1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD) No.60 of 2011 Indirani ..Petitioner vs. 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009. 2.The District Magistrate and District Collector, Virudhunagar District, Virudhunagar. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to direct the respondents to call for the entire records connected with the detention order of the Respondent No.2 in Cr.M.P.No.03/2011(GOONDA) dated 20.1.2011 and quash the same and direct the respondents to produce the body and person of the petitioner's husband by name Senthil @ Naicker Senthil @ Senthilkumar, son of Samykannu, aged about 36 years detained in Madurai Central Prison before this Court and set him at liberty forthwith. For petitioner : Mr.Daniel Manoharan for Mr. Alagumani For respondents : Mr. P.Jothi, Addl.Public Prosecutor ORDER (Order of the Court was made by S.RAJESWARAN, J) The petitioner is the wife of the detenu viz., Senthil @ Naicker Senthil @ Senthilkumar. Challenging an Order of Detention of the second respondent dated 20.1.2011 in Cr.M.P.No.03/2011 (GOONDA) branding the detenu as a “Goonda” under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), this Habeas Corpus Petition has been filed by the petitioner. 2. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents and perused the order under challenge. 3. As pointed out by the learned counsel appearing for the petitioner, there is non-application of mind on the part of the detaining authority. Actually, the detenu was arrested on 16.1.2011 and produced before the Judicial Magistrate Court-I, Virudhunagar on 17.1.2011 and https://hcservices.ecourts.gov.in/hcservices/ 2 remanded to judicial custody upto 31.1.2011 in connection with the ground case registered by Virudhunagar Bazaar Police Station in Crime No.23/11 under Section 394 IPC. Apart from this case, he was involved in three adverse cases. He obtained bail in two adverse cases. Thus, the detenu was in custody in respect of the ground case and in one adverse case. In the order of detention, the detaining authority has pointed out that if he is let to remain at large, he will further indulge in such activities in future, which will be prejudicial to the maintenance of public order. 4. For better appreciation, Paragraph No.5 of the order is extracted below:- "5. I am aware that Thiru.Senthil @ Naicker Senthil @ Senthilkumar, has been remanded to judicial custody upto 31.1.2011 and lodged in District Jail, Virudhuangar in connection with Virudhunagar Bazaar Police Station Cr.No.23/2011. Out of three adverse cases against Thiru.Senthil @ Naicker Senthil @ Senthilkumar, he obtained Court bail in two cases and committed crimes in one adverse case and in the ground case. He has committed crimes regularly in Virudhungar Town which are prejudicial to the maintenance of Public Order. If he is let to remain at large, he will further indulge in such activities in future..." 5. A perusal of the same would show that there is no cogent material available in this case to presume that the detenue would come out on bail. It is only an apprehension that was passing in the mind of the detaining authority that the detenue would come out on bail. It is well settled that if there is no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail, the detention order is vitiated and the mere ipse dixit of the detaining is not sufficient to sustain the order of detention. 6. Secondly, it is seen in the Proforma produced by the learned Additional Public Prosecutor before this Court that the representation of the detenu was received on 27.1.2011, remarks were called for on 28.1.2011 but remarks were received only on 7.2.2010. Thus, there was a delay of 9 days, out of which, 4 days happened to be holidays i.e. 29.1.2011, 30.1.2011, 5.2.2011 and 06.2.2011 and in effect, there was a delay of 5 days in considering the representation, which remains unexplained. 7. Such unexplained delay in considering the representation would amount to deprivation of making effective representation guaranteed under Article 22(5) of the Constitution of India and therefore, the impugned order of detention is liable to be quashed. 8. Accordingly, the detention order in in Cr.M.P.No.03/2011(GOONDA) dated 20.1.2011 passed by the second respondent is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar(CO) /True copy/ Sub Assistant Registrar(CS) https://hcservices.ecourts.gov.in/hcservices/ 3 To 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 600 009. 2.The District Magistrate and District Collector, Virudhunagar District, Virudhunagar. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. 4.The Joint Secretary to Government, Public (Law and order) Fort St.George, Chennai-9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. asvm H.C.P.(MD)No.60 of 2011 20.6.2011 TR : 04.06.2011 : 3p/6c https://hcservices.ecourts.gov.in/hcservices/