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.80 of 2011 Michaelraj ... Petitioner Vs. 1.The State of Tamil Nadu Represented by itse Secretary to Government Home Prohibition and Excise(XVI) Department, Government of Tamil Nadu, Fort St.George, Chennai 600 009. 2.The District Collector and District Magistrate, O/o.The District Collector, Thirunelveli District. 3.The Secretary, Advisory Board, Coovam House, Omanthurar Government Estate, Swami Sivanantha Salai, Chennai. ... Respondents PRAYER: The Habeas Corpus petition is filed under Article 226 of the Constitution of India, calling for the entire records connected with the detention order M.H.S.Confdl.No.70/2010 dated 15.11.2010 on the file of the respondent No.2 and quash the same and direct the respondents to produce the body and person of the petitioner's son Arputharaj @ Arputhajeyamani, aged about 27 years, now confied at Palayamkottai Central Prison, before this Court and set him at liberty forthwith. For Petitioner : Mr.S.M.A.Jinnah For Respondents : Mr.A.Ramar Addl.Public Prosecutor O R D E R (Order of this Court was made by S.RAJESWARAN, J.) The petitioner, who is the father of the detenu, has filed this petition challenging the order of detention, dated 15.11.2010, passed by the 2nd respondent under the Tamil Nadu Act 14 of 1982, branding the petitioner's husband by name Selvam @ Selvakumar as a "Goonda" and directing him to be detained at the Central Prison, Palayamkottai. 2.Learned counsel appearing for the petitioner attacks the order of detention firstly on the ground that the Detaining Authority has https://hcservices.ecourts.gov.in/hcservices/ 2 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 adverse case are yet to be disposed and in the ground case, he has not filed any bail application so far, 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 such activities, which will be prejudicial to the maintenance of public order in future is mere ipse dixit of the detaining authority and unsupported by any cogent materials and this shows non- application of mind on the part of the detaining authority. The learned counsel invited the attention of this court to a 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 considering the representation of the petitioner. The learned counsel points out that the representation made was received on 24.12.2010, remarks were called for on 27.12.2010 but the remarks were received only on 03.01.2011. In the interregnum, there was a delay of 6 days, out of which 2 days were holidays, the remaining 4 days delay were remain unexplained. 4.The learned Additional Public Prosecutor would submit that the Detaining Authority has considered the bail application filed by the detenu in the ground case and the detaining authority satisfied himself that there was a real possibility of the detenu coming out on bail. Therefore, according to the learned Additional Public Prosecutor, the detaining authority has recorded his subjective satisfaction to detain the detenu under Tamil Nadu Act 14 of 1982 after applying his mind to the materials placed before him and there is nothing to interfere with the order of detention. 5.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. 6.The petitioner, who is the father of the detenu, has come forward with this petition to set aside the detention order dated 15.11.2011. The contentions raised by the petitioner are that (i)the Detaining Authority has passed the impugned order mechanically and without application of mind and there is no cogent material to come to the conclusion that there is a real possibility of the detenu coming out on bail. 7.In the Full Bench decision of this Court in Thirupathi.K. V. District Magistrate and District Collector, Tiruchirapalli reported in 2005 M.L.J. (CRI.) 1101, (cited supra) it was held as follows: "A strict insistence of the usage of the word "imminent" is not necessary and the other convincing expressions like "real possibility", "very likely" or "most likely" can be used by the detaining authority to reflect its satisfaction with regard to immediate release of the detenu on bail. ... The orders of detention and its continuance should be in https://hcservices.ecourts.gov.in/hcservices/ 3 conformity with Art.22 of the Constitution of India. The detaining authority is required to follow strictly and scrupulously the forms and rules of law prescribed in that behalf or by the statutory provision under which the order of detention is being made after arriving at a subjective satisfaction. Any violation would entail quashing of the order of detention." 8.It is by now well settled that under all detention laws, the orders of detention and its continuance of detention should be in conformity with Article 22 of the Constitution of India and slightest infraction of the constitutional protection enshrined therein would be a valid ground to set the detenu at liberty. 9.Further, there must be cogent material before the authority, who passes the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from material on record and must not be ipse dixit of the Authority passing the detention order. 10.In the case of person in custody a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of reliable material placed before him (a)that there is real possibility of his being released on bail, and (b)if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording its satisfaction in this behalf, such and order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such oppositions to question it before a higher court. 11.Therefore the imminent possibility or real possibility of the detenu coming out on bail is to the subjective satisfaction of the detaining authority and not on mere ipse dixit. 12.That being the legal position, in the present case, admittedly the detenu is in remand in the ground case. Further, the bail application filed by him in the adverse case are yet to be disposed of and in the ground case, he has not filed any bail application so far. As rightly pointed out by the learned counsel for the petitioner, the petitioner, who is the father of the detenu, is not taking any steps to file further bail application. 13.In 2005 MLJ 882 (Prathab Raj Vs. Commissioner of Police, Chennai), this Court held that when there is no bail application moved by the detenu and in the absence of imminent possibility of his coming out on bail, the impugned order of detention is liable to be quashed. 14.Therefore, in the light of the above, we are of the considered view that the impugned detention order was passed mechanically and without application of mind and as such the detention order, dated https://hcservices.ecourts.gov.in/hcservices/ 4 28.02.2011, is liable to be quashed on this ground alone. Therefore, the grounds raised by the learned counsel for the petitioner merit acceptance and the impugned detention order is liable to be quashed on those grounds. 15.Apart from that, there is an unexplained delay in considering the representation of the petitioner dated 22.10.2010. The learned counsel further pointed out that the representation was received on 24.12.2010, remarks were called for on 27.12.2010 but the remarks were received only on 03.01.2011. In the interregnum, there was a delay of 6 days, out of which 2 days were holidays, the remaining 4 days delay were not explained. 16.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. 17.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 15.11.2010, passed by the 2nd respondent in his proceedings in M.H.S.confdl No.:70/2010, is quashed. The detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar To 1.The Secretary to Government Home Prohibition and Excise(XVI) Department, Government of Tamil Nadu, Fort St.George, Chennai 600 009. 2.The District Collector and District Magistrate, O/o.The District Collector, Thirunelveli District. 3.The Secretary, Advisory Board, Coovam House, Omanthurar Government Estate, Swami Sivanantha Salai, Chennai. 4. The Joint Secretary to Government Low & order), Fort Saint George, Chennai-9. 5.The Superintendent, Central Prison, Palayamkottai. 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1CC TO MR.S.M.A.JINNAH, ADVOCATE SR.18261 Mpk GH : 30.06.2011 : 4p/8c H.C.P.(MD)No.80 of 2011 14.06.2011 https://hcservices.ecourts.gov.in/hcservices/