Boopathi vs Additional Chief Secretary To Government State Of Tamil Nadu And Ors

K. Kalyanasundaram, J

This habeas corpus petition has been filed by the sister of the detenu, namely, Sundarraj, son of Balakrishnan, aged about 28 years, against the detention order in H.S.(M) Confdl.No.109/2020, dated 20.11.2020, passed by the second respondent, branding him as "Goonda" as contemplated under Section 2(f) of Tamil Nadu Act, 14 of 1982.

Though several grounds have been raised challenging the impugned detention order, Mr.R.Alagumani, learned counsel for the petitioner, would mainly contend that the impugned order of detention is liable to be set aside on the grounds of arbitrary action taken by the Authorities for clamping the detention order only as against one accused, leaving the other accused, who are also similarly placed and lack of application of mind on the part of the Detaining Authority, while passing the impugned detention order. It is the submission of the learned counsel for the petitioner that there are totally six accused in the ground case, but, the detention order has been passed only as against A1 / detenu herein leaving the other accused, who are similarly placed that of the detenu herein.

Per contra, Mr.K.Dinesh Babu, learned Additional Public Prosecutor, on instructions, submitted that the detenu in this case is involved in two adverse cases and the ground case has been registered for the offence of commission of murder and hence, the Detaining Authority has rightly passed the detention order against the detenu alone. It is further contended that there is no illegality or irregularity in the detention order warranting interference of this Court and hence, prayed for dismissal of the habeas corpus petition.

We have heard the rival submissions and perused the materials placed on record.

In the instant case, a perusal of Page No.183 of the booklet filed by the learned counsel for the petitioner would show that an Alteration Report has been filed by the Investigating Officer in the ground case as against six accused. However, the Detaining Authority has passed the detention order only as against one accused / detenu herein leaving the other accused, who are also placed in same footing.

In Chandra v. The Secretary to Government [2010 (1) MWN (Cr.) 129], it has been held that the Authorities cannot exercise their power arbitrarily for picking and choosing only some of the accused to clamp the order of detention. The relevant paragraph would run thus:

"10. It is the further contention raised on behalf of the petitioners that the equal protection clause shall be attracted against the orders of preventive detention as well. But, this court is of the considered view that the equal protection clause cannot be stretched further to be made applicable for quashing the orders of detention for not assigning reasons in the grounds of detention for the exclusion of others and selection of the detenus alone when the detaining authority choses the persons among the accused in the ground case to be clamped with the order of detention under the preventive detention law. However, we are of the view that there is some force in the contention that the exercise of power by the detaining authority to pass orders of detention against the detenus concerned in these HCPs alone can be challenged as being arbitrary. The arbitrariness pointed out on behalf of the petitioners is that though the detaining authority chose to consider the detenus concerned in these HCPs alone as a class out of the nine accused persons, who were arraigned as such in the first and third adverse cases and the ground case, there was no reasonable basis for such a classification to treat them differently from the rest of the persons. The said argument has been advanced on the ground that no reason has been assigned in the grounds of detention for selecting the above said three persons alone for being termed as goondas. We are of the considered view that it shall not be necessary on the part of the detaining authority to assign any reason in the grounds of detention as to why the other persons are not chosen for being detained under the preventive detention law. Suffice to state the satisfaction that the detenus are to be termed goondas and their presence at large will be detrimental to the maintenance of public order. But the same does not mean that the court while dealing with HCP challenging the order of detention, cannot go into the question of arbitrariness in such classification. When the order of detention is challenged on the ground of arbitrariness based on the classification of the detenus alone from the rest of the accused, it shall be the duty of the detaining authority and the State to establish reasonable basis of such classification to rule out arbitrariness. In this case, though the detaining authority cannot be found fault with for not assigning reason in the grounds of detention for selecting the detenus concerned in these HCPs alone for clamping the orders of detention leaving out the other accused in the ground case and the adverse cases, there is failure on the part of the respondents herein to state the basis of such classification atleast before the court in these HCPs. The failure on the part of the respondents to assign reasons in their counter affidavit in these petitions as to why the detenus alone were selected for detention as goondas leaving out the other six persons will show that the exercise of the statutory power by the detaining authority was arbitrary especially when the left out persons were placed on equal footing with Murugan and Murali, the detenus concerned in H.C.P.Nos.2393 and 2404 of 2009 and found implicated in more number of cases than Rajendran, the detenu concerned in H.C.P.No.2405 of 2009. Hence we are convinced that orders of detention challenged in these HCPs are vitiated on the ground of arbitrariness."

In this case also, no explanation has been given by the Detaining Authority for passing the detention order only against one accused.

Further, the Detaining Authority, while reaching the subjective satisfaction, has referred the bail granted to one Kanakaraj by this Court, vide order dated 23.12.2016 in Crl.O.P.(MD) No.23893 of 2016. Admittedly, in the said case, bail was granted on the ground that investigation is over and charge sheet has been filed, which was taken on record in P.R.C.No.43 of 2016. But, in the present case, the Detaining Authority, at Paragraph No.3 of the detention order, has stated that investigation in the ground case is pending. So, we find force in the contention of the learned counsel for the petitioner that there is lack of application of mind on the part of the Detaining Authority while passing the impugned detention order. Hence, in our considered view, the detention order is liable to be set aside on the grounds as stated above by following the decision cited supra.

In fine, the Habeas Corpus Petition is allowed. The order of detention in H.S.(M) Confdl.No.109/2020, dated 20.11.2020, passed by the second respondent, is set aside. Consequently, the detenu, namely, Sundarraj, son of Balakrishnan, aged about 28 years, who is now detained at Central Prison, Palayamkottai, is directed to be released forthwith unless his presence or custody or detention is required in connection with any other case.