1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.04.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI Habeas Corpus Petition (MD) No.61 of 2011 Murali Kannan, S/o.Allimuthupillai ...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 Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a writ of habeas corpus calling for the entire records connected with the detention order of the Respondent No.2 in No.04/BDFGISSV/2011, dated 04.01.2011, quashing the same and consequently setting the petitioner's son by name Karthik @ Koradu Karthik, S/o.Muralikannan, aged about 24 years, detained in Madurai Central Prison, at liberty. For Petitioner : Mr.R.Alagumani For Respondents : Mr.M.Daniel Manoharan, Addl.Public Prosecutor. O R D E R (Order of the Court was made by G.M.AKBAR ALI,J.) The petitioner, who is the father of the detenu, has filed this petition challenging the order of detention, dated 04.01.2011, clamped by the 2nd respondent under the 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 14/1982), on the detenu branding him as a "Goonda" and directing him to be detained at the Central Prison, Madurai. 2.Mr.R.Alagumani, learned counsel for the petitioner, submitted that though many grounds have been raised in the petition, he confines his submission on two grounds, namely (i) non-application of mind on the part of the detaining as to the real possibility of the detenu coming out bail; and (ii) inordinate delay in consideration of the representation of the detenu. It is submitted that when it is admitted by the detaining authority himself that the earlier bail application filed by the detenu in the ground case was dismissed and thereafter he has not filed any application before any court of law, the conclusion arrived at by the Detaining Authority that there is a real possibility of the detenu coming out on bail is mere ipse dixit of the detaining authority and without application of mind. In support of his submission, the learned counsel relied on the judgment of the Supreme Court in A.Shanthi v. Government of Tamil Nadu [(2006) 8 SCC 711]. https://hcservices.ecourts.gov.in/hcservices/ 2 3.Regarding delay, the learned counsel appearing for the petitioner submitted that the delay in considering the representation made by the detenu, received by the Government on 18.01.2011, which, according to the petitioner, vitiates the detention order. Learned counsel for the petitioner submitted that though the concerned Minister has dealt with the file on 08.02.2011, the rejection letter came to be prepared only on 14.02.2011, after a delay of five days, and ultimately the same was served on the detenu on 17.02.2011. Learned counsel submitted that the delay occurred in communicating the result of consideration of the representation remains unexplained and this unexplained delay vitiates the order of detention. 4.The learned Public Prosecutor would submit that the Detaining Authority has considered all the materials placed before him and after analysing the same, the detaining authority has formed his opinion as to the possibility of the detenu coming out on bail and therefore there is nothing to interfere with the order of detention. Regarding the alleged delay in communicating the result of consideration of the representation, there were two holidays in between 08.02.2011 and 14.02.2011 and thus there were only three days delay, which is not an inexcusable delay. Therefore, according to the learned Additional Public Prosecutor, both the grounds are not available to the petitioner and consequently the petition is liable to be dismissed. 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 04.01.2011. The grounds raised by the petitioner are that 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. Further, there is delay in communicating the result of consideration of the representation of the detenu. 7.It is by now well settled that in all detention laws, the orders of detention and its continuance should be in conformity with Article 22 of the Constitution of India and even a slightest infraction of the constitutional protection enshrined therein would be a valid ground to set the detenu at liberty. Therefore, there must be cogent materials before the Authority passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from materials on record and must not be ipse dixit of the Authority passing the detention order. In the decision relied on by the learned counsel for the petitioner [(2006) 9 SCC 711] cited supra, the Hon'ble Supreme Court has held as follows: "4.In similar circumstances, this Court in T.V.Saravanan v. State - [(2006) 2 SCC 664], directed 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 https://hcservices.ecourts.gov.in/hcservices/ 3 authority unsupported by any material whatsoever. There was 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 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." 8.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. 9.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. 10.That being the legal position, in the present case, when the bail application filed by the detenu was dismissed and he has not filed any further application after dismissal of the earlier bail application, the Detaining Authority, without any material, much less cogent materials, has recorded his subjective satisfaction as to the real possibility of the detenu coming out on bail on mere ipse dixit and clamped the order of detention. In paragraph No.5 of the Grounds of Detention, the detaining authority has observed as follows: "(5)I am aware that Thiru.Karthik @ Koradu Karthik, s/o.Muralikannan, is now in remand in the ground case in C4 Thilagar Thidal Police Station Cr.No.3378/2010 and lodged at the Central Prison, Madurai. Further, I am also aware that he had obtained conditional bail in the above mentioned 2 adverse cases and his bail application in the ground case in C4 Thilagar Thidal Police Station Cr.No.3378/2010 was dismissed on 20.12.2010 vide Crl.MP No.6826/2010 by the JM No.2, Madurai and he has not filed further bail application in the ground case before any court so far. However, I am aware through the sttement of Thiru.Muralikannan father of Karthik @ Koradu Karthik that he is making efforts to file further bail application in the above said ground case before the concerned court. Hence, there is a real possibility of his coming out on bail in the above said ground case, by filing further bail application, since in similar cases bail is granted by the concerned court or higher courts ...." https://hcservices.ecourts.gov.in/hcservices/ 4 11.As rightly pointed out by the learned counsel for the petitioner, the detenu has not filed bail applications in the above said cases after dismissal of earlier application. In such circumstances, the subjective satisfaction arrived at by the detaining authority as to the real possibility of the detenu coming out on bail in the case is not based on any materials as held by the Ho'ble Supreme Court in the decision cited supra. Therefore, we are of the considered view that the impugned detention order has been passed mechanically and without application of mind and as such the detention order, dated 04.01.2011, is vitiated. 12.Regarding the delay aspect, the learned Additional Public Prosecutor produced before us the pro-forma containing dates and events. It is seen from the said pro-forma, the representation of the detenu was considered by the concerned Minister on 08.02.2011. However, the rejection order came to be prepared only on 14.02.2011. We are of the view that preparation of rejection letter is only a ministerial act and it does not require any judicious consideration. In such circumstances, the same should have been prepared on the next day and communicated the detenu. However, in this case such rejection letter was prepared after a delay of five days. Though it is submitted by the learned Additional Public Prosecutor that there were two holidays in between 08.02.2011 and 14.02.2011, still there were three working days and there is no explanation for such a delay occurred in preparing the rejection letter. 13.In District Collector vs. S.K. Hasmath Beevi, reported in 2001(5) SCC 401, the Supreme Court has held as follows: "Article 22(5) gives the detenu the right to make a representation against an order of detention and such right must be afforded as expeditiously as possible. In other words, the detenu must be afforded the earliest opportunity of making a representation against the order of detention. Article 22(5) in itself does not say to whom a representation could be made or who will consider the representation, but because of the language of Article 22(5) and because of the fact that an Order of detention affects the liberty of a citizen, without laying down any hard and fast rule as to the measure of time taken by the appropriate authority for considering a representation, it should be considered and disposed of by the Government as soon as it is received." 14.In Rajammal Vs. State of Tamil Nadu, reported in 1999 (1) SCC 417, the Apex Court has held that the representation was received by the Secretary to the government on 05.02.1998, the government which received the remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. Thereafter, the files were submitted to the minister, who received it on tour. Finding that there was no valid explanation for the delay from 09.02.1998 to 14.02.1998, the Apex Court held that the delay has vitiated the detention. 15.Contending that even a delay of three days in disposal of representation would have the effect of vitiating order of detention, learned counsel for the petitioner has drawn our attention to the decision of this Court in 2007(2)MWN(Cr.)145 – Sumaya Vs. The Secretary to Govt., https://hcservices.ecourts.gov.in/hcservices/ 5 wherein the Division Bench has observed as under in paragraphs 5.3 and 5.4 as under: "5.3.The right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India, vide Ram Sukrya Mhatre v.R.D. Tyagi, 1992 Supp.(3) SCC 65. 5.4 Any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal, vide Tara Chand v. State of Rajasthan, 1980 (2) SCC 321, and Raghavendra Singh v. Supdt., Dist.Jail,l 1986 (1) SCC 650." We are in respectful agreement with the view taken by the Division Bench. 16.Law is well settled that since personal liberty of a person is involved in the preventive detention, the authorities concerned are required to deal with the representation with utmost dispatch and promptitude, without any unnecessary delay. Right to expeditious disposal of the representation by the State Government includes the right to communication of the result of the representation. The unexplained delay in the consideration and disposal of the representation would have the effect of vitiating the detention order and accordingly the detention order is liable to be quashed. 17.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 04.01.2011, passed by the 2nd respondent in his proceedings No.04/BDFGISSV/2011, is quashed. The detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. SD ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR gb To: 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. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 5.The Joint Secretary to Government Public (Law and Order)Fort St. George, Chennai. DM:2011:JUNE:16:: Order in H.C.P.(MD)No.61 of 2011 Dated:25.04.2011 5P:6C:: https://hcservices.ecourts.gov.in/hcservices/