Preventive detention requires subjective satisfaction linked to the facts of the case; mere reliance on dissimilar bail orders without adequate reasoning is insufficient.

ORDER :

S.M.SUBRAMANIAM, J.

PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records in connection with the order of Detention passed by the second respondent in B3/D.O.No.65/2024 dated 15.08.2024 against the petitioner son Santhakumar, Male aged 25 years S/o.Premnath, who is confined at Central Prison, Vellore, and set aside the same and direct the respondents to produce the detenue before the Hon'ble Court and set him at Liberty.

The order of detention passed by the 2nd respondent in proceedings B3/D.O.No.65/2024 dated 15.08.2024 is sought to be quashed in the present Habeas Corpus Petition.

2.The learned counsel for the petitioner submitted that there is an inordinate delay in passing the order of detention. He would further submit that the similar bail order relied on by the detaining authority is dissimilar. In the similar bail order, the bail was granted relying on the order of the Supreme Court in Suo-Motu petition (Civil) No.1 of 2020 In Re: contagion of Covid -19 Virus in prisons. Therefore, bail was granted on exceptional circumstances which cannot be taken into consideration for the purpose of detaining the detenue in the present case.

3.The Detaining Authority relied on the ground that the detenue Mr.Santhakumar was arrested and remanded in Sipcot Police Station in Crime No.264 of 2024. He has filed bail petition in the said case and the same was dismissed on 06.08.2024 in Crl.M.P.No.301 of 2024. However, the Sponsoring Authority has stated that the detenue's relatives are taking steps to take him out on bail in the criminal cases by filing another bail application. In a similar case, registered by Siva Kanchi Police Station in Crime No.2162 of 2020 under Sections 294 (b), 307, 392, 506(ii) I.P.C bail was granted to some other accused by the Sessions Court-II, Kancheepuram, in Crl.M.P.No.1191 of 2020. Thus, the Detaining Authority drew an inference that there is a possibility of coming out on bail in the above said cases, since it is similarly placed cases.

4.It is found that in the similarly placed case, the Court granted statutory bail under Section 167(2) Cr.P.C. Such statutory bail cannot be equated in the bail application likely to be filed by the detenue's relatives. The comparison made would reveal that there is no application of mind on the part of the Detaining Authority. Similar case need not be on similar facts. However, the anology and the legal principles adopted must be similar, so as to form an opinion that the Detaining Authority has not applied his mind. Therefore, similarity does not mean or relatable to the facts of the case, but relatable to the legal principles and the grounds on which the bail was granted in the similar case.

5.In the present case, the similar case was considered and bail was granted under Section 167(2) Cr.P.C, which cannot be equated with the bail application likely to be filed by the relatives of the detenue. Thus, there is no application of mind on the part of the Detaining Authority, while passing the impugned order of detention. Preventive detention being dreconian, the Detaining Authority must be subjectively satisfied and it cannot be issued on the mere basis that the criminal case has been registered.

6. The Hon'ble Supreme Court of India, in the case of Rekha vs. State of Tamil Nadu through Secretary to Government and Another [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. The relevant paragraphs 10 and 11 are extracted hereunder;

“10. In our opinion, if details are given by the respondent authority about the alle