1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD) No.165 of 2011 Jafar Sadiq @ Mohamed Jafar Sadiq .. Petitioner vs. 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 Inspector of Police, Arumuganeri Police Station, Thoothukudi District. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the entire records pertaining to the order of detention passed by the 2nd respondent vide his proceedings in H.S.(MD).Confdl.No.51/2010 dated 13.10.2010 and quash the same and consequently set the detenu (JAFAR SADIQ @ MOHAMED JAFAR SADIQ, S/o.Sahul Hameed, Male, aged 24 years) who is presently confined at Central Prison, Palayamkottail, Tirunelveli at liberty. For petitioner : Mr.R.Anand For respondents : Mr.C.Ramesh Addl.Public Prosecutor O R D E R (Order of the Court was made by S.RAJESWARAN, J.) The petitioner is the detenu, namely, Jafar Sadiq @ Mohamed Jafar Sadiq, who was detained by order dated 13.10.2010 in H.S.(M).Confdl.No.51/2010 under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug https://hcservices.ecourts.gov.in/hcservices/ 2 Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding the detenu as a “Goonda”. 2. Mr.R.Anand, the learned counsel appearing for the petitioner attacked the order of detention firstly on the ground that the Detaining Authority has failed to consider the fact that there is no imminent possibility of the detenu coming out on bail. It is submitted that though the bail applications filed by the detenu in the adverse cases as well as in the ground case were all came to be dismissed and thereafter, the detenu has not filed any bail application either in adverse cases or in the ground case. Therefore, the reasons stated by the Detaining Authority that there is a real possibility of the detenu coming out on bail in all the cases pending against him and indulge in activities prejudicial to the maintenance of public order in future is mere ipse dixit of the detaining authority and without any cogent materials and this shows non- application of mind on the part of the detaining authority. The learned counsel relied on the Full Bench decision of this Court reported 2005 MLJ (CRI.) 1101 (Thirupathi.K. Vs. District Magistrate and District Collector, Tiruchirapalli). 3.The second ground of attack on the order of detention was that there there is an unexplained delay of 8 days in considering the representation of the detenu and therefore, the detention order is vitiated. Apart from that, at another stage, there was delay of 9 days. Though File was circulated to Hon'ble Minister (Law, Courts and Prisons) on 21.01.2011, rejection letter was prepared only on 07.02.2011. In the interregnum, there was delay of 16 days, out of which 7 days were holidays, the remaining 9 days delay was not explained. 4. We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 5. In order to appreciate the submissions made by the learned counsel appearing for the petitioner, we deal with the grounds one by one. 6. As far as the ground No.1 is concerned, in Paragraph No.4 of the detention order, the detaining authority has stated that in the ground case, the bail application filed by the detenu was dismissed. Therefore, there is a real possibility of his coming out on bail by filing another bail application in the concerned court or higher court. This aspect has been dealt in Narcotic Control Bureau Vs. Raju Alias Natarajan [(2006) 9 Supreme Court Cases 711] wherein the Hon'ble Supreme Court has observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ 3 "4. In similar circumstances, this Court in T.V.Saravanan v. State [(2006) 2 SCC 664] directed the release of the detenu. Counsel for the State is unable to distinguish that judgment. This Court in T.V.Saravanan has held that 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 would 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." 7. 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. 8.Now, coming to the other ground raised by the learned counsel for the petitioner that there was a delay in considering the representation at two stages are concerned, 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 31.12.2010, remarks were called for on 03.01.2011 but remarks were received only on 18.01.2011. Thus, there was a delay of 17 days, out of which, 7 days happened to be holidays and in effect, there was a delay of 10 days in considering the representation, which remains unexplained. Apart from that, at another stage, there was delay of 9 days. Though File was circulated to Hon'ble Minister (Law, Courts and Prisons) on 21.01.2011, rejection letter was prepared only on 07.02.2011. In the interregnum, there was delay of 16 days, out of which 7 days were holidays, the remaining 9 days delay was not explained. 9.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. On that ground also, the impugned order of detention is liable to be quashed. 10.For the aforesaid reasons, we are of the view that detention order is vitiated and the same is liable to be set aside. Accordingly, the detention order in H.S.(M). Confdl.No.51/2010 dated 13.10.2010 passed by the second respondent is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be released forthwith https://hcservices.ecourts.gov.in/hcservices/ 4 unless his presence is required in connection with any other case. Sd/- Assistant Registrar(C.O) /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 Inspector of Police, Arumuganeri Police Station, Thoothukudi District. 4.The Superintendent, Central Prison, Palayamkottai, Tirunelveli District 5.The Joint Secretary to Government, Public (Law and Order), Fort Saint George, Chennai-9 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai MPK rl/7c – 6.7.2011 H.C.P.(MD) No.165 of 2011 14.06.2011 https://hcservices.ecourts.gov.in/hcservices/