1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD) No.160 of 2011 Panju .. Petitioner Vs. 1.The Secretary, Government of Tamilnadu, Home, Prohibition and Excise Department, Fort St.George, Chennai – 9. 2.The District Collector and District Magistrate, Theni District, Theni. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the records pertaining to the order of detention passed by the third respondent in his proceedings Detention Order No.25 of 2010 dated 19.12.2010 and quash the same as illegal and produce the detenu, namely, Maha @ Mahamuni, aged 37 son of Karuthakannu Thevar, who is confined in Central Prison, Madurai before this Court and set him at liberty. For petitioner : Mr.D.Venkatesh For respondents : Mr. P.Jothi, Addl.Public Prosecutor ORDER (Order of the Court was made by S.RAJESWARAN, J) The petitioner is the wife of the detenu viz., Maha @ Mahamunis. Challenging an Order of Detention of the second respondent dated 19.12.2010 in Detention Order No.25/2010 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. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents and perused the order under challenge. https://hcservices.ecourts.gov.in/hcservices/ 2 3. As pointed out by the learned counsel appearing for the petitioner, there is non-application of mind on the part of the detaining authority. Actually, the detenu was arrested on 7.12.2010 and produced before the Judicial Magistrate, Uthamapalayam on the same day and remanded to judicial custody upto 21.12.2010 in connection with the ground case registered by Cumbum South Police Station in Crime No.717/10 under Sections 294(b), 323, 307 IPC. Apart from this case, he was involved in two adverse cases. The Bail Application filed in Cr.M.P.No.23407/2010 was dismissed. Thus, the detenu was in custody in respect of the ground case. But, in the order of detention, the detaining authority has pointed out that there is real possibility of his coming out on bail by filing another bail application before the same Court or Higher Court, and if he comes out on bail he will indulge in future activities, which will be prejudicial to the maintenance of public order. 4. For better appreciation of the above, Paragraph No.5 of the order is extracted below:- "5. I am aware that Thiru.Maha @ Mahamuni, was remanded in connection with the Cumbum South Police Station Crime No.717/2010 has moved a bail application before Judicial Magistrate Court, Cr.M.P.No.23407/2010, bail petition was dismissed on 7.12.2010. I am also aware that there is a real possibility of his coming out on bail by filing another bail application for the above case before the same Court or Higher Court, since in similar cases, bails are granted by the concerned court or Higher Courts after lapse of time. If he comes out on bail he will indulge in future activities, which will be prejudicial to the maintenance of public order..." 5. A perusal of the same would show that there is no cogent material available in this case asserting that the detenue would come out on bail as the detenue did not make any attempt to file any bail application. It is only an apprehension that was passing in the mind of the detaining authority that the detenue would come out on bail by filing another bail application. 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. 6. Secondly, it is seen in the Proforma produced by the learned Additional Public Prosecutor before this Court that the representation of the detenu was received on 28.2.2011, remarks were called for on 01.3.2011 but remarks were received only on 15.3.2011. Thus, there was a delay of 14days, out of which, 4 days happened to be holidays i.e. 05.03.2011, 06.03.2011, 12.03.2011 and 13.03.2011 and in effect, there was a delay of 10 days in considering the representation, which remains unexplained. Apart from this, there is delay of 5 days while considering the representation by the https://hcservices.ecourts.gov.in/hcservices/ 3 Minister for (Law, Court & Prisons). The Minister for (Law, Court & Prisons) dealt with the representation on 16.3.2011 but rejection letter was served on the detenue only on 28.3.2011 and in between, there were four holidays i.e. on 19.3.2011, 20.3.2011, 26.3.2011 and 27.3.2011 and in effect, there was a delay of 5 days, which remain unexplained. 7. 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. 8. Accordingly, the Detention Order No.25 of 2010 dated 19.12.2010 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/- Deputy Registrar (LA) /True Copy/ Assistant Registrar TO 1. THE SECRETARY, GOVERNMENT OF TAMILNADU, HOME, PROHIBITION AND EXCISE DEPARTMENT, FORT ST.GEORGE, CHENNAI-9 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, THENI DISTRICT, THENI. 3. THE JOINT SECRETARY TO GOVERNMENT, PUBLIC (LAW & ORDER), FORT SAINT GEORGE, CHENNAI - 9. 4. THE SUPERINTENDENT, CENTRAL PRISON, MADURAI. 5. THE SUPERINTENDENT OF POLICE, THENI DISTRICT. 6. THE DIRECTOR GENERAL OF POLICE, CHENNAI-4. 7. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. H.C.P.(MD)No.160 of 2011 20.6.2011 asvm NSV/8.7.11/3P/8C https://hcservices.ecourts.gov.in/hcservices/