedings No.379/BCDFGISSSV/2024, dated 17.04.2024 and quash the same as illegal and produce the detenue, namely Boobalan, S/o.Murugan, aged 23 years, Drug Offender, now he is confined at Central prison, Puzhal-II, Chennai, before this Court and set him at liberty. For Petitioner: Mr.C.RajaFor Respondents: Mr.A.Gokulakrishnan Additional Public Prosecutor ORDERM.S.RAMESH, J.andSUNDER MOHAN, J.The petitioner herein who is the wife of the detenue viz., Boobalan, S/o.Murugan, aged 23 years, confined at Central prison, Puzhal-II, Chennai, has come forward with this petition challenging the detention order passed by the second respondent dated 17.04.2024 slapped on her husband, branding him as "Drug Offender" under the Tamil Nadu Page 2 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024Prevention 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].2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.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 there were no previous cases as against the accused therein.4. Upon a perusal of the Booklet in Volume-II, this Court finds that the detaining authority has relied on an order passed in Crl.M.P.No.1414 of 2021 dated 04.06.2021, to arrive at the satisfaction that the detenue is likely to be released on bail. In that case, the accused had no previous Page 3 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024cases; however, as per the remand report furnished to the detenue in the booklet, the detenue has two previous cases. Therefore, the order relied upon by the detaining authority cannot be said to be similar. The subjective satisfaction is vitiated and suffers from non-application of mind.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:-“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 Page 4 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024bail 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, 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. 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.”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 Page 5 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024'N.Fathima @ Laila Vs. The State of Tamil Nadu' passed in H.C.P.(MD) 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 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 1982.7. However, in the recent decision in 'Jayalakshmi Vs. The State of 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:-“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 Page 6 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024held 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......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......Page 7 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 202414. 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 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.”8. The aforesaid extracts are self explanatory. As such, the objections of the learned Additional Public Prosecutor in this regard, would not be sustainable.Page 8 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 20249. Accordingly, the detention order passed by the second respondent in No.379/BCDFGISSSV/2024, dated 17.04.2024, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Boobalan, S/o.Murugan, aged 23 years, confined at Central prison, Puzhal-II, Chennai, is directed to be set at liberty forthwith unless he is required in connection with any other case. [M.S.R., J] [S.M., J] 01.08.2024Index: Yes/NoSpeaking/Non-speaking orderNeutral Citation: Yes/NoAnuNote :- Registry shall forthwith return the booklet containing the materials, on which, the Detaining Authority has placed reliance, to the petitioner/counsel for the petitioner with due acknowledgment.Page 9 of 10 https://www.mhc.tn.gov.in/judis H.C.P.No.988 of 2024M.S.RAMESH , J. andSUNDER MOHAN, J.AnuTo1.The Secretary to Government,Home, Prohibition & Excise Department,Secretariat,Fort St. George,Chennai-600 009.2.The Commissioner of Police,Greater Chennai,Office of the Commissioner of Police,Vepery, Chennai. 3.The Superintendent of Police,Central Prison,Puzhal, Chennai. 4.The Inspector of Police,K-11, CMBT (crime),Prohibition Enforcement Wing,,Anna Nagar P.S, Chennai. 5.The Joint Secretary,Law and Order Department,Secretariat, Chennai. 6.The Public Prosecutor,High Court, Madras.H.C.P.No.988 of 202401.08.2024Page 10 of 10