1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Habeas Corpus Petition (MD) No.65 of 2011 Poongothai .. Petitioner Vs. 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The Commissioner of Police, Madurai City, Madurai. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Habeas Corpus calling for the entire records connected with the detention order of Respondent No.2 in No.007/BDFGISSV/2011 dated 13.01.2011 and quash the same and direct the respondents to produce the body and person of the petitioner's son by name Azhagar, Son of Ramar Servai, aged about 27 years, detained in Madurai Central Prison before this Court and set him at liberty forthwith. For Petitioner : Mr.R.Alagumani For Respondents : Mr.P.Jothy, Addl.Public Prosecutor O R D E R (Order of the Court was made by G.M.AKBAR ALI, J.) Challenge is made to the order of detention passed by the second respondent in his Proceedings 007/BDFGISSV/2011 dated 13.01.2011 whereby the petitioner's son by name Azhagar was ordered to be detained under the provisions of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA". https://hcservices.ecourts.gov.in/hcservices/ 2 2. The detention order was passed on 13.01.2011 and the detaining authority, on consideration of the adverse cases and the ground case, which are similar in nature, observed that the detenu is habitually committing crimes and acted in a manner prejudicial to the maintenance of public order. 3. Learned counsel for the petitioner raised two grounds, challenging the detention order. The first ground raised by the counsel for the petitioner is that the detaining authority has not applied his mind while passing the order of detention. For this, he submitted that the detaining authority, while stating that the detenu has not filed any bail application in the ground case and adverse cases before any Court so far, came to the conclusion that there is real possibility of the detenu coming out on bail by filing bail applications in the ground case as well as the adverse cases, since in similar cases bail is granted by the concerned Court or Higher Court. The second ground raised by the counsel for the petitioner is that there was delay in considering the representation of the detenu. Therefore, according to the counsel for the petitioner, on these two grounds the order of detention is vitiated. 4. The first ground raised by the counsel for the petitioner is that the detaining authority has not applied his mind while passing the order of detention. In paragraph-5 of the detention order, it is stated by the detaining authority that the detenu has not filed any bail application in the ground case and adverse cases before any Court so far and he had obtained a conditional bail in the adverse case in D-2 Sellur Police Station relating to Crime No.1388/2010. While so, the detaining authority has observed that there is real possibility of the detenu coming out on bail by filing bail applications in the ground case as well as the adverse cases, since in similar cases bails are granted by the concerned Court or Higher Courts, and that if he comes out on bail, he will indulge in future activities which will be prejudicial to the maintenance of public order. The detaining authority cannot prejudge that the detenu would come out on bail, by filing bail application. This observation of the detaining authority, in the considered opinion of this Court, reveals the non-application of mind and it is based only on pure presumptions, without relying upon any cogent material. Therefore, it is clear that there was non-application of mind on the part of the detaining authority in passing the order of detention. Hence on this ground the detention order is liable to be set aside. 5. With regard to the second ground raised by the counsel for the petitioner as regards the delay in considering the representation of the detenu, we find from the proforma submitted by the learned Additional Public Prosecutor that even though the representation of the detenu was received on 27.01.2011 and the remarks were called for on 28.01.2011, the same was received only on 04.02.2011. Even though 29.01.2011 and 30.01.2011 happened to be Government Holidays, there was a delay of 3 days in between the date on which the remarks were called for and the date on which remarks were received, which remains https://hcservices.ecourts.gov.in/hcservices/ 3 unexplained by the detaining authority. Secondly, even though the Minister for Law, Courts and Prisons dealt with the representation on 08.02.2011, the rejection letter was prepared on 14.02.2011 and the same was sent to the detenu only on 15.02.2011. Leaving aside the two Government Holidays, i.e. 12.02.2011 and 13.02.2011, there was a delay of 3 days between the date on which the Minister for Law, Courts and Prisons dealt with the representation and the date on which the rejection letter was sent to the detenu, which remains unexplained by the detaining authority. So, on this ground also, the detention order is liable to be set aside. 6. In view of the above, this habeas corpus petition is allowed and the order of detention passed by the second respondent in his Proceedings 007/BDFGISSV/2011 dated 13.01.2011 is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To 1.The Secretary to the Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The Commissioner of Police, Madurai City, Madurai. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 4.The Superintendent of Central Prison, Madurai Central Prison, Madurai. 5.The Joint Secretary to Government, Public (Law & Order), Fort Saint George, Chennai – 9. H.C.P(MD)No.65 of 2011 16.06.2011 KM NSV/27.6.11/3P/6C https://hcservices.ecourts.gov.in/hcservices/