1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:28.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Habeas Corpus Petition(MD)No.83 of 2011 Muthulakshmi :Petitioner -Vs- 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The District Magistrate/District Collector, Virudhunagar District. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. :Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Habeas Corpus calling for the entire records connected with the detention order of Respondent No.2 in No.Cr.M.P.No.02/2011 (GOONDA) dated 20.01.2011 and quash the same and direct the respondents to produce the body and person of the petitioner's husband by name Thandava Thevar @ Thandavan aged 35 years, son of Vairavan @ Karuppathevar detained in Madurai Central Prison before this Court and set him at liberty forthwith. For Petitioner : Mr.R.Alagumani For Respondents: Mr.P.Jothi, Addl.Public Prosecutor ORDER (Order of the Court was made by S.RAJESWARAN, J.) Challenge is made to the order of detention passed by the second respondent in his Proceedings Cr.M.P.No.02/2011 (GOONDA) dated 20.01.2011 whereby the petitioner's husband by name Thandava Thevar @ Thandavan was ordered to be detained under the provisions of 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 of 1982) branding him as a "GOONDA". 2.Advancing the arguments assailing the order of the detention, the learned counsel appearing for the petitioner raised the following grounds:- (i)There is an unexplained delay of 12 days in considering the representation of the detenu and therefore, the detention order is vitiated. (ii)There was non-application of mind on the part of the detaining authority while passing the order of detention. In the ground case, though bail application has been filed and the same is pending, the detaining authority goes on to state that if he is let to remain at large, he will further indulge in such activities in future, which will be prejudicial to the maintenance of public order. 3.Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents and perused the records. https://hcservices.ecourts.gov.in/hcservices/ 2 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 04.02.2011 and the remarks were received only on 10.02.2011 Thus, there was a delay of 6 days in between the date on which remarks were called for and the date on which the remarks were received, out of which, 2 days happened to be holidays i.e. 05.02.2011 and 06.02.2011 and in effect, there was a delay of 4 days in between. Similarly, the Minister for Law, Courts and Prisons dealt with the representation on 15.02.2011, but the rejection letter was sent to the detenu only on 02.03.2011. Thus there was a delay of 13 days in between these dates, out of which 16.02.2011, 19.02.2011, 20.02.2011, 26.02.2011 and 27.02.2011 happened to be holidays, and in effect there was a delay of 8 days in between. These two delays were unexplained by the detaining authority. 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. 5.Apart from that, it is seen in Paragraph No.5 of the detention order that "In the ground case against him, he has filed a bail application in the Principal Sessions Court, Srivilliputhur vide Cr.M.P.145/11 and it is pending trial." While stating so, the detaining authority goes on to state that if he is let to remain at large, he will further indulge in such activities in future, which will be prejudicial to the maintenance of public order. When the bail application was pending, the observation made by the detaining authority that if he is let to remain at large, he will further indulge in such activities in future, which will be prejudicial to the maintenance of public order, is only an expression of apprehension passing in the mind of the detaining authority without any basis or material much less cogent material. Under the circumstances, the order of detention has got to be set aside. 6.Accordingly, the detention order in Cr.M.P.No.02/2011 dated 20.01.2011 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 (P&A) / TRUE COPY / Sub Assistant Registrar To: 1.The Secretary to the Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The District Magistrate/District Collector, Virudhunagar District. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. 4.The Joint Secretary to Government,Public (Law & Order),Fort.St.George,Chennai-9 5.The Additional Public Prosecutor,Madurai Bench of Madras High Court,Madurai KM HCP(MD)No.83 of 2011 RP/07.07.2011/2P/6C. 28.06.2011 https://hcservices.ecourts.gov.in/hcservices/