1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD)No.94 of 2011 Gurunathan .. Petitioner vs. 1.State represented by The District Collector and District Magistrate, Tirunelveli, Tirunelveli District. 2.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 9. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, calling for the records from the first respondent in No.MHS.Confdl.01/2011, dated 12.01.2011 by setting aside the said order of detention passed by the first respondent and setting the detenu Magesh, aged about 22 years S/o.Gurunathan at liberty now detained in the Central Prison, Palayamkottai. For petitioner : Mr.K.Prabhu For respondents : Mr.A.Ramar, Addl.Public Prosecutor O R D E R (Order of the Court was made by S.RAJESWARAN,J.) The petitioner is the father of the detenu, namely, Magesh. Challenging an Order of Detention made by the first respondent in No.MHS.Confdl.01/2011, dated 12.01.2011 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. Mr.K.Prabhu, the learned counsel appearing for the petitioner attacks the order of detention firstly on the ground that the Detaining Authority has failed to consider the fact that there is no imminent possibility of the detenu coming out on bail. It is submitted that though the bail applications filed by the detenu in the ground case is yet to be disposed of and thereafter, the detenu has not filed any bail application either in adverse cases or in the ground case, the reasons stated by the Detaining Authority that there is a real possibility of the detenu coming out on bail in all the cases pending against him and indulge in activities prejudicial to the maintenance of public order in future is mere ipse dixit of the detaining authority unsupported by any cogent materials and this https://hcservices.ecourts.gov.in/hcservices/ 2 shows non-application of mind on the part of the detaining authority. The learned counsel relied on the Full Bench decision of this Court reported 2005 MLJ (CRI.) 1101 (Thirupathi.K. Vs. District Magistrate and District Collector, Tiruchirapalli). 3.The second ground of attack on the order of detention was that there there is an unexplained delay in preparing the rejection letter. The learned counsel further pointed out that though file was circulated to Hon'ble Minister (Law, Courts and Prisons) on 07.02.2011, rejection letter was prepared only on 14.02.2011. In the interregnum, there was a delay of 6 days, out of which 3 days were holidays, the remaining 3 days delay was not explained. 4. We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 5. In order to appreciate the submissions made by the learned counsel appearing for the petitioner, we deal with the grounds one by one. 6. As far as the ground No.1 is concerned, in Paragraph No.6 of the detention order, the detaining authority has stated that in the ground case, the bail application filed by the detenu is yet to be disposed of. Therefore, there is a no real possibility of his coming out on bail by filing another bail application in the concerned court or higher court. This aspect has been dealt in Narcotic Control Bureau Vs. Raju Alias Natarajan [(2006) 9 Supreme Court Cases 711] wherein the Hon'ble Supreme Court has observed as follows:- "4. In similar circumstances, this Court in T.V.Saravanan v. State [(2006) 2 SCC 664] directed the release of the detenu. Counsel for the State is unable to distinguish that judgment. This Court in T.V.Saravanan has held that the "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority would be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record in the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention." 7. 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. 8.Now, coming to the other ground raised by the learned counsel appearing for the petitioner that there there unexplained delay in preparing the rejection letter is concerned, though file was circulated to Hon'ble Minister (Law, Courts and Prisons) on 07.02.2011, rejection letter was prepared only on 14.02.2011. In the interregnum, there was a delay of 6 days, out of which 3 days were holidays, the remaining 3 days delay was not explained. https://hcservices.ecourts.gov.in/hcservices/ 3 9.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. On that ground also, the impugned order of detention is liable to be quashed. 10.For the forgoing reasons, the detention order in No.MHS.Confdl.01/2011, dated 12.01.2011 passed by the first 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(P & A) /True copy/ Sub Assistant Registrar(CS) To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 9. 2.The District Collector and District Magistrate, Tirunelveli, Tirunelveli District. 3.The Superintendent, Central Prison, Palayamkottai. 4.The Superintendent of Police, Tirunelveli. 5.The Joint Secretary to Government, Public (Law & Order) Fort St.George, Chennai-9 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. MPK H.C.P.(MD)No.94 of 2011 14.06.2011 TR : 01.07.2011 : 3p/7c https://hcservices.ecourts.gov.in/hcservices/