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 H.C.P.(MD) No.37 of 2011 M.Santhanamari .. Petitioner vs. 1.The State of Tamilnadu, rep. by its Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 9. 2.The District Collector and District Magistrate, Thoothukudi District, Thoothukudi. 3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the records relating to the detention order dated 19.10.2010 passed by the 2nd respondent in his proceedings No.HS(M)Confdl.No.45/2010 declaring the detenu as "Goonda" and quash the same as illegal and consequently to direct the respondents to set the detenu, the petitioner's husband Muniasamy, son of Shanmugasundaram at liberty confined at Central Prison, Palayamkottai. For petitioner : Mr.R.Gandhi For respondents : Mr.Daniel Manoharan, Addl.Public Prosecutor ORDER (Order of the Court was made by S.RAJESWARAN, J) The petitioner is the wife of the detenu. Challenging the Order of Detention in No.H.S.(M)Confdl.No.45/2010 dated 19.10.2010 passed by the second respondent branding the detenu, namely, Bala @ acid Bala, 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 https://hcservices.ecourts.gov.in/hcservices/ 2 Corpus Petition has been filed by the petitioner/wife of the detenu. 2. Learned counsel appearing for the petitioner, Mr.R.Gandhi, argued that the detention order is liable to be set aside on the following grounds:- (i) There is an unexplained delay of 8 days and 6 days at different stages in considering the representation of the detenu and therefore, the detention order is vitiated. (ii) There was no application of mind on the part of the detaining authority while passing the order of detention. Though the detaining authority was aware that the detenu was in remand and the bail applications filed in Arumuganeri P.S. Crime No.354/10 and also in Crime No.340/10 by the detenue were dismissed on 28.9.2010, the detaining authority observed that there is a real possibility of his coming out on bail by filing another application. The apprehension entertained in the mind of the detaining authority is not justifiable, for the reason that he has prejudged the matter. Even if the detenu filed bail applications, the detaining authority could not foresee the nature of order to be passed by the Court. 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 representation of the detenu was received on 13.1.2011, remarks were called for on 14.1.2011 but remarks were received only on 01.2.2011. Thus, there was a delay of 18 days, out of which, 8 days happened to be holidays and in effect, there was a delay of 10 days in considering the representation, which remains unexplained. Later, Minister for (Law, Courts & Prisons) dealt with the representation on 3.2.2011 but rejection letter came to be prepared only on 14.2.2011. In between, there was delay of 10 days, out of which, 4 days were holidays and the delay of remaining 6 days remain unexplained. 5. 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. 6. Apart from that, it is seen in Paragraph No.5 of the detention order that- "5. I am aware that Thiru.Muniasamy has been remanded to judicial custody by the Judicial Magistrate, Tiruchendur on 10.9.2010 to till 24.9.10 in the ground case and his remand was extended till 22.10.10. He is a remand prisoner lodged in the Central Prison, Palayamcottai. I am aware that Thiru. Muniasamy is in remand in Arumuganeri P.S.Cr.No.354/10 anda lso in Arumuganeri P.S.Cr.No.340/10. He has filed a bail application in both cases in the court of Principal Sessions, Thoothukudi in Cr.M.P.No.1952/10 and 1944/10 respectively, https://hcservices.ecourts.gov.in/hcservices/ 3 which were dismissed on 28.9.10. But there is a real possibility of his coming out on bail by filing another bail applications before the same or higher courts... " When the bail applications filed by the detenu were dismissed and there was no bail application pending before any Court of law, the observation made by the detaining authority that there was a real possibility of the detenu coming out on bail by filing a bail application in the above case is only an expression of apprehension passing in the mind of the detaining authority without any basis or material much less cogent material. Even if the detenu filed bail applications, the detaining authority could not foresee the nature of order to be passed by the Court. Thus, the order of detention does not reflect any subjective satisfaction of the detaining authority. Under the circumstances, the order of detention is liable to be set aside. 7. Accordingly, the detention order in No.H.S.(M) Confdl.No.45/2010 dated 19.10.2010 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 To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai – 9. 2.The District Collector and District Magistrate, Thoothukudi District, Thoothukudi. 3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +One Cc to Mr.M.Ajmalkhan, Advocate, SR.No.15066 asvm rl/6c – 23.5.2011 H.C.P.(MD)No.37 of 2011 25.4.2011 https://hcservices.ecourts.gov.in/hcservices/