M.R.Shajathi Begum v. State of Tamilnadu & Ors.
Case at a glance
Outcome
Set aside
Accordingly, the Habeas Corpus Petition is allowed andthe impugned order of detention is set aside
Provisions considered
Key paragraphs
- Para 44. In this regard, it is relevant to refer to theaverments made in the grounds of detention, viz., ParagraphNo.1(ix), which reads as under:-" A bail petition dated 2.10.2004 was filedon your behalf before the ACMM, E.O.I, Egmore, Chennai stating inter alia that you wereinnocent, that…
- Para 55. On going through the factual details in that case andthe case on hand, we are of the view that the said decision isdirectly on the point and we make it clear that it is not ourview that the Detaining Authority is to refer to…
- Para 66. Accordingly, the Habeas Corpus Petition is allowed andthe impugned order of detention is set aside. The detenu isdirected to be set at liberty forthwith from the custodyunless he is required in some other case or cause. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarJI.To1.The Secretary to the…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 11.04.2005Coram:-The Hon'ble Mr. Justice P.SATHASIVAMandThe Hon'ble Mr. Justice S.K.KRISHNANH.C.P. No.1280 of 2004M.R.Shajathi Begum... Petitioner vs.
State of TamilnaduRep. by Secretary to Government, Public (S.C.) Dept.,Fort St. George, Chennai 600 009.
Union of India, Rep. by Secretary to Government, Ministry of Finance department Of Revenue, New Delhi.... RespondentsPetition under Article 226 of the Constitution of India forthe issuance of a writ of habeas corpus to call for therecords of the 1st respondent made in G.O. no.SR.1/1228-4/2004dated 13.10.2004 and quash the same and set at liberty thedetenu M.K.S.Mohammed Rafi son of Mohammed Sultan. For Petitioner: Mr.B.Kumar, Senior Counselfor Mr.R.LoganthanFor R-1 : Mr.A.KandasamyAdditional Public Prosecutor. For R-2: Mrs. Vanathi Srinivasan, Addl. Central Govt. Standing Counsel. . . . . https://hcservices.ecourts.gov.in/hcservices/
O R D E R (Order of the Court was made by P.SATHASIVAM, J.)One M.R.Shajathi Begum, wife of the detenu by nameM.K.S.Mohamed Rafi, challenges the detention order dated13.10.2004, passed by the first respondent herein under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52of 1974).2. Heard learned Senior Counsel for petitioner, learnedAdditional Public Prosecutor for R-1 and learned AdditionalCentral Government Standing Counsel for R-2.
Though several points have been raised questioning theorder of detention, at the foremost, Mr.B.Kumar, learnedSenior Counsel appearing for the Petitioner, projected beforeus that though the Detaining Authority was aware of thefiling of bail petition on 02.10.2004 and the contentstherein, failed to take into consideration the order ofdismissal of the bail petition dated 11.10.2004, whichvitiates the subjective satisfaction arrived at by the Detaining Authority.
In this regard, it is relevant to refer to theaverments made in the grounds of detention, viz., ParagraphNo.1(ix), which reads as under:-" A bail petition dated 2.10.2004 was filedon your behalf before the ACMM, E.O.I, Egmore, Chennai stating inter alia that you wereinnocent, that you did not commit any offence asalleged and that you were an Income Taxassessee"It is clear that the Detaining Authority was aware of thefiling of bail petition dated 2.10.2004 before the courtconcerned and also the contents of the same. It is alsouseful to refer to Paragraph No.5 of the grounds of detention, which reads as under:-" The State Government are also aware ofthe fact that you are in the Central Prison, Chennai as remand prisoner; that the saidjudicial remand is only for the periodspecified in law; that there is likelihood ofyou being released on bail or statutorybail. ..." https://hcservices.ecourts.gov.in/hcservices/ The above reference makes it clear that there is likelihood ofthe detenu being released on bail or securing statutory bailafter sometime.
It is brought to our notice that even asearly as on 11.10.2004, the said bail petition came to bedismissed, however, this was not referred to in the grounds ofdetention. A perusal of the order dated 11.10.2004 shows thatthe said petition came to be dismissed in the presence of theA.P.P. Though the learned Additional Public Prosecutorcontended that the bail petition came to be dismissed as thepetitioner himself not pressed the same and that the order wasnot passed in the presence of the A.P.P., on going through theorder of the learned Additional Chief Metropolitan Magistrate(Economic Offences-I), Egmore, Chennai-8, dated 11.10.2004, weare satisfied that the said order was passed on that day inthe presence of the petitioner and the A.P.P. as well. Inthis regard, it is useful to refer to the decision rendered bya Division Bench of this Court (to which one of us was a party(PSJ)) dated 30.3.2004, made in HCP No.1495 of 2003, wherein, while considering similar contention, after referring to the Judgment of the Supreme Court in ABDUL SATHAR IBRAHIM MANICKvs.
UNION OF INDIA (1992 (1) SCC page 1), the Division Benchhas held in paragraph No.4 as follows:-" ... The learned Additional Public Prosecutorrelied upon the judgment of the Apex Courtreported in ABDUL SATHAR IBRAHIM MANICK VSUNION OF INDIA ( 1992(1) SCC 1) wherein itwas held that non supply of copy of dismissalorder of the bail application is not a groundfor vitiating the order of detention. Thelearned counsel for the detenu was not harpingon that point. What he has argued wasregarding the combined reading of para 5 andpara 1(ix) of the grounds of detention, whereby it is learnt that even though the Detaining Authority was aware of the fact ofdetenu being in custody, it was stated in thegrounds of detention that there was likelihoodof he being released on bail. The very termthat the detenu is likely to be released onbail would go to show that either pendency ofthe bail application or possibility of filingof another bail application.
Unless the Detaining Authority shows that bailapplication was already dismissed, he will notbe right in saying that there is likelihood ofthe detenu being released on bail. From theabove term what is understandable is that the https://hcservices.ecourts.gov.in/hcservices/ detenu is likely to file another bailapplication and get himself released. Althoughin the above case law viz., 1992(1) SCC Page1, it was said that non supply of dismissalorder of bail application is not a ground forvitiating the order of detention, even in thatjudgment it was observed that awareness of the Detaining Authority about the fact of detenubeing in custody should necessarily be there. Awareness should be understandable only if itis made known to the Detaining Authority as towhat order has been passed in the bailapplication. Unless this is made known, therecan be no awareness of the fact of detenubeing in custody. Inasmuch as the result ofbail application was not at all made known tothe Detaining Authority as seen from thegrounds of detention, there arises a questionof non application of mind and subjectivesatisfaction of the Detaining Authority. Weare of the view that the Detaining Authorityhas not properly applied his mind in thisconnection and therefore, the detention ordergets vitiated. In view of the above, we arenot inclined to go to the other points raisedby the learned counsel for the detenu. "
On going through the factual details in that case andthe case on hand, we are of the view that the said decision isdirectly on the point and we make it clear that it is not ourview that the Detaining Authority is to refer to the dismissalof the bail petition, however, as pointed out in the saiddecision, the awareness of the Detaining Authority about thefact of detenu being in custody should necessarily be thereand awareness should be understandable only if it is madeknown to the Detaining Authority as to what order has beenpassed in the bail application. Inasmuch as the result ofbail application was not at all made known to the Detainingauthority, as seen from the grounds of detention, therearises a question of non-application of mind and subjectivesatisfaction of the Detaining Authority. https://hcservices.ecourts.gov.in/hcservices/
Operative part
Accordingly, the Habeas Corpus Petition is allowed andthe impugned order of detention is set aside. The detenu isdirected to be set at liberty forthwith from the custodyunless he is required in some other case or cause. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarJI.To1.The Secretary to the Government, Public (S.C.) Dept.,Fort St. George, Chennai 600 009.2.The Secretary to the Government, Ministry of Finance, Department of Revenue, New Delhi. 3. The Superintendent, Central Prison, Chennai4.The Joint Secretary to Government, Public (law and order)fort st.george, Chennai-95.The Public Prosecutor, High Court, Chennai.+1cc to Mrs. Vanathi Srinivasan, Advocate Sr.No.17343+1cc to Mr.R.Loganathan, Advocate Sr.No.17141TEJ(CO)kaa 18.04. HCP. No.1280 of 2004.11.04.2005.
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Accordingly, the Habeas Corpus Petition is allowed andthe impugned order of detention is set aside
Which statutory provisions did this judgment involve?
Constitution of India — art. 226; Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974 — s. 3(1)(i).
Which court decided this case, and when?
Madras High Court, on 11 Apr 2005. The bench was P SATHASIVAM.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.