1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.07.2011 CORAM: THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI and THE HONOURABLE Mrs.JUSTICE ARUNA JAGADEESAN Habeas Corpus Petition (MD) No.351 of 2011 V.Balasubramanian @ Ammavadai ... Petitioner Vs. 1.The State of Tamil Nadu, rep.by its Secretary, Home (Prohibition and Excise XVI) Department, Government of Tamil Nadu, Chennai-600 009. 2.The Commissioner of Police, Tirunelveli City Police, Tirunelveli. 3.The Superintendent, Central Prison, Palayamkottai, Tirunelveli. ... Respondents Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records relating to the impugned detention order passed by the Second Respondent in No.47/BDFGISSV/2010, dated 09.09.2010, detaining the petitioner under Act 14/1982, quashing the same and direct the third respondent to produce the petitioner, the detenue V.Balasubramanian @ Ammavadai, [TPDA No.3719] S/o.Velu Pillai, now detained in the Central Prison, Palayamkottai, at liberty. For Petitioner : Mr.R.Thiruamalmurugan For Respondents : Mr.P.Jothi, Addl.Public Prosecutor O R D E R (Order of the Court was made by P.JYOTHIMANI,J.) The petitioner, who is the detenu, has filed this petition challenging the order of detention, dated 09.09.2010, passed by the 2nd respondent under the Tamil Nadu Prevention of Dangerous activities of Bootleggers, Drug Offenders, Forest offenders, Goondas, https://hcservices.ecourts.gov.in/hcservices/ 2 Immoral Traffic offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982, branding him as a "Goonda" and directing him to be detained at the Central Prison, Palayamkottai. 2. The petitioner has challenged the impugned detention order on the ground that the 2nd respondent, who has passed the detention order, has wrongly arrived at a conclusion that there is a real possibility of his coming out on bail when no bail application was filed by the petitioner or pending before any court of law and, therefore, the detention order suffers from non-application of mind by the authority under the Act. That apart, it is stated that no valid reason has been given for terming the petitioner as a "Goonda". 3. Mr.R.Thirumalaimurgan, learned counsel appearing for the petitioner would challenge the detention order by restricting his claim on two grounds, namely (i) that the impugned order has been passed on surmises and conjectures, without application of mind; and (ii) that there is delay in the consideration of the representation submitted by the deenu. In support of his contentions, he relied on the following judgments. (a) (2006) 1 SCC (cri) 593 - T.V.Sravanan Alias S.A.R.Prasana Venkatachariar Chaturvedi vs. State through Secretary and another; and (b) (2007) (2) MWN (Cr.) 145 (DB) - Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chenai-9 and another. 4. On the other hand, it is the contention of Mr.P.Jothi, learned Additional Public Prosecutor, that there is no delay in either in calling for remarks or receiving such remarks from the detaining authority. He would further submit that though there has been some delay in preparing the rejection letter, there were intermittent holidays and further the delay was only six days. According to him, at the level of Under Secretary and the Deputy Secretary, there has been no delay since on the very day of submission of the file itself, i.e. on 30.09.2010, they have dealt with the file and submitted the same to the concerned Minister on 01.10.2010 and the Minister has also dealt with the file on the same day. Regarding the contention of the learned counsel for the petitioner that there is non-application of mind on the part of the authority who passed the detention order, learned Additional Public Prosecutor submitted that the detaining authority, after scrutinizing all the materials placed before him, has come to the conclusion that there is a real possibility of the detenu coming out bail and therefore the subjective satisfaction arrived at by the detaining authority was based on materials and does not call for any interference. https://hcservices.ecourts.gov.in/hcservices/ 3 5. We have considered the rival contentions and given our anxious thought to the issue involved in the above case. 6. At the outset, it is to be stated that on a reference to the pro-forma submitted by the learned Additional Public Prosecutor, it is seen that the petitioner was detained on 09.09.2010 under the impugned order of detention passed by the 2nd respondent. Thereafter, the petitioner has made a representation and the same has been received by the Government on 29.09.2010. After receipt of remarks from the detaining authority, the Under Secretary as well as the Deputy Secretary have dealt with the file on the next day i.e. on 30.09.2010. When the representation was sent to the concerned Minister on 01.10.2010, the Minister had also dealt with the same on the same day i.e. on 01.10.2010. However, the rejection order came to be prepared only on 11.10.2010 and there has been a delay of 10 days in preparing the rejection letter. It is brought to our notice that out of these 10 days, the following days, namely 02.10.2010, 03.10.2010, 09.10.2010 and 10.10.2010 were Government Holidays. Even after excluding the said four holidays, there has been a delay of six days in preparing the rejection letter and communicating the same to the petitioner and this delay remains unexplained. 