1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Habeas Corpus Petition(MD)No.251 of 2011 E.Geetha .. Petitioner Vs. 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The Commissioner of Police, Tirunelveli District, Tirunelveli. 3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli .. 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 from the second respondent in No.55/BDFGISSV/2010 dated 01.11.2010 and quash the same and direct the respondents to produce the body or person of the brother of the petitioner by name U.Manikandan, male, aged 31 years, S/o.Udayar Pandian who has been illegally detained in Palayamkottai Central Prison, before this Court and set him at liberty forthwith. For Petitioner : Mr.K.Muthumalai For Respondents : Mr.P.Jothi, Addl.Public Prosecutor O R D E R (Order of the Court was made by S.RAJESWARAN, J.) Challenge is made to the order of detention passed by the second respondent in his Proceedings No.55/BDFGISSV/2010 dated 01.11.2010 whereby the petitioner's brother by name U.Manikandan 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". 2. Advancing the arguments assailing the order of the detention, the learned counsel appearing for the petitioner raised the following grounds:- (i) There is an unexplained delay of 15 days in considering the representation of the detenu and therefore, the detention order is https://hcservices.ecourts.gov.in/hcservices/ 2 vitiated. (ii) There was non-application of mind on the part of the detaining authority while passing the order of detention. In the ground case, though bail application has been filed and the same has been dismissed, the detaining authority goes on to state that there is real possibility of the detenu coming out on bail by filing bail applications. 3. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents and perused the records. 4. It is seen from the Proforma produced by the learned Additional Public Prosecutor before this Court that the remarks for the representation of the detenu were called for on 06.12.2010 and the same were received only on 20.12.2010. Thus, there was a delay of 14 days in between the date on which remarks were called for and the date on which the same were received, out of which, 5 days happened to be holidays i.e. 11.12.2010, 12.12.2010, 17.12.2010, 18.12.2010 and 19.12.2010 and in effect, there was an unexplained delay of 9 days in between. Similarly, the Minister for Law, Courts and Prisons dealt with the representation on 21.12.2010, but the rejection letter was sent to the detenu only on 29.12.2010. Thus there was a delay of 8 days in between these dates, out of which 25.12.2010 and 26.12.2010 happened to be holidays, and in effect there was a delay of 6 days in between. These two delays were unexplained by the detaining authority. 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. 5.Apart from that, it is seen in Paragraph No.5 of the detention order that "I am aware that he moved a bail petition before the District and Sessions Court, Tirunelveli in Cr.MP No.4700/2010 on 25.10.2010 in connection with the case in Tirunelveli Town Police Station Crime No.673/2010 and the same was dismissed on 27.10.2010." While stating so, the detaining authority goes on to state that there is real possibility of his coming out on bail by filing a bail application. The observation made by the detaining authority is only an expression of apprehension passing in the mind of the detaining authority without any basis or material much less cogent material. Under the circumstances, the order of detention has to be set aside. 6. Accordingly, the detention order in No.55/BDFGISSV/2010 dated 01.11.2010 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 (Crl.Side) /True copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 3 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, Tirunelveli District, Tirunelveli. 3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli 4. The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai-9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.K.Muthumalai, Advocate, SR.No.20480 KM GH : 14.07.2011 : 3p/6c HCP(MD)No.251 of 2011 28.06.2011 https://hcservices.ecourts.gov.in/hcservices/