IN THE HIGH COURT OF JUDIATURE AT MADRAS DATED: 24.06.2008 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE S.PALANIVELU HCP.NO.72 OF 2008 N.Srinivasan ...Petitioner Vs. 1. State represented by the Secretary to Government, Home, Prohibition & Excise Department, Fort St.George, Chennai 600 009. 2. The District Collector & District Magistrate, Nagapattinam District @ Nagapattinam ...Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the records of the second respondent pertaining to the order made in C.O.C.No.05/2008 dated 14.1.2008 in detaining the detenu under the Tamil Nadu Act 14 of 1982, as a Bootlegger and quash the same and direct the respondents to produce the detenue, namely, Malaimegam, wife of Nagavel, who is detained at the Special Prison for Women, Central Prison Campus, Tiruchirappalli, before this Court and set her at liberty. . For petitioner : Mr.O.S.Thilak Pasumbadiar For Respondents : Mr.M.Babu Muthu Meeran Additional Public Prosecutor O R D E R (Order of the Court was made by M.CHOCKALINGAM,J) The petitioner seeks the writ of habeas corpus in this petition whereby an order of the second respondent dated 14.1.2008 made in C.O.C.NO.05/2008 and the detention order of the detenue was made under Act 14 of 1982. 2. Affidavit filed in support of the petition is perused. Heard the learned counsel for the petitioner and also the learned Additional Public prosecutor for the State. The order under challenge is also perused. https://hcservices.ecourts.gov.in/hcservices/ 3. Concededly, on the strength of the recommendations made by the sponsoring authority and placing materials in respect of five adverse cases (1) Crime No.9 of 2007 of Velippalayam Police Station (2) Crime No.1537 of 2007 of Nagapattinam P.E.W.(3) Crime No.501 of 2007 of Velippalayam Police Station (4) Crime No.1921 of 2007 of Nagapattinam Police Station and (5) Crime No.641 of 2007 of Velipalayam Police Station registered under the provisions of Tamil Nadu Prohibition Act and a ground case in Crime No.21 of 2008 has been registered by the Nagapattinam Police Station under the provisions of Prohibition Act and also other materials ,the detaining authority ,on scrutiny of the materials, has recorded the finding that the authority has arrived at a subjective satisfaction that the said Malaimegam was termed as Bootlegger and since the authority took the view that the acts of the detenue as noticed from the materials available would indicate that they were prejudicial to the public order and health, she was termed as Bootlegger and a necessity arose to pass an order of detention in order to prevent her from indulging in such activities in future and hence made the detention order, which is the subject matter of challenge before this Court. 4. Advancing the arguments on behalf of the petitioner, learned counsel for the petitioner would submit that a pre-detention representation made on 7.1.2008 and the same was neither considered nor placed before the Advisory Board. It is settled law that the non- consideration of pre-detention representation would affect the order and hence it has got to be set aside. Learned counsel would further add that there way a delay in consideration of the post detention representation which was made on 22.1.2008, which has not been considered in time and it was inordinate and unreasonable and it has caused prejudice to the interest of the detenue and on those grounds, the detention order has got to be set aside. 5. Heard the learned Additional Public Prosecutor on the above contentions. 6. The Court paid its anxious consideration to the submissions made. As could be seen from the available materials, the order of detention came to be passed by the second respondent on 14.1.2008 terming the detenue as Bootlegger. On the strength of the recommendations made by the Sponsoring authority, it is not in controversy that five adverse cases and one ground case were registered. While the order under challenge came to be passed on 14.1.2008, a pre detention representation was made by the Son of the detenue on 7.1.2008. Learned counsel for the respondent for the respondent State would submit that no such representation was made, but, a copy of the said representation with postal acknowledgment received was produced. This would clearly indicative of the fact that such representation was made on 7.1.2008 and it was received by the authority, but nowhere in the order such representation was considered or disposed of, is referred to. https://hcservices.ecourts.gov.in/hcservices/ Hence it would be quite clear that such a pre-detention representation made was not considered by the authority. It is settled law that when a pre detention representation is made, a duty is cast upon the detaining authority to consider the same and orders have got to be passed thereafter. But, in the instant case, such a representation made on 7.1.2008 was not at all considered by the detaining authority. Once the detaining authority has not considered the pre-detention representation, there was no necessity for placing it for approval before the advisory board and it has also not been done, which in the opinion of this Court, would be suffice to set aside the order of detention. 7. In so far as the delay in considering the post representation is considered, the State has placed all the material particulars regarding the date of representation, process being considered and also the date of rejection etc., The said representation was dealt with by the Minister for Revenue and Law on 25.3.2008 and the rejection was made on 1.4.2008, thus it would be quite clear that there was seven days delay, out of which two days were holidays according to the learned counsel for the State and thus five days delay has occurred which is unexplained. Under such circumstances, the delay caused in the opinion of this Court is unreasonable and caused prejudice to the interest of the detenue. Hence, the detention order is vitiated and is liable to be set aside. 7. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in C.O.C.NO.05/2008 DATED 14.01.2008, The detenue, namely, Malaimegam, who is now confined at Special Prison for Women at Central Prison Campus, Tiruchirappalli, is directed to be set at liberty forthwith unless her presence is required in connection with any other case. Sd/ Asst. Registrar /true copy/ Sub Asst. Registrar VJY 1.The Secretary to Government, Home, Prohibition & Excise Department, Fort St.George, Chennai 600 009. 2. The District Collector & District Magistrate, Nagapattinam District @ Nagapattinam. https://hcservices.ecourts.gov.in/hcservices/ 3. The Superintendent for Women, Central Prison Campus, Tiruchirapalli. 4. The Joint Secretary to Government, Public (Law & Order) Fort St. George, Ch-9. 5. The Public Prosecutor, High Court, Madras. Krd / 7.7.08 HCP.NO.72 OF 2008 https://hcservices.ecourts.gov.in/hcservices/