7. It is relevant to point out that the Hon'ble Apex Court has taken a consistent stand that the idea of affording opportunity of making representation is that such representation should be considered expeditiously and in the absence of considering it at the earliest point of time, the constitutional guarantee given to a citizen in respect of his personal liberty is violated. In the cases referred to below, the Hon'ble Supreme Court has taken such a consistent view. (i) Rashid sk. v. State of West Bengal, reported in 1973(3) SCC 476; (ii) Ram Sukrya Mhatre v. R.D.Tyagi, reported in 1992 Supp.(3) SCC 65; (iii) Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others, reported in 1989 SCC (crl.) 554; (iv) Tara Chand v. State of Rajasthan, reported in 1980(2) SCC 321; (v) Raghavendra Singh vs. Superintendent, District Jail, reported in 1986(i) SCC 650; (vi) Rajammal v. State of Tamil Nadu, reported in 1999 (1) SCC 417; (vii) K.M.Abdulla Kunni v. Union of India, reported in 1991 (1) SCC 476. https://hcservices.ecourts.gov.in/hcservices/ 4 8. A Division of this Court in 2007 (2) MWN (cr.) 149 - Sumaiya vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai-9, has held that unexplained delay should be considered to be fatal to the detention order. Therefore, the mere contention raised by the learned Additional Public Prosecutor that the delay occurred is only administrative delay is not acceptable for the reason that such administrative delay would not bridge the breach of fundamental right guaranteed to a citizen in the Constitution of India. Therefore, on the ground of delay in considering the representation, the detention order is vitiated. 9. Now coming to the ground of non-application of mind, on a reference to the grounds of detention, it is clear that the 2nd respondent has chosen to state that the petitioner has moved a bail petition before the District and Sessions Court, Tirunelveli, in connection with the case in Melapalayam Police Station Crime No.677/2010 and that was dismissed on 02.09.2010. He further proceeds as if the petitioner is likely to move another bail application and if he comes out on bail he will indulge in further activities in future, which will be prejudicial to the maintenance of public orders. Such a view taken by the 2nd respondent in the grounds of detention is based on surmises and beyond reality. As it was held by the Hon'ble Supreme Court in (2006) 1 SCC (cri) 593 - T.V.Sravanan Alias S.A.R.Prasana Venkatachariar Chaturvedi vs. State through Secretary and another, in the absence of cogent materials available for the authorities for passing detention orders, mere ipse dixit of the detaining authorities regarding imminent possibility of the detenu's prayer for bail being granted cannot be a ground for passing the detention order. In the above case, the Hon'ble Apex Court has held as follows: "14.We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant had been rejected by the courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining 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. There was, therefore, no sufficient compliance with the requirements as laid down by this Court...." https://hcservices.ecourts.gov.in/hcservices/ 5 10. In view of the foregoing reasons, we are of the view that the detention order passed by the 2nd respondent is liable to be quashed on both the grounds of non-application of mind on the part of the detaining authority as well as on the ground of delay in considering the representation of the petitioner/detenu. 11. Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 09.09.2010, passed by the 2nd respondent in his proceedings No.47/BDFGISSV/2010, is quashed. The detenu V.Balasubramanian @ Ammavadai is directed to to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar To 1.The Secretary, Home (Prohibition and Excise XVI) Department, Government of Tamil Nadu, Chennai-600 009. 2.The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai – 9. 3.The Commissioner of Police, Tirunelveli City Police, Tirunelveli. 4.The Superintendent, Central Prison, Palayamkottai, Tirunelveli. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Order in H.C.P.(MD)No.351 of 2011 Dated:05.07.2011 gb NSV/14.07.11/5P/6C https://hcservices.ecourts.gov.in/hcservices